[Federal Register Volume 63, Number 119 (Monday, June 22, 1998)]
[Rules and Regulations]
[Pages 34073-34075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16116]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 22 and 52

[FAC 97-05; FAR Case 96-610; Item V]
RIN 9000-AH99


Federal Acquisition Regulation; Rehabilitation Act, Workers With 
Disabilities

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 have agreed on an interim rule amending 
the Federal Acquisition Regulation (FAR) to implement revised 
Department of Labor regulations regarding affirmative action to employ 
and advance in employment qualified individuals with disabilities. This 
regulatory action was not subject to Office of Management and Budget 
review under Executive Order 12866, dated September 30, 1993, and is 
not a major rule under 5 U.S.C. 804.

DATES: Effective June 22, 1998.
    Comment Date: Comments should be submitted to the FAR Secretariat 
at the address shown below on or before August 21, 1998 to be 
considered in the formulation of a final rule.

ADDRESSES: Interested parties should submit written comments to: 
General Services Administration, FAR Secretariat (MVR), Attn: Ms. 
Laurie Duarte, 1800 F Street, NW, Room 4035, Washington, DC 20405.
    E-Mail comments submitted over the Internet should be addressed to: 
[email protected].
    Please cite FAC 97-05, FAR case 96-610 in all correspondence 
related to this case.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC 20405, (202) 501-4755, for information 
pertaining to status or publication schedules. For clarification of 
content, contact Mr. Jack O'Neill, rocurement Analyst, at (202) 501-
3856. Please cite FAC 97-05, FAR case 96-610.

SUPPLEMENTARY INFORMATION:

[[Page 34074]]

A. Background

    On May 1, 1996, the Department of Labor (DoL) issued a final rule 
(61 FR 19335) to revise its regulations (41 CFR 60-741) that implement 
Section 503 of the Rehabilitation Act of 1973 (29 U.S.C. 793). The rule 
was effective August 29, 1996. This interim rule amends FAR Subpart 
22.14 and the clauses at 52.212-5 and 52.222-36 to conform to the DoL 
regulations.

B. Regulatory Flexibility Act

    The interim rule is not expected 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 the rule 
merely implements existing Department of Labor regulations, and imposes 
no new requirements. An Initial Regulatory Flexibility Analysis has, 
therefore, not been performed. Comments are invited. Comments from 
small entities concerning the affected FAR subparts also will be 
considered in accordance with 5 U.S.C. 610. Such comments must be 
submitted separately and should cite 5 U.S.C. 601, et seq. (FAR Case 
96-610), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose recordkeeping or information collection 
requirements, or collection of information from offerors, contractors, 
or members of the public which require the approval of the Office of 
Management and Budget under 44 U.S.C. 3501, et seq.

D. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD), the Administrator of General Services (GSA), and the 
Administrator of the National Aeronautics and Space Administration 
(NASA) that urgent and compelling reasons exist to promulgate this 
interim rule without prior opportunity for public comment. This rule 
amends the FAR to conform to Department of Labor regulations at 41 CFR 
60-741 that implement Section 503 of the Rehabilitation Act of 1973 (29 
U.S.C. 793). Immediate publication is necessary to ensure that 
Government contractors take affirmative action required by statute to 
employ, and advance in employment, qualified individuals with 
disabilities. However, pursuant to Public Law 98-577 and FAR 1.501, 
public comments received in response to this interim rule will be 
considered in the formation of the final rule.

List of Subjects in 48 CFR Parts 22 and 52

    Government procurement.

    Dated: June 11, 1998.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.

    Therefore, 48 CFR Parts 22 and 52 are amended as set forth below:
    1. The authority citation for 48 CFR Parts 22 and 52 continues to 
read as follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Subpart 22.14--Employment of Workers With Disabilities

    2. The heading of Subpart 22.14 is revised to read as set forth 
above.
    3. Sections 22.1401 and 22.1402 are revised to read as follows:


22.1401  Policy.

    Government contractors, when entering into contracts subject to the 
Act, are required to take affirmative action to employ, and advance in 
employment, qualified individuals with disabilities, without 
discrimination based on their physical or mental disability.


