81_FR_91878 81 FR 91636 - Federal Acquisition Regulation; Fair Pay and Safe Workplaces; Injunction

81 FR 91636 - Federal Acquisition Regulation; Fair Pay and Safe Workplaces; Injunction

DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 81, Issue 242 (December 16, 2016)

Page Range91636-91641
FR Document2016-30091

A final rule was published in the Federal Register on August 25, 2016 amending the Federal Acquisition Regulation (FAR) to implement the Executive Order (E.O.) on Fair Pay and Safe Workplaces. The E.O. was designed to promote contracting efficiency by improving compliance with basic labor standards during the performance of federal contracts. Implementation of portions of the E.O. was preliminarily enjoined by an order issued by a Federal District court on October 24, 2016. DoD, GSA, and NASA are amending sections of the FAR that are affected by the Court's preliminary injunction order.

Federal Register, Volume 81 Issue 242 (Friday, December 16, 2016) 
[Federal Register Volume 81, Number 242 (Friday, December 16, 2016)]
[Rules and Regulations]
[Pages 91636-91641]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-30091]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 4, 9, 17, 22, 42, and 52

[FAC 2005-93; FAR Case 2014-025; Item II; Docket No. 2014-0025; 
Sequence No. 2]
RIN 9000-AN30


Federal Acquisition Regulation; Fair Pay and Safe Workplaces; 
Injunction

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

ACTION: Final rule; injunction.

-----------------------------------------------------------------------

SUMMARY: A final rule was published in the Federal Register on August 
25, 2016 amending the Federal Acquisition Regulation (FAR) to implement 
the Executive Order (E.O.) on Fair Pay and Safe Workplaces. The E.O. 
was designed

[[Page 91637]]

to promote contracting efficiency by improving compliance with basic 
labor standards during the performance of federal contracts. 
Implementation of portions of the E.O. was preliminarily enjoined by an 
order issued by a Federal District court on October 24, 2016. DoD, GSA, 
and NASA are amending sections of the FAR that are affected by the 
Court's preliminary injunction order.

DATES: Effective: December 16, 2016.
    Applicability Date: October 24, 2016.

FOR FURTHER INFORMATION CONTACT: Ms. Zenaida Delgado, Procurement 
Analyst, at 202-969-7207 for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat Division at 202-501-4755. Please cite FAC 2005-93, FAR Case 
2014-025; Injunction.

SUPPLEMENTARY INFORMATION: 

