[Federal Register Volume 85, Number 206 (Friday, October 23, 2020)]
[Rules and Regulations]
[Pages 67626-67628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21701]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 22 and 52
[FAC 2021-02; FAR Case 2019-002; Item VII; Docket No. FAR 2019-0004,
Sequence No. 1]
RIN 9000-AN85
Federal Acquisition Regulation: Recreational Services on Federal
Lands
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 are issuing a final rule to amend the
Federal Acquisition Regulation (FAR) to implement a Department of Labor
(DOL) rule, which exempts certain contracts for seasonal recreational
services or seasonal recreational equipment rental for the general
public on Federal lands from an Executive order on minimum wage. This
rule does not change the extent to which contractors can be used to
assist Federal agencies with providing services on Federal lands. This
rule only changes the extent to which minimum wages are required for
applicable Federal contracts.
DATES: Effective: November 23, 2020.
FOR FURTHER INFORMATION CONTACT: Mr. Kevin Funk, Procurement Analyst,
at 202-357-5805 or [email protected] for clarification of content. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat Division at 202-501-4755. Please cite FAC 2021-
02, FAR Case 2019-002.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a proposed rule on October 21, 2019,
at 84 FR 56157, to amend the FAR to implement a DOL final rule, Minimum
Wage for Contractors; Updating Regulations To Reflect Executive Order
13838, published in the Federal Register at 83 FR 48537 on September
26, 2018.
The DOL rule implemented Executive Order (E.O.) 13838, Exemption
From Executive Order 13658 for Recreational Services on Federal Lands
(May 25, 2018, published June 1, 2018, 83 FR 25341), which exempted
certain contracts and contract-like instruments from the requirements
of E.O. 13658, Establishing a Minimum Wage for Contractors. E.O. 13658
raised the hourly minimum wage paid to workers performing on or in
connection with covered Federal contracts to: (i) $10.10 per hour,
beginning January 1, 2015; and (ii) beginning January 1, 2016, and
annually thereafter, an amount determined by the Secretary of Labor in
accordance with the E.O. As of January 1, 2020, E.O. 13658 raised
minimum wage to $10.80 per hour (84 FR 49345).
E.O. 13838 and DOL's implementing regulation exempt contracts or
contract-like instruments entered into with the Federal Government in
connection with seasonal recreational services or seasonal recreational
equipment rental for the general public on Federal lands from the
requirements of E.O. 13658; lodging and food services are not exempted.
The purpose of this rule is to make a conforming change in the FAR.
This rule implements E.O. 13838 by amending FAR 22.1903(b)(2) and FAR
clause 52.222-55(c)(2) to conform to the DOL rule by adding seasonal
recreational services or seasonal recreational equipment rental for the
general public on Federal lands to the list of exemptions.
Eighteen respondents provided comments in response to the proposed
rule.
II. Discussion and Analysis
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the public comments in the
development of the final rule. A discussion of the comments and the
changes made to the rule as a result of those comments are provided as
follows:
A. Changes to Rule
A new definition for ``seasonal recreational equipment rental'' was
added to provide additional clarity within the rule. An additional
conforming editorial change was also made within the FAR clause at
52.222-55.
B. Analysis of Public Comments
1. Support for the Rule
Comment: One respondent expressed support for the rule.
Response: Noted.
2. Legal Sufficiency of Rule
Comment: Two respondents stated the rule was illegal or would
violate E.O. 13658.
[[Page 67627]]
Response: This rule exempts certain contracts and contract-like
instruments from the requirements of E.O. 13658 as directed by E.O.
13838. An Executive order may revise, narrow, or augment a policy
established under a prior Executive order as long as the new Executive
order does not conflict with the U.S. Constitution or current statutory
law. This regulation is legally sufficient.
3. Opposition to the Rule
Comment: Several respondents expressed general opposition to the
rule.
Response: The purpose of this rule is to make a conforming change
in the FAR. This rule implements E.O. 13838 by amending FAR
22.1903(b)(2) and FAR clause 52.222-55(c)(2) to conform to the DOL rule
by adding seasonal recreational services or seasonal recreational
equipment rental for the general public on Federal lands to the list of
exemptions.
