[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]]

0
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