A. Background

1. The Final Rule and Court Order
    On August 25, 2016, DoD, GSA, and NASA published a final rule in 
the Federal Register at 81 FR 58562 to implement Executive Order (E.O.) 
13673, as amended by E.O. 13683 and 13738 (hereinafter designated as 
the ``E.O.''). The E.O. was designed to promote contracting efficiency 
by improving contractor compliance with basic labor standards during 
the performance of Federal contracts. The rule, which added coverage in 
FAR parts 1, 4, 9, 17, 22, 42, and 52, had an effective date of October 
25, 2016.
    On October 7, 2016, the Associated Builders and Contractors of 
Southeast Texas, Inc., the Associated Builders and Contractors, Inc., 
and the National Association of Security Companies filed a lawsuit in 
the United States District Court for the Eastern District of Texas 
(Civil Action No. 1:16-CV-425) seeking to overturn the final rule. On 
October 13, 2016, the plaintiffs filed an ``Emergency Motion for 
Temporary Restraining Order and Preliminary Injunction.''
    The District Court issued a ``Memorandum and Order Granting 
Preliminary Injunction'' on October 24, 2016. The Court Order on page 
31 states that ``Defendants are enjoined [from] implementing any 
portion of the FAR Rule or Department of Labor Guidance relating to the 
new reporting and disclosure requirements regarding labor law 
violations as described in Executive Order 13673 and implemented in the 
FAR Rule and DOL Guidance. Further, Defendants are enjoined from 
enforcing the restriction on arbitration agreements.''
    On October 25, 2016, the Federal Acquisition Regulatory Council 
issued a memorandum to the Chief Acquisition Officers, Senior 
Procurement Executives, Defense Acquisition Regulations Council, and 
Civilian Agency Acquisition Council directing that all steps necessary 
be taken to ensure the enjoined sections, provisions, and clauses of 
the final rule are not implemented until such time as the injunction is 
terminated. The Council enumerated specific steps to be taken at a 
minimum, including the following:
    1. Ensure new solicitations do not include representations or 
clauses that the enjoined coverage of the rule would have required--
i.e., the representation at FAR 52.222-57 and its commercial items 
version at paragraph (s) of 52.212-3, and 52.222-58 and the clause at 
52.222-59, to direct disclosure of labor law violation decisions by 
offerors or contractors, or clause 52.222-61, that would require an 
offeror or contractor to agree to restrict use of mandatory pre-dispute 
arbitration agreements.
    2. If a solicitation has been issued with representations or 
clauses listed in the previous paragraph 1, amend those solicitations 
immediately to remove those representations and clauses. Additionally, 
agencies shall not take any action on information, if any, submitted in 
response to those representations and clauses.
    3. Ensure contracting officers do not implement the procedures in 
FAR 22.2004-2, 22.2004-3, 22.2004-4, or associated changes in FAR parts 
9 and 42.
    The FAR Council requested that agencies share its instructions 
widely among their workforces. It posted the Memorandum at https://www.acquisition.gov/fair-pay-eo and the Department of Labor re-posted 
the Memorandum at the top of its information page on the Fair Pay and 
Safe Workplaces E.O. at https://www.dol.gov/asp/fairpayandsafeworkplaces/.
    As an additional step to ensure full awareness of, and compliance 
with, the Court Order, DoD, GSA, and NASA, on behalf of the FAR 
Council, are taking this more comprehensive administrative action to 
amend the final rule to include caveats throughout the rule for each 
section, provision, and clause that was enjoined by the terms of the 
Court Order. The caveat explains that the affected regulatory coverage 
has been enjoined as of October 24 and is enjoined indefinitely, but 
will become effective immediately if the injunction is terminated. At 
that time, DOD, GSA, and NASA will take an additional administrative 
action to remove the caveats added by this final rule.
    In further compliance with the terms of the Court Order, as 
explained by the FAR Council in its October 25 Memorandum, GSA's 
Integrated Award Environment has halted actions to release the changes 
for the System for Award Management (SAM) that would support bidder and 
contractor submission of information on labor law violation decisions 
as well as the changes that would support public disclosure of this 
information in the Federal Awardee Performance and Integrity 
Information System (FAPIIS).
2. Paycheck Transparency
    The final rule issued on August 25 also included coverage 
addressing the paycheck transparency requirements in section 5 of the 
E.O. Section 5(a) of the E.O. requires contractors and subcontractors 
performing covered contracts or subcontracts to provide wage statements 
to covered workers, giving them information concerning their hours 
worked, overtime hours pay, and any additions to or deductions made 
from their pay. Section 5(b) requires contractors and subcontractors 
performing covered contracts or subcontracts to provide a document to 
individuals performing work under the contract or subcontract as 
independent contractors informing them of their status as independent 
contractors. These requirements are implemented in FAR 22.2005, FAR 
22.2007(d), and the clause at FAR 52.222-60, and further reflected in 
several other FAR clauses. The Court Order does not enjoin 
implementation of the coverage on paycheck transparency. On page 31 of 
the Order, the Court explains that ``[t]he court does not find that 
Plaintiffs have established a substantial likelihood of success on 
their claims regarding the `paycheck transparency requirement' and have 
failed to establish that they will suffer irreparable harm as to the 
implementation of those provisions, which do not take effect until 
January 1, 2017. See 81 FR at 58713. Therefore, the court declines to 
enjoin enforcement of the paycheck provisions.'' Accordingly, the 
paycheck transparency clause language at FAR 52.222-60, 52.244-
6(c)(1)(xiv), 52.212-5(b)(36), (e)(1)(xvii) and Alternate 
II(e)(1)(ii)(Q) take effect for new solicitations issued on or after 
January 1, 2017, as stated in the final rule.
    A number of other provisions in FAR parts 9, 22 and clause language 
in part 52 that make minor editorial changes or technical references 
are also not affected by the Court Order and, for this reason, do not 
appear in this final rule.

[[Page 91638]]

B. 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). The final 
rule issued August 25, 2016, was a significant regulatory action 
subject to review under Section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993, and a major rule under 5 U.S.C. 
804. The action published today is amending the FAR to show enjoined 
sections as being enjoined indefinitely.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule because 
this final rule is an administrative action that does not require 
publication for public comment.

List of Subjects in 48 CFR Parts 1, 4, 9, 17, 22, 42, and 52

    Government procurement.

    Dated: December 9, 2016.
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 1, 4, 9, 17, 22, 
42, and 52 as set forth below:

0
1. The authority citation for 48 CFR parts 1, 4, 9, 17, 22, 42, 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 1--FEDERAL ACQUISITION REGULATIONS SYSTEM

0
2. Amend section 1.106 by adding a Note to the section to read as 
follows:


1.106  OMB approval under the Paperwork Reduction Act.

* * * * *

    Note to 1.106: By a court order issued on October 24, 2016, FAR 
segments ``52.222-57'', ``52.222-58'', and ``52.222-59'' and their 
corresponding OMB Control Number ``9000-0195'' are enjoined 
indefinitely as of the date of the order. The enjoined segments will 
become effective immediately if the court terminates the injunction. 
At that time, DoD, GSA, and NASA will publish a document in the 
Federal Register advising the public of the termination of the 
injunction.

PART 4--ADMINISTRATIVE MATTERS

0
3. Amend section 4.1202 by adding a Note to paragraph (a)(21) to read 
as follows:


4.1202   Solicitation provision and contract clause.

    (a) * * *
    (21) * * *

    Note to paragraph (a)(21): By a court order issued on October 
24, 2016, this paragraph (a)(21) is enjoined indefinitely as of the 
date of the order. The enjoined paragraph will become effective 
immediately if the court terminates the injunction. At that time, 
DoD, GSA, and NASA will publish a document in the Federal Register 
advising the public of the termination of the injunction.

* * * * *

PART 9--CONTRACTOR QUALIFICATIONS

0
4. Amend section 9.104-4 by adding a Note to paragraph (b) to read as 
follows:


9.104-4  Subcontractor responsibility.

* * * * *
    (b) * * *

    Note to paragraph (b): By a court order issued on October 24, 
2016, this paragraph (b) is enjoined indefinitely as of the date of 
the order. The enjoined paragraph will become effective immediately 
if the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.