4. Scope of Rule
Comment: Several respondents stated the rule would privatize the
National Parks.
Response: This rule does not change the extent to which contractors
can be used to assist Federal agencies with providing services on
Federal lands. Nor does it alter any inherently governmental
responsibility vested in the Federal Government. Contractors have been
used by Federal agencies for many years to assist with providing
superior and efficient services on Federal lands. This rule only
changes the extent to which minimum wages are required for Federal
contracts under E.O. 13658.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Items, Including Commercially
Available Off-the-Shelf (COTS) Items
This rule does not add any new provisions or clauses. The rule does
not change the applicability of existing provisions or clauses to
contracts at or below the SAT and contracts for the acquisition of
commercial items, including COTS items. The FAR clause at 52.222-55,
Minimum Wages Under Executive Order 13658, is prescribed for use in
contracts valued at or below the SAT and for the acquisition of
commercial items. Under this rule, acquisitions below the SAT or for
commercial items involving seasonal recreational services or seasonal
recreational equipment rental for the general public on Federal lands
would be exempt from FAR clause 52.222-55. Lodging and food services
are not exempted.
IV. Executive Orders 12866 and 13563
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 rule is not a
significant regulatory action, and therefore, was not 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.
V. Executive Order 13371
This rule is not subject to E.O. 13771, Reducing Regulation and
Controlling Regulatory Costs, because the rule is not a significant
regulatory action under E.O. 12866.
VI. Regulatory Flexibility Act
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. The FRFA is summarized as follows:
This rule is required to implement a DOL rule dated September
26, 2018, which implemented E.O. 13838, Exemption from Executive
Order 13658 for Recreational Services on Federal Lands (May 25,
2018, published June 1, 2018, 83 FR 25341). E.O. 13838 made
contracts or contract-like instruments entered into with the Federal
Government in connection with seasonal recreational services or
seasonal recreational equipment rental for the general public on
Federal lands exempt from the minimum wage requirements under E.O.
13658, dated February 12, 2014; lodging and food services are not
exempted.
The objective of this rule is to make a conforming change in the
FAR to conform to the DOL rule to implement E.O. 13838. This rule
provides a conforming amendment to FAR 22.1903(b)(2)(iii) and FAR
clause 52.222-55(c)(2)(ii) to conform to the DOL rule by adding
seasonal recreational services or seasonal recreational equipment
rental for the general public on Federal lands to the list of
exemptions. Lodging and food services are not exempted. The legal
basis for these changes is E.O. 13838.
There were no significant issues raised by the public comments
in response to the initial regulatory flexibility analysis.
This 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
only applies to contracts for seasonal recreational services or
seasonal recreational equipment rental.
Lodging and food services are not exempted. On average for
fiscal years 2016-2018, there were 229 awards reported on an annual
basis in the Federal Procurement Data System (FPDS) for seasonal
recreational services and seasonal recreational equipment rental, of
which 153 were awarded to small business entities. The FPDS data
could not isolate which of the awards were for services or rentals
on Federal lands, so the average number of awards for seasonal
recreational services or seasonal recreational equipment rental to
the general public on Federal lands could be even lower.
Furthermore, this rule is expected to have a beneficial impact on
small businesses as it relaxes the burden on small businesses.
There are no reporting, recordkeeping, or other compliance
requirements on any small entities in this rule. The rule does not
duplicate, overlap or conflict with any other Federal rules.
DoD, GSA, and NASA were unable to identify any alternatives to
the rule which would reduce the impact on small entities and still
meet the requirements of the statute.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat Division. The Regulatory Secretariat Division
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of
the Small Business Administration.
VII. Paperwork Reduction Act
The 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 22 and 52
Government procurement.
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 22 and 52 as set
forth below:
0
1. The authority citation for 48 CFR parts 22 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 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
0
2. Amend section 22.1901 by--
0
a. Revising the section heading;
0
b. Adding introductory text and, in alphabetical order, the definitions
``Seasonal recreational equipment rental'' and ``Seasonal recreational
services''; and
[[Page 67628]]
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c. In the definition ``Worker,'' removing from the introductory text
``, as used in this subpart,''.
