[Federal Register Volume 67, Number 54 (Wednesday, March 20, 2002)]
[Rules and Regulations]
[Pages 13066-13067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5826]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 52

[FAC 2001-06; FAR Case 1999-612; Item VII]
RIN 9000-AI95


Federal Acquisition Regulation; Application of Labor Clauses

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

ACTION: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on a final rule 
amending the Federal Acquisition Regulation (FAR) by revising the 
clause, Terms and Conditions--Simplified Acquisitions (Other Than 
Commercial Items), to clarify the application of labor clauses below 
the simplified acquisition threshold. The Councils also revised the 
Equal Opportunity clause to incorporate the exception for work 
performed outside the United States.

DATES: Effective Date: April 4, 2002.

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 Ms. Linda Nelson, Procurement Analyst, at (202) 501-
1900. Please cite FAC 2001-06, FAR case 1999-612.

SUPPLEMENTARY INFORMATION:

A. Background

    This final rule--
    1. Moves the Prohibition of Segregated Facilities clause from the 
list at paragraph (b), to the list at paragraph (a), of the clause at 
52.213-4 and clarifies the existing requirements of 41 CFR 60-1.8, 
promulgated by the Department of Labor under E.O. 11246. The 
Prohibition of Segregated Facilities clause must be included in 
contracts whenever the Equal Opportunity clause (FAR 52.222-26) is 
included.
    2. Moves the Equal Opportunity clause from the list at paragraph 
(b), to the list at paragraph (a), of the clause at 52.213-4 because 
the clause must be included in almost all contracts, even those under 
$10,000, in accordance with the requirements at FAR 22.802(a)(1)

[[Page 13067]]

and 22.807(b). Even though included, the clause is inapplicable unless 
the aggregate value of contracts and subcontracts awarded to the 
contractor exceeds $10,000 in a year.
    3. Makes other revisions to paragraphs (b)(1)(i), (b)(1)(v), and 
(b)(1)(vii) of the clause at FAR 52.213-4, and paragraph (a) of the 
clause at FAR 52.222-26, relating to geographic applicability of labor 
clauses, to comply with the current regulations at FAR 22.603, 
22.807(b)(2), 22.1001, 22.1003-2, and 22.1408(a)(1).
    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 65 FR 64298, October 26, 2000. Two respondents submitted 
public comments. One respondent is in favor of the rule, while the 
other commenter believes the 52.222-36 clause change creates a double 
standard, strongly favoring Americans, while making non-Americans 
working outside the United States susceptible to abuses by contractors. 
The Councils believe that the comment is outside the scope of the rule. 
The clause at 52.222-36 does not apply to employees recruited outside 
the United States for work performed outside the United States. This 
has been in the FAR since this FAR subpart was written in 1984. It is 
in the Department of Labor regulation which is the source of the FAR 
subpart (see 41 CFR 60-741.4(a)(4)). The concept is that the country in 
which the work is performed has the sovereignty to write its own laws 
regarding affirmative action of those disabled workers. This case 
confirms that this long-standing exception applies to items whether 
commercial or noncommercial. Accordingly, the comments resulted in no 
change to the rule.
    This is not a significant regulatory action, and therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The 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 this rule only 
clarifies the existing requirements.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C. 
3501, et seq.

List of Subjects in 48 CFR Part 52

    Government procurement.

    Dated: March 6, 2002.
Al Matera,
Director, Acquisition Policy Division.

    Therefore, DoD, GSA, and NASA amend 48 CFR part 52 as set forth 
below:

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    1. The authority citation for 48 CFR part 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).


    2. Amend section 52.213-4 by--
    a. Revising the date of the clause;
    b. Redesignating paragraphs (a)(1)(ii) and (a)(1)(iii) as 
(a)(1)(iv) and (a)(1)(v), respectively, and adding new paragraphs 
(a)(1)(ii) and (a)(1)(iii);
    c. Removing paragraphs (b)(1)(ii) and (b)(1)(iii), and 
redesignating paragraphs (b)(1)(iv) through (b)(1)(xiii) as (b)(1)(ii) 
through (b)(1)(xi), respectively; and
    d. Revising paragraph (b)(1)(i) and newly designated paragraphs 
(b)(1)(iii) and (b)(1)(v).
    The added and revised text reads as follows:


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

* * * * *

Terms and Conditions--Simplified Acquisitions (Other Than Commercial 
Items) (Apr 2002)

    (a) * * *
    (1) * * *
    (ii) 52.222-21, Prohibition of Segregated Facilities (Feb 1999) 
(E.O. 11246).
    (iii) 52.222-26, Equal Opportunity (Apr 2002) (E.O. 11246).
* * * * *
    (b) * * *
    (1)
    (i) 52.222-20, Walsh-Healey Public Contracts Act (Dec 1996) (41 
U.S.C. 35-45) (Applies to supply contracts over $10,000 in the 
United States, Puerto Rico, or the U.S. Virgin Islands).
* * * * *
    (iii) 52.222-36, Affirmative Action for Workers with 
Disabilities (June 1998) (29 U.S.C. 793). (Applies to contracts over 
$10,000, unless the work is to be performed outside the United 
States by employees recruited outside the United States.) (For 
purposes of this clause, United States includes the 50 States, the 
District of Columbia, Puerto Rico, the Northern Mariana Islands, 
American Samoa, Guam, the U.S. Virgin Islands, and Wake Island.)
* * * * *
    (v) 52.222-41, Service Contract Act of 1965, As Amended (May 
1989) (41 U.S.C. 351, et seq.) (Applies to service contracts over 
$2,500 that are subject to the Service Contract Act and will be 
performed in the United States, District of Columbia, Puerto Rico, 
the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin 
Islands, Johnston Island, Wake Island, or the outer continental 
shelf lands).
* * * * *

    3. Amend section 52.222-26 by--
    a. Revising the date of the clause;
    b. Removing the paragraph designation and the introductory text of 
paragraph (b);
    c. Redesignating paragraph (a) as paragraph (b) and revising the 
introductory text; and
    d. Adding a new paragraph (a).
    The added and revised text reads as follows:


52.222-26  Equal Opportunity.

* * * * *

Equal Opportunity (Apr 2002)

    (a) Definition. United States, as used in this clause, means the 
50 States, the District of Columbia, Puerto Rico, the Northern 
Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, and 
Wake Island.
    (b) If, during any 12-month period (including the 12 months 
preceding the award of this contract), the Contractor has been or is 
awarded nonexempt Federal contracts and/or subcontracts that have an 
aggregate value in excess of $10,000, the Contractor shall comply 
with paragraphs (b)(1) through (b)(11) of this clause, except for 
work performed outside the United States by employees who were not 
recruited within the United States. Upon request, the Contractor 
shall provide information necessary to determine the applicability 
of this clause.
* * * * *

[FR Doc. 02-5826 Filed 3-19-02; 8:45 am]
BILLING CODE 6820-EP-P