* * * * *

0
5. Amend section 9.104-5 by adding a Note to paragraph (d) to read as 
follows:


9.104-5  Representation and certifications regarding responsibility 
matters.

* * * * *
    (d) * * *

    Note to paragraph (d): By a court order issued on October 24, 
2016, this paragraph (d) is enjoined indefinitely as of the date of 
the order. The enjoined paragraph will become effective immediately 
if the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.

* * * * *

0
6. Amend section 9.104-6 by adding Notes to paragraphs (b)(4) and (6) 
to read as follows:


9.104-6  Federal Awardee Performance and Integrity Information System.

* * * * *
    (b) * * *
    (4) * * *

    Note to paragraph (b)(4): By a court order issued on October 24, 
2016, the second sentence of this paragraph (b)(4) is enjoined 
indefinitely as of the date of the order. The enjoined sentence will 
become effective immediately if the court terminates the injunction. 
At that time, DoD, GSA, and NASA will publish a document in the 
Federal Register advising the public of the termination of the 
injunction.

* * * * *
    (6) * * *

    Note to paragraph (b)(6): By a court order issued on October 24, 
2016, this paragraph (b)(6), is enjoined indefinitely as of the date 
of the order. The enjoined paragraph will become effective 
immediately if the court terminates the injunction. At that time, 
DoD, GSA, and NASA will publish a document in the Federal Register 
advising the public of the termination of the injunction.

* * * * *

0
7. Amend section 9.105-1 by adding a Note to paragraph (b)(4) to read 
as follows:


9.105-1  Obtaining information.

* * * * *
    (b) * * *
    (4) * * *

    Note to paragraph (b)(4): By a court order issued on October 24, 
2016, this paragraph (b)(4) is enjoined indefinitely as of the date 
of the order. The enjoined paragraph will become effective 
immediately if the court terminates the injunction. At that time, 
DoD, GSA, and NASA will publish a document in the Federal Register 
advising the public of the termination of the injunction.

* * * * *

PART 17--SPECIAL CONTRACTING METHODS

0
8. Amend section 17.207 by adding a Note to paragraph (c)(8) to read as 
follows:


17.207  Exercise of options.

* * * * *
    (c) * * *
    (8) * * *

    Note to paragraph (c)(8): By a court order issued on October 24, 
2016, this paragraph (c)(8) is enjoined indefinitely as of the date 
of the order. The enjoined paragraph will become effective 
immediately if the court terminates the injunction. At that time, 
DoD, GSA, and NASA will publish a document in the Federal Register 
advising the public of the termination of the injunction.

* * * * *

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

0
9. Amend section 22.102-2 by adding a Note to paragraph (c)(3) to read 
as follows:

[[Page 91639]]

22.102-2  Administration and enforcement.

* * * * *
    (c) * * *
    (3) * * *

    Note to paragraph (c)(3): By a court order issued on October 24, 
2016, this paragraph (c)(3) is enjoined indefinitely as of the date 
of the order. The enjoined paragraph will become effective 
immediately if the court terminates the injunction. At that time, 
DoD, GSA, and NASA will publish a document in the Federal Register 
advising the public of the termination of the injunction.


0
10. Amend section 22.104 by adding Notes to paragraphs (b)(1) and (d) 
to read as follows:


22.104  Agency labor advisors.

* * * * *
    (b) * * *
    (1) * * *

    Note to paragraph (b)(1): By a court order issued on October 24, 
2016, the words ``agency labor compliance advisors (ALCAs) (as 
defined at 22.2002)'' in this paragraph (b)(1) are enjoined 
indefinitely as of the date of the order. The enjoined words will 
become effective immediately if the court terminates the injunction. 
At that time, DoD, GSA, and NASA will publish a document in the 
Federal Register advising the public of the termination of the 
injunction.

* * * * *
    (d) * * *

    Note to paragraph (d): By a court order on October 24, 2016, 
this paragraph (d) is enjoined indefinitely as of the date of the 
order. The enjoined paragraph will become effective immediately if 
the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.


0
11. Amend section 22.2000 by adding a Note to the section to read as 
follows:


22.2000  Scope of subpart.

* * * * *

    Note to 22.2000: By a court order issued on October 24, 2016, 
this section is enjoined indefinitely as of the date of the order. 
The enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
12. Amend section 22.2002 by adding a Note to the section to read as 
follows:


22.2002   Definitions.

* * * * *

    Note to 22.2002: By a court order issued on October 24, 2016, 
this section is enjoined indefinitely as of the date of the order. 
The enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
13. Amend section 22.2003 by adding a Note to section to read as 
follows:


22.2003  Policy.

* * * * *

    Note to 22.2003: By a court order issued on October 24, 2016, 
this section is enjoined indefinitely as of the date of the order. 
The enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
14. Amend section 22.2004-1 by adding a Note to the section to read as 
follows:


22.2004-1  General.

* * * * *

    Note to 22.2004-1: By a court order issued on October 24, 2016, 
this section is enjoined indefinitely as of the date of the order. 
The enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
15. Amend section 22.2004-2 by adding a Note to the section to read as 
follows:


22.2004-2  Preaward assessment of an offeror's labor law violations.