22.1402  Applicability.

    (a) Section 503 of the Act applies to all Government contracts in 
excess of $10,000 for supplies and services (including construction) 
except as waived by the Secretary of Labor. The clause at 52.222-36, 
Affirmative Action for Workers with Disabilities, implements the Act.
    (b) The requirements of the clause at 52.222-36, Affirmative Action 
for Workers with Disabilities, in any contract with a State or local 
government (or any agency, instrumentality, or subdivision) shall not 
apply to any agency, instrumentality, or subdivision of that government 
that does not participate in work on or under the contract.
    4. Section 22.1403 is amended by revising paragraph (a) 
introductory text; in (b)(1) by revising ``Director of OFCCP'' to read 
``Deputy Assistant Secretary''; in (b)(2) and the first sentence of (d) 
by revising ``Director'' to read ``Deputy Assistant Secretary''; and in 
the last sentence of (d) by removing the word ``calendar''. The revised 
text reads as follows:


22.1403   Waivers.

    (a) The agency head, with the concurrence of the Deputy Assistant 
Secretary for Federal Contract Compliance of the U.S. Department of 
Labor (Deputy Assistant Secretary), may waive any or all of the terms 
of the clause at 52.222-36, Affirmative Action for Workers with 
Disabilities, for--
* * * * *
    5. Section 22.1404 is revised to read as follows:


22.1404  Department of Labor notices.

    The contracting officer shall furnish to the contractor appropriate 
notices that state the contractor's obligations and the rights of 
individuals with disabilities. The contracting officer may obtain these 
notices from the Office of Federal Contract Compliance Programs (OFCCP) 
regional office.


22.1405  [Amended]

    6. Section 22.1405 is amended in the first sentence by replacing 
``Handicapped Workers'' with ``Workers with Disabilities''.


22.1406  [Amended]

    7. Section 22.1406 is amended by revising ``OFCCP'' to read 
``Deputy Assistant Secretary for Federal Contract Compliance'' the 
first time it appears.
    8. Section 22.1407 is amended by revising the introductory 
paragraph to read as follows:


22.1407  Actions because of noncompliance.

    The contracting officer shall take necessary action, as soon as 
possible upon notification by the appropriate agency official, to 
implement any sanctions imposed on a contractor by the Department of 
Labor for violations of the clause at 52.222-36, Affirmative Action for 
Workers with Disabilities. These sanctions (see 41 CFR 60-741.66) may 
include--
* * * * *
    9. Section 22.1408 is amended by revising paragraph (a) 
introductory text and (a)(1) to read as follows:


22.1408  Contract clause.

    (a) The contracting officer shall insert the clause at 52.222-36, 
Affirmative Action for Workers with Disabilities, in solicitations and 
contracts that exceed $10,000 or are expected to exceed $10,000, except 
when--
    (1) Work is to be performed outside the United States by employees 
recruited outside the United States (for the purpose of this subpart, 
United States includes the several states, the District of Columbia, 
the Virgin Islands, the Commonwealth of Puerto Rico, Guam, American 
Samoa, the Commonwealth of the Northern Mariana Islands, and Wake 
Island); or
* * * * *

[[Page 34075]]

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    10. Section 52.212-5 is amended by revising the date of the clause 
and paragraphs (b)(8) and (e)(3) to 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 (Jun 1998)

* * * * *
    (b) * * *
    (8) 52.222-36, Affirmative Action for Workers with Disabilities 
(29 U.S.C. 793).
* * * * *
    (e) * * *
    (3) 52.222-36, Affirmative Action for Workers with Disabilities (29 
U.S.C. 793); and
* * * * *
(End of clause)

    11. Section 52.213-4 is amended by revising the clause date and 
paragraph (b)(1)(iv) of the clause to read as follows:


52.213-4  Terms and Conditions Simplified Acquisitions (Other Than 
Commercial Items).

