[Federal Register: November 2, 2011 (Volume 76, Number 212)]
[Rules and Regulations]
[Page 68015-68017]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02no11-17]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 2, 22, and 52
[FAC 2005-54; 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
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: DoD, GSA, and NASA have adopted as final, without change, an
interim rule amending the Federal Acquisition Regulation (FAR) to
implement the Department of Labor (DOL) regulations that implemented
the Executive Order (E.O.), Notification of Employee Rights Under
Federal Labor Laws.
DATES: Effective Date: November 2, 2011.
FOR FURTHER INFORMATION CONTACT: Ms. Clare McFadden, Procurement
Analyst, at (202) 501-0044, for clarification of content. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-54, FAR
Case 2010-006.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published an interim rule in the Federal
Register at 75 FR 77723 on December 13, 2010, to implement E.O. 13496,
Notification of Employee Rights Under Federal Labor Laws, as
implemented by the DOL. The E.O. requires contractors to display a
notice for 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. Public comments were due on or before
February 11, 2011. Three respondents submitted nine comments on the
interim rule.
II. Discussion and Analysis of the Public Comments
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the public comments in the
[[Page 68016]]
development of the final rule. A discussion of the comments and the
changes made to the rule as the result of those comments are provided
as follows:
A. General Comments
Comment: One respondent stated support for the interim rule and
urged that a final rule be adopted as quickly as possible. The
respondent noted that the need to facilitate timely implementation of
the E.O. constitutes a compelling reason for issuance of an interim
rule.
Response: An interim rule was published to facilitate the
implementation of the E.O., and this rule is being converted to a final
rule, herein.
Comment: Another respondent referred to the interim rule as an
``invasion of privacy,'' comparing this to a requirement to post the
Constitution, Bill of Rights, or tax laws.
Response: The comment is noted but does not warrant a change to the
FAR. The FAR is implementing a requirement of the E.O. and the DOL
regulations. The E.O. is premised on the policy that it is beneficial
to the Government to rely on contractors whose employees are informed
of their rights under Federal labor laws.
B. Comment on the FAR Text
Comment: A respondent recommended deleting the phrase at FAR
22.1605(a) ``including acquisitions for commercial items and
commercially available off-the-shelf items.''
Response: DOL is the regulatory agency with primary responsibility
for implementation of the E.O. The DOL final rule does not provide an
exception for the acquisition of commercial items, including
commercially available off-the-shelf items. Therefore, the FAR rule
must be consistent with the DOL rule in its application to commercial
items.
C. Comments on FAR Clause 52.212-5
Comment: A respondent noted that the clause should be listed as
subsection (28), not (27), at FAR 52.212-5(b).
Response: The correction to the number has been made.
Comment: A respondent requested the deletion of the phrase ``flow
down required in accordance with paragraph (f) of FAR clause 52.222-
40'' at 52.212-5(e)(1)(vii) and 52.212-5 Alternate II(e)(1)(ii)(G).
Response: As noted earlier (see response at section II.B. above),
the FAR is implementing the DOL final rule. The DOL rule very
specifically set the requirements for flow down of the requirement for
posting the National Labor Relations Act poster to subcontracts at all
tiers that exceed $10,000.
D. Comments on FAR Clause 52.222-40
Comment: A respondent requested clarification of the clause at FAR
52.222-40 so that it is obvious whether contractors and subcontractors
are required to use the DOL poster or have permission to create a
company-specific poster, as long as the latter meets the DOL's size,
form, and content requirements.
Response: The language at FAR 22.1602(a) and at FAR 52.222-40(a)
indicates that an employer does not have to use the DOL poster but can
use its own poster as long as it includes the requisite information--
the DOL's size, form, and content requirements.
Comment: A respondent suggested revising FAR 52.222-40(a)(1) to
read as follows:
``Physical posting of the employee notice shall be in
conspicuous places in and about the plants and offices of
contractors and subcontractors, in the languages employees speak, 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.''
The respondent stated that the following language at FAR 52.222-
40(a), regarding where the poster must be posted and what languages
must be used in the poster, is redundant:
``* * * 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).''
Response: DOL's final rule was published in the Federal Register at
75 FR 28368 on May 20, 2010, and it incorporated that agency's
requirements for implementation of the E.O. at 29 CFR 471. The FAR is
being updated to incorporate the DOL requirements into corresponding
sections of the FAR. Since DOL has the primary responsibility for
implementation of the E.O., it is not appropriate to make any
substantive change in the FAR clause.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is a significant regulatory action and, therefore, was subject to
review under section 6(b) of E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
IV. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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 the rule implements the
Department of Labor's (DOL) final rule that implemented E.O. 13496,
Notification of Employee Rights Under Federal Labor Laws. This E.O.
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.
DOL certified in its final rule (published in the Federal Register at
75 FR 28368 on May 20, 2010, with an effective date of June 21, 2010)
that its rule would not have a significant economic impact on a
substantial number of small entities. After reviewing DOL's
certification, DoD, GSA, and NASA concurred that no regulatory
flexibility analysis was needed. DoD, GSA, and NASA did not receive
comments from small entities in response to the invitation to do so
included in the FAR interim rule that published in the Federal Register
at 75 FR 77723 on December 13, 2010.
V. Paperwork Reduction Act
The final rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 1, 2, 22, and 52
Government procurement.
[[Page 68017]]
Dated: October 21, 2011.
Laura Auletta,
Acting Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Interim Rule Adopted as Final Without Change
Accordingly, the interim rule amending 48 CFR parts 1, 2, 22, and
52, which was published in the Federal Register at 75 FR 77723 on
December 13, 2010, is adopted as a final rule without change.
[FR Doc. 2011-27779 Filed 11-1-11; 8:45 am]
BILLING CODE 6820-EP-P