[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:
farcase.96-610@gsa.gov.
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