* * * * *

Terms and Conditions--Simplified Acquisitions (Other Than Commercial 
Items) (Jun 1998)

* * * * *
    (b)(1) * * *
    (iv) 52.222-36, Affirmative Action for Workers with Disabilities 
(Jun 1998) (29 U.S.C. 793) (Applies to contracts over $10,000).
* * * * *
    12. Section 52.222-36 is revised to read as follows:


52.222-36  Affirmative Action for Workers With Disabilities.

    As prescribed in 22.1408(a), insert the following clause:

Affirmative Action for Workers With Disabilities (Jun 1998)

    (a) General. (1) Regarding any position for which the employee 
or applicant for employment is qualified, the Contractor shall not 
discriminate against any employee or applicant because of physical 
or mental disability. The Contractor agrees to take affirmative 
action to employ, advance in employment, and otherwise treat 
qualified individuals with disabilities without discrimination based 
upon their physical or mental disability in all employment practices 
such as--
    (i) Recruitment, advertising, and job application procedures;
    (ii) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;
    (iii) Rates of pay or any other form of compensation and changes 
in compensation;
    (iv) Job assignments, job classifications, organizational 
structures, position descriptions, lines of progression, and 
seniority lists;
    (v) Leaves of absence, sick leave, or any other leave;
    (vi) Fringe benefits available by virtue of employment, whether 
or not administered by the Contractor;
    (vii) Selection and financial support for training, including 
apprenticeships, professional meetings, conferences, and other 
related activities, and selection for leaves of absence to pursue 
training;
    (viii) Activities sponsored by the Contractor, including social 
or recreational programs; and
    (ix) Any other term, condition, or privilege of employment.
    (2) The Contractor agrees to comply with the rules, regulations, 
and relevant orders of the Secretary of Labor (Secretary) issued 
under the Rehabilitation Act of 1973 (29 U.S.C. 793) (the Act), as 
amended.
    (b) Postings. (1) The Contractor agrees to post employment 
notices stating--
    (i) The Contractor's obligation under the law to take 
affirmative action to employ and advance in employment qualified 
individuals with disabilities; and
    (ii) The rights of applicants and employees.
    (2) These notices shall be posted in conspicuous places that are 
available to employees and applicants for employment. The Contractor 
shall ensure that applicants and employees with disabilities are 
informed of the contents of the notice (e.g., the Contractor may 
have the notice read to a visually disabled individual, or may lower 
the posted notice so that it might be read by a person in a 
wheelchair). The notices shall be in a form prescribed by the Deputy 
Assistant Secretary for Federal Contract Compliance of the U.S. 
Department of Labor (Deputy Assistant Secretary) and shall be 
provided by or through the Contracting Officer.
    (3) The Contractor shall notify each labor union or 
representative of workers with which it has a collective bargaining 
agreement or other contract understanding, that the Contractor is 
bound by the terms of Section 503 of the Act and is committed to 
take affirmative action to employ, and advance in employment, 
qualified individuals with physical or mental disabilities.
    (c) Noncompliance. If the Contractor does not comply with the 
requirements of this clause, appropriate actions may be taken under 
the rules, regulations, and relevant orders of the Secretary issued 
pursuant to the Act.
    (d) Subcontracts. The Contractor shall include the terms of this 
clause in every subcontract or purchase order in excess of $10,000 
unless exempted by rules, regulations, or orders of the Secretary. 
The Contractor shall act as specified by the Deputy Assistant 
Secretary to enforce the terms, including action for noncompliance.

(End of clause)

    Alternate I (Jun 1998). As prescribed in 22.1408(b), add the 
following as a preamble to the clause:
    Notice: The following term(s) of this clause are waived for this 
contract: ____________________ [List term(s)].

[FR Doc. 98-16116 Filed 6-19-98; 8:45 am]
BILLING CODE 6820-EP-P