* * * * *

    Note to 22.2004-2: By a court order issued on October 24, 2016, 
this section is enjoined indefinitely as of the date of the order. 
The enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
16. Amend section 22.2004-3 by adding a Note to the section to read as 
follows:


22.2004-3  Postaward assessment of a prime contractor's labor law 
violations.

* * * * *

    Note to section 22.2004-3: By a court order issued on October 
24, 2016, this section is enjoined indefinitely as of the date of 
the order. The enjoined section will become effective immediately if 
the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.


0
17. Amend section 22.2004-4 by adding a Note to the section to read as 
follows:


22.2004-4  Contractor preaward and postaward assessment of a 
subcontractor's labor law violations.

* * * * *

    Note to 22.2004-4: By a court order issued on October 24, 2016, 
this section is enjoined indefinitely as of the date of the order. 
The enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
18. Amend section 22.2006 by adding a Note to the section to read as 
follows:


22.2006  Arbitration of contractor employee claims.

* * * * *

    Note to 22.2006: By a court order issued on October 24, 2016, 
this section is enjoined indefinitely as of the date of the order. 
The enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
19. Amend section 22.2007 by adding Notes to paragraphs (a), (b), (c) 
and (e) to read as follows:


22.2007  Solicitation provisions and contract clauses.

    (a) * * *

    Note to paragraph (a): By a court order issued on October 24, 
2016, this paragraph (a) is enjoined indefinitely as of the date of 
the order. The enjoined paragraph will become effective immediately 
if the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.

    (b) * * *

    Note to paragraph (b): By a court order issued on October 24, 
2016, this paragraph (b) is enjoined indefinitely as of the date of 
the order. The enjoined paragraph will become effective immediately 
if the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.

    (c) * * *

    Note to paragraph (c): By a court order issued on October 24, 
2016, this paragraph (c) is enjoined indefinitely as of the date of 
the order. The enjoined paragraph will become effective immediately 
if the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.

* * * * *
    (e) * * *

    Note to paragraph (e): By a court order issued on October 24, 
2016, this paragraph (e) is enjoined indefinitely as of the date of

[[Page 91640]]

the order. The enjoined paragraph will become effective immediately 
if the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.

PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES

0
20. Amend section 42.1502 by adding a Note to paragraph (j) to read as 
follows:


42.1502  Policy.

* * * * *
    (j) * * *

    Note to paragraph (j): By a court order issued on October 24, 
2016, this paragraph (j) is enjoined indefinitely as of the date of 
the order. The enjoined paragraph will become effective immediately 
if the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.


0
21. Amend section 42.1503 by adding Notes to paragraphs (a)(1)(i) and 
(ii) and (h)(5) introductory text to read as follows:


42.1503  Procedures.

    (a)(1) * * *
    (i) * * *

    Note to paragraph (a)(1)(i): By a court order issued on October 
24, 2016, the words ``agency labor compliance advisor (ALCA) office 
(see subpart 22.20)'' in this paragraph (a)(1)(i) are enjoined 
indefinitely as of the date of the order. The enjoined words will 
become effective immediately if the court terminates the injunction. 
At that time, DoD, GSA, and NASA will publish a document in the 
Federal Register advising the public of the termination of the 
injunction.

    (ii) * * *

    Note to paragraph (a)(1)(ii): By a court order issued on October 
24, 2016, the word ``ALCA'' in this paragraph (a)(1)(ii) is enjoined 
indefinitely as of the date of the order. The enjoined word will 
become effective immediately if the court terminates the injunction. 
At that time, DoD, GSA, and NASA will publish a document in the 
Federal Register advising the public of the termination of the 
injunction.

* * * * *
    (h) * * *
    (5) * * *

    Note to paragraph (h)(5) introductory text: By a court order 
issued on October 24, 2016, this paragraph (h)(5) is enjoined 
indefinitely as of the date of the order. The enjoined paragraph 
will become effective immediately if the court terminates the 
injunction. At that time, DoD, GSA, and NASA will publish a document 
in the Federal Register advising the public of the termination of 
the injunction.

* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
22. Amend section 52.204-8 by--
0
a. Revising the date of the provision; and
0
b. Adding a Note to paragraph (c)(1)(xv).
    The revision and addition reads as follows:


52.204-8  Annual Representations and Certifications.

* * * * *

Annual Representations and Certifications (DEC 2016)

* * * * *
    (c)(1) * * *
    (xv) * * *

    Note to paragraph (c)(1)(xv): By a court order issued on October 
24, 2016, 52.222-57 is enjoined indefinitely as of the date of the 
order. The enjoined paragraph will become effective immediately if 
the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.

* * * * *

0
23. Amend section 52.212-3 by--
0
a. Revising the date of the provision; and
0
b. Adding Notes to paragraphs (a) and (s).
    The revision and addition reads as follows:


52.212-3  Offeror Representations and Certifications--Commercial Items.

* * * * *

Offeror Representations and Certifications--Commercial Items (DEC 2016)

* * * * *
    (a) * * *

    Note to paragraph (a): By a court order issued on October 24, 
2016, the following definitions in this paragraph (a) are enjoined 
indefinitely as of the date of the order: ``Administrative merits 
determination'', ``Arbitral award or decision'', paragraph (2) of 
``Civil judgment'', ``DOL Guidance'', ``Enforcement agency'', 
``Labor compliance agreement'', ``Labor laws'', and ``Labor law 
decision''. The enjoined definitions will become effective 
immediately if the court terminates the injunction. At that time, 
DoD, GSA, and NASA will publish a document in the Federal Register 
advising the public of the termination of the injunction.