The revision and additions read as follows:
22.1901 Definitions.
As used in this subpart--
Seasonal recreational equipment rental means any equipment rental
in connection with seasonal recreational services.
Seasonal recreational services means services that include river
running, hunting, fishing, horseback riding, camping, mountaineering
activities, recreational ski services, and youth camps.
* * * * *
0
3. Amend section 22.1903 by--
0
a. Removing the period at the end of paragraph (b)(2)(ii)(C) and adding
``; or'' in its place; and
0
b. Adding paragraph (b)(2)(iii).
The addition reads as follows:
22.1903 Applicability.
* * * * *
(b) * * *
(2) * * *
(iii) Seasonal recreational services or seasonal recreational
equipment rental for the general public on Federal lands, except for
lodging and food services associated with seasonal recreational
services, in accordance with Executive Order 13838, Exemption from
Executive Order 13658 for Recreational Services on Federal Lands (3
CFR, 2018 Comp., p. 831), as implemented by the U.S. Department of
Labor regulations at 29 CFR 10.4(g).
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (c)(7) ``(DEC 2015)'' and adding ``(NOV
2020)'' in its place;
0
c. Removing from paragraph (e)(1)(xvii) ``(DEC 2015)'' and adding
``(NOV 2020)'' in its place; and
0
d. In Alternate II:
0
i. Revising the date of the alternate; and
0
ii. Removing from paragraph (e)(1)(ii)(P) ``(DEC 2015)'' and adding
``(NOV 2020)'' in its place.
The revisions 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 (Nov 2020)
* * * * *
Alternate II (NOV 2020). * * *
* * * * *
0
5. Amend section 52.213-4 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (a)(2)(viii) ``(AUG 2020)'' and adding
``(NOV 2020).'' in its place; and
0
c. Removing from paragraph (b)(1)(ix) ``(DEC 2015)'' and adding ``(NOV
2020)'' in its place.
The revision reads as follows:
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Items)
* * * * *
Terms and Conditions--Simplified Acquisitions (Other Than Commercial
Items) (Nov 2020)
* * * * *
0
6. Amend section 52.222-55 by--
0
a. Revising the date of the clause;
0
b. Adding to paragraph (a), in alphabetical order, the definitions
``Seasonal recreational equipment rental'' and ``Seasonal recreational
services'';
0
c. In paragraph (c)(2)(ii)(A), removing the period at the end of the
sentence and adding a semicolon in its place;
0
d. In paragraph (c)(2)(ii)(B), removing the period at the end of the
sentence and adding ``; and'' in its place;
0
e. In paragraph (c)(2)(ii)(C), removing the period at the end of the
sentence and adding ``; or'' in its place; and
0
f. Adding paragraph (c)(2)(iii).
The revision and additions read as follows:
52.222-55 Minimum Wages Under Executive Order 13658.
* * * * *
Minimum Wages Under Executive Order 13658 (Nov 2020)
(a) * * *
``Seasonal recreational equipment rental'' means any equipment
rental in connection with seasonal recreational services.
``Seasonal recreational services'' means services that include:
river running, hunting, fishing, horseback riding, camping,
mountaineering activities, recreational ski services, and youth
camps.
* * * * *
(c) * * *
(2) * * *
(iii) Seasonal recreational services or seasonal recreational
equipment rental for the general public on Federal lands, except for
lodging and food services associated with seasonal recreational
services, in accordance with Executive Order 13838, Exemption from
Executive Order 13658 for Recreational Services on Federal Lands (3
CFR, 2018 Comp., p. 831), as implemented by the U.S. Department of
Labor regulations at 29 CFR 10.4(g).
* * * * *
0
7. Amend section 52.244-6 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (c)(1)(xv) ``(DEC 2015)'' and adding ``(NOV
2020)'' in its place.
The revision reads as follows:
52.244-6 Subcontracts for Commercial Items.
* * * * *
Subcontracts for Commercial Items (Nov 2020)
* * * * *
[FR Doc. 2020-21701 Filed 10-22-20; 8:45 am]
BILLING CODE 6820-EP-P