[Federal Register Volume 76, Number 212 (Wednesday, November 2, 2011)]
[Rules and Regulations]
[Pages 68015-68017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27779]


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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