* * * * *
    (s) * * *

    Note to paragraph (s): By a court order issued on October 24, 
2016, this paragraph (s) is enjoined indefinitely as of the date of 
the order. The enjoined paragraph will become effective immediately 
if the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.

* * * * *

0
24. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Adding Notes to paragraphs (b)(35) and (e)(1)(xvi); and
0
c. Amending Alternate II by--
0
1. Revising the date of the Alternate; and
0
2. Adding a Note to paragraph (e)(1)(ii)(P) of Alternate II.
    The revisions and additions 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 (DEC 2016)

* * * * *
    (b) * * *
    (35) * * *

    Note to paragraph (b)(35): By a court order issued on October 
24, 2016, 52.222-59 is enjoined indefinitely as of the date of the 
order. The enjoined paragraph will become effective immediately if 
the court terminates the injunction. At that time, DoD, GSA, and 
NASA will publish a document in the Federal Register advising the 
public of the termination of the injunction.

* * * * *
    (e)(1) * * *
    (xvi) * * *

    Note to paragraph (e)(1)(xvi): By a court order issued on 
October 24, 2016, 52.222-59 is enjoined indefinitely as of the date 
of the order. The enjoined paragraph will become effective 
immediately if the court terminates the injunction. At that time, 
DoD, GSA, and NASA will publish a document in the Federal Register 
advising the public of the termination of the injunction.

* * * * *
    Alternate II (DEC 2016). * * *
* * * * *
    (e)(1) * * *
    (ii) * * *
    (P) * * *

    Note to paragraph (e)(1)(ii)(P): By a court order issued on 
October 24, 2016, 52.222-59 is enjoined indefinitely as of the date 
of the order. The enjoined paragraph will become effective 
immediately if the court terminates the injunction. At that time, 
DoD, GSA, and NASA will publish a document in the Federal Register 
advising the public of the termination of the injunction.

* * * * *

0
25. Amend section 52.222-57 by revising the date of the provision and 
adding a Note to the section to read as follows:

[[Page 91641]]

52.222-57  Representation Regarding Compliance with Labor Laws 
(Executive Order 13673).

* * * * *

Representation Regarding Compliance With Labor Laws (Executive Order 
13673) (DEC 2016)

* * * * *

    Note to 52.222-57: By a court order issued on October 24, 2016, 
52.222-57 is enjoined indefinitely as of the date of the order. The 
enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
26. Amend section 52.222-58 by revising the date of the provision and 
adding a Note to the section to read as follows:


52.222-58  Subcontractor Responsibility Matters Regarding Compliance 
with Labor Laws (Executive Order 13673).

* * * * *
    Subcontractor Responsibility Matters Regarding Compliance With 
Labor Laws (Executive Order 13673) (DEC 2016)
* * * * *

    Note to 52.222-58: By a court order issued on October 24, 2016, 
52.222-58 is enjoined indefinitely as of the date of the order. The 
enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
27. Amend section 52.222-59 by revising the date of the clause and 
adding a Note to the section to read as follows:


52.222-59  Compliance with Labor Laws (Executive Order 13673).

* * * * *

Compliance With Labor Laws (Executive Order 13673) (DEC 2016)

* * * * *

    Note to 52.222-59: By a court order issued on October 24, 2016, 
52.222-59 is enjoined indefinitely as of the date of the order. The 
enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
28. Amend section 52.222-61 by revising the date of the clause and 
adding a Note to the section to read as follows:


52.222-61  Arbitration of Contractor Employee Claims (Executive Order 
13673).

* * * * *

Arbitration of Contractor Employee Claims (Executive Order 13673) (DEC 
2016)

* * * * *

    Note to 52.222-61: By a court order issued on October 24, 2016, 
52.222-61 is enjoined indefinitely as of the date of the order. The 
enjoined section will become effective immediately if the court 
terminates the injunction. At that time, DoD, GSA, and NASA will 
publish a document in the Federal Register advising the public of 
the termination of the injunction.


0
29. Amend section 52.244-6 by--
0
a. Revising the date of the clause; and
0
b. Adding a Note to paragraph (c)(1)(xiii).
    The revision and addition read as follows:


52.244-6  Subcontracts for Commercial Items.

* * * * *

Subcontracts for Commercial Items (DEC 2016)

* * * * *
    (c)(1) * * *
    (xiii) * * *

    Note to paragraph (c)(1)(xiii): By a court order issued on 
October 24, 2016, 52.222-59 is enjoined indefinitely as of the date 
of the order. The enjoined paragraph will become effective 
immediately if the court terminates the injunction. At that time, 
DoD, GSA, and NASA will publish a document in the Federal Register 
advising the public of the termination of the injunction.

* * * * *
[FR Doc. 2016-30091 Filed 12-15-16; 8:45 am]
 BILLING CODE 6820-EP-P

91636 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations other proof of the verifiable information on their respective implementing regulations, or this paragraph (m), in all subcontracts, which such estimates are reasonably based. any other applicable law. regardless of dollar value, that are subject to Only if the Contractor relies on an estimate (j) Interference/discrimination. (1) The the Service Contract Labor Standards statute that is reasonable and based on verifiable Contractor shall not in any manner interfere or the Wage Rate Requirements information will an employee’s time spent in with an employee’s accrual or use of paid (Construction) statute, and are to be connection with noncovered work be sick leave as required by E.O. 13706 or 29 performed in whole or in part in the United excluded from hours worked counted toward CFR part 13. Interference includes, but is not States. the accrual of paid sick leave. If the limited to— Contractor estimates the amount of time an (i) Miscalculating the amount of paid sick (End of clause) employee spends performing in connection leave an employee has accrued; ■ 15. Amend section 52.244–6 by— with contracts covered by the E.O., the (ii) Denying or unreasonably delaying a ■ a. Revising the date of the clause and Contractor shall permit the employee to use response to a proper request to use paid sick leave; paragraph (c)(1)(xii); his or her paid sick leave during any work (iii) Discouraging an employee from using ■ b. Redesignating paragraphs (c)(1)(xv) time for the Contractor. (3) In the event the Contractor is not paid sick leave; through (xvii) as paragraphs (c)(1)(xvi) obligated by the Service Contract Labor (iv) Reducing an employee’s accrued paid through (xviii), respectively; and Standards statute, the Wage Rate sick leave by more than the amount of such ■ c. Adding a new paragraph (c)(1)(xv). Requirements (Construction) statute, or the leave used; The revisions and addition read as Fair Labor Standards Act to keep records of (v) Transferring an employee to work on follows: an employee’s hours worked, such as because contracts not covered by the E.O. to prevent the employee is exempt from the Fair Labor the accrual or use of paid sick leave; 52.244–6 Subcontracts for Commercial Standards Act’s minimum wage and overtime (vi) Disclosing confidential information Items. requirements, and the Contractor chooses to contained in certification or other documentation provided to verify the need to * * * * * use the assumption permitted by 29 CFR 13.5(a)(1)(iii), the Contractor is excused from use paid sick leave; or Subcontracts for Commercial Items the requirement in paragraph (i)(1)(iv) of this (vii) Making the use of paid sick leave (JAN 2017) clause and 29 CFR 13.25(a)(4) to keep records contingent on the employee’s finding a of the employee’s number of daily and replacement worker or the fulfillment of the * * * * * weekly hours worked. Contractor’s operational needs. (c)(1) * * * (4)(i) Records relating to medical histories (2) The Contractor shall not discharge or in (xii) 52.222–55, Minimum Wages under or domestic violence, sexual assault, or any other manner discriminate against any Executive Order 13658 (DEC 2015), if employee for— flowdown is required in accordance with stalking, created for purposes of E.O. 13706, (i) Using, or attempting to use, paid sick paragraph (k) of FAR clause 52.222–55. whether of an employee or an employee’s leave as provided for under E.O. 13706 and child, parent, spouse, domestic partner, or 29 CFR part 13; * * * * * other individual related by blood or affinity (xv) 52.222–62, Paid Sick Leave Under (ii) Filing any complaint, initiating any whose close association with the employee is proceeding, or otherwise asserting any right Executive Order 13706 (JAN 2017) (E.O. the equivalent of a family relationship, shall or claim under E.O. 13706 and 29 CFR part 13706), if flowdown is required in be maintained as confidential records in 13; accordance with paragraph (m) of FAR clause separate files/records from the usual (iii) Cooperating in any investigation or 52.222–62. personnel files. testifying in any proceeding under E.O. * * * * * (ii) If the confidentiality requirements of 13706 and 29 CFR part 13; or the Genetic Information Nondiscrimination [FR Doc. 2016–30090 Filed 12–15–16; 8:45 am] (iv) Informing any other person about his Act of 2008 (GINA), section 503 of the or her rights under E.O. 13706 and 29 CFR BILLING CODE 6820–EP–P Rehabilitation Act of 1973, and/or the part 13. Americans with Disabilities Act (ADA) apply (k) Notice. The Contractor shall notify all to records or documents created to comply employees performing work on or in DEPARTMENT OF DEFENSE with the recordkeeping requirements in this connection with a contract covered by the contract clause, the records and documents E.O. of the paid sick leave requirements of GENERAL SERVICES shall also be maintained in compliance with E.O. 13706, 29 CFR part 13, and this clause ADMINISTRATION the confidentiality requirements of the GINA, by posting a notice provided by the section 503 of the Rehabilitation Act of 1973, Department of Labor in a prominent and NATIONAL AERONAUTICS AND and/or ADA as described in 29 CFR 1635.9, accessible place at the worksite so it may be SPACE ADMINISTRATION 41 CFR 60–741.23(d), and 29 CFR readily seen by employees. Contractors that 1630.14(c)(1), respectively. customarily post notices to employees (iii) The Contractor shall not disclose any 48 CFR Parts 1, 4, 9, 17, 22, 42, and 52 electronically may post the notice documentation used to verify the need to use electronically, provided such electronic [FAC 2005–93; FAR Case 2014–025; Item 3 or more consecutive days of paid sick leave posting is displayed prominently on any Web II; Docket No. 2014–0025; Sequence No. 2] for the purposes listed in 29 CFR site that is maintained by the Contractor, 13.5(c)(1)(iv) (as described in 29 CFR whether external or internal, and customarily RIN 9000–AN30 13.5(e)(1)(ii)) and shall maintain used for notices to employees about terms confidentiality about any domestic abuse, and conditions of employment. Federal Acquisition Regulation; Fair sexual assault, or stalking, unless the (l) Disputes concerning labor standards. Pay and Safe Workplaces; Injunction employee consents or when disclosure is Disputes related to the application of E.O. required by law. 13706 to this contract shall not be subject to AGENCY: Department of Defense (DoD), (5) The Contractor shall permit authorized the general disputes clause of the contract. General Services Administration (GSA), representatives of the Wage and Hour Such disputes shall be resolved in and National Aeronautics and Space Division to conduct interviews with accordance with the procedures of the Administration (NASA). asabaliauskas on DSK3SPTVN1PROD with RULES employees at the worksite during normal Department of Labor set forth in 29 CFR part ACTION: Final rule; injunction. working hours. 13. Disputes within the meaning of this (6) Nothing in this contract clause limits or contract clause include disputes between the SUMMARY: A final rule was published in otherwise modifies the Contractor’s Contractor (or any of its subcontractors) and recordkeeping obligations, if any, under the the contracting agency, the Department of the Federal Register on August 25, 2016 Service Contract Labor Standards statute, the Labor, or the employees or their amending the Federal Acquisition Wage Rate Requirements (Construction) representatives. Regulation (FAR) to implement the statute, the Fair Labor Standards Act, the (m) Subcontracts. The Contractor shall Executive Order (E.O.) on Fair Pay and Family and Medical Leave Act, E.O. 13658, insert the substance of this clause, including Safe Workplaces. The E.O. was designed VerDate Sep<11>2014 20:58 Dec 15, 2016 Jkt 241001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER5.SGM 16DER5

Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations 91637 to promote contracting efficiency by memorandum to the Chief Acquisition In further compliance with the terms improving compliance with basic labor Officers, Senior Procurement of the Court Order, as explained by the standards during the performance of Executives, Defense Acquisition FAR Council in its October 25 federal contracts. Implementation of Regulations Council, and Civilian Memorandum, GSA’s Integrated Award portions of the E.O. was preliminarily Agency Acquisition Council directing Environment has halted actions to enjoined by an order issued by a Federal that all steps necessary be taken to release the changes for the System for District court on October 24, 2016. DoD, ensure the enjoined sections, Award Management (SAM) that would GSA, and NASA are amending sections provisions, and clauses of the final rule support bidder and contractor of the FAR that are affected by the are not implemented until such time as submission of information on labor law Court’s preliminary injunction order. the injunction is terminated. The violation decisions as well as the DATES: Effective: December 16, 2016. Council enumerated specific steps to be changes that would support public Applicability Date: October 24, 2016. taken at a minimum, including the disclosure of this information in the FOR FURTHER INFORMATION CONTACT: Ms. following: Federal Awardee Performance and Zenaida Delgado, Procurement Analyst, 1. Ensure new solicitations do not Integrity Information System (FAPIIS). at 202–969–7207 for clarification of include representations or clauses that content. For information pertaining to the enjoined coverage of the rule would 2. Paycheck Transparency status or publication schedules, contact have required—i.e., the representation at FAR 52.222–57 and its commercial The final rule issued on August 25 the Regulatory Secretariat Division at also included coverage addressing the 202–501–4755. Please cite FAC 2005– items version at paragraph (s) of 52.212– 3, and 52.222–58 and the clause at paycheck transparency requirements in 93, FAR Case 2014–025; Injunction. section 5 of the E.O. Section 5(a) of the SUPPLEMENTARY INFORMATION: 52.222–59, to direct disclosure of labor law violation decisions by offerors or E.O. requires contractors and A. Background contractors, or clause 52.222–61, that subcontractors performing covered would require an offeror or contractor to contracts or subcontracts to provide 1. The Final Rule and Court Order wage statements to covered workers, agree to restrict use of mandatory pre- On August 25, 2016, DoD, GSA, and dispute arbitration agreements. giving them information concerning NASA published a final rule in the 2. If a solicitation has been issued their hours worked, overtime hours pay, Federal Register at 81 FR 58562 to with representations or clauses listed in and any additions to or deductions implement Executive Order (E.O.) the previous paragraph 1, amend those made from their pay. Section 5(b) 13673, as amended by E.O. 13683 and solicitations immediately to remove requires contractors and subcontractors 13738 (hereinafter designated as the those representations and clauses. performing covered contracts or ‘‘E.O.’’). The E.O. was designed to Additionally, agencies shall not take subcontracts to provide a document to promote contracting efficiency by any action on information, if any, individuals performing work under the improving contractor compliance with submitted in response to those contract or subcontract as independent basic labor standards during the representations and clauses. contractors informing them of their performance of Federal contracts. The 3. Ensure contracting officers do not status as independent contractors. These rule, which added coverage in FAR implement the procedures in FAR requirements are implemented in FAR parts 1, 4, 9, 17, 22, 42, and 52, had an 22.2004–2, 22.2004–3, 22.2004–4, or 22.2005, FAR 22.2007(d), and the clause effective date of October 25, 2016. associated changes in FAR parts 9 and at FAR 52.222–60, and further reflected On October 7, 2016, the Associated 42. in several other FAR clauses. The Court Builders and Contractors of Southeast The FAR Council requested that Order does not enjoin implementation Texas, Inc., the Associated Builders and agencies share its instructions widely of the coverage on paycheck Contractors, Inc., and the National among their workforces. It posted the transparency. On page 31 of the Order, Association of Security Companies filed Memorandum at https:// the Court explains that ‘‘[t]he court does a lawsuit in the United States District www.acquisition.gov/fair-pay-eo and the not find that Plaintiffs have established Court for the Eastern District of Texas Department of Labor re-posted the a substantial likelihood of success on (Civil Action No. 1:16–CV–425) seeking Memorandum at the top of its their claims regarding the ‘paycheck to overturn the final rule. On October information page on the Fair Pay and transparency requirement’ and have 13, 2016, the plaintiffs filed an Safe Workplaces E.O. at https:// failed to establish that they will suffer ‘‘Emergency Motion for Temporary www.dol.gov/asp/ irreparable harm as to the Restraining Order and Preliminary fairpayandsafeworkplaces/. implementation of those provisions, Injunction.’’ As an additional step to ensure full awareness of, and compliance with, the which do not take effect until January 1, The District Court issued a Court Order, DoD, GSA, and NASA, on 2017. See 81 FR at 58713. Therefore, the ‘‘Memorandum and Order Granting behalf of the FAR Council, are taking court declines to enjoin enforcement of Preliminary Injunction’’ on October 24, this more comprehensive administrative the paycheck provisions.’’ Accordingly, 2016. The Court Order on page 31 states action to amend the final rule to include the paycheck transparency clause that ‘‘Defendants are enjoined [from] caveats throughout the rule for each language at FAR 52.222–60, 52.244– implementing any portion of the FAR section, provision, and clause that was 6(c)(1)(xiv), 52.212–5(b)(36), (e)(1)(xvii) Rule or Department of Labor Guidance enjoined by the terms of the Court and Alternate II(e)(1)(ii)(Q) take effect relating to the new reporting and disclosure requirements regarding labor Order. The caveat explains that the for new solicitations issued on or after asabaliauskas on DSK3SPTVN1PROD with RULES law violations as described in Executive affected regulatory coverage has been January 1, 2017, as stated in the final Order 13673 and implemented in the enjoined as of October 24 and is rule. FAR Rule and DOL Guidance. Further, enjoined indefinitely, but will become A number of other provisions in FAR Defendants are enjoined from enforcing effective immediately if the injunction parts 9, 22 and clause language in part the restriction on arbitration is terminated. At that time, DOD, GSA, 52 that make minor editorial changes or agreements.’’ and NASA will take an additional technical references are also not affected On October 25, 2016, the Federal administrative action to remove the by the Court Order and, for this reason, Acquisition Regulatory Council issued a caveats added by this final rule. do not appear in this final rule. VerDate Sep<11>2014 20:58 Dec 15, 2016 Jkt 241001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER5.SGM 16DER5

91638 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations B. Executive Orders 12866 and 13563 PART 4—ADMINISTRATIVE MATTERS sentence of this paragraph (b)(4) is enjoined indefinitely as of the date of the order. The Executive Orders (E.O.s) 12866 and ■ 3. Amend section 4.1202 by adding a enjoined sentence will become effective 13563 direct agencies to assess all costs Note to paragraph (a)(21) to read as immediately if the court terminates the and benefits of available regulatory follows: injunction. At that time, DoD, GSA, and NASA will publish a document in the alternatives and, if regulation is 4.1202 Solicitation provision and contract Federal Register advising the public of the necessary, to select regulatory clause. termination of the injunction. approaches that maximize net benefits (a) * * * * * * * * (including potential economic, (21) * * * environmental, public health and safety (6) * * * effects, distributive impacts, and Note to paragraph (a)(21): By a court order issued on October 24, 2016, this paragraph Note to paragraph (b)(6): By a court order equity). The final rule issued August 25, (a)(21) is enjoined indefinitely as of the date issued on October 24, 2016, this paragraph 2016, was a significant regulatory action of the order. The enjoined paragraph will (b)(6), is enjoined indefinitely as of the date subject to review under Section 6(b) of become effective immediately if the court of the order. The enjoined paragraph will E.O. 12866, Regulatory Planning and terminates the injunction. At that time, DoD, become effective immediately if the court GSA, and NASA will publish a document in terminates the injunction. At that time, DoD, Review, dated September 30, 1993, and the Federal Register advising the public of GSA, and NASA will publish a document in a major rule under 5 U.S.C. 804. The the Federal Register advising the public of the termination of the injunction. action published today is amending the the termination of the injunction. FAR to show enjoined sections as being * * * * * enjoined indefinitely. * * * * * PART 9—CONTRACTOR ■ 7. Amend section 9.105–1 by adding C. Regulatory Flexibility Act QUALIFICATIONS a Note to paragraph (b)(4) to read as The Regulatory Flexibility Act does follows: ■ 4. Amend section 9.104–4 by adding not apply to this rule because this final a Note to paragraph (b) to read as 9.105–1 Obtaining information. rule is an administrative action that follows: * * * * * does not require publication for public comment. 9.104–4 Subcontractor responsibility. (b) * * * * * * * * (4) * * * List of Subjects in 48 CFR Parts 1, 4, 9, (b) * * * Note to paragraph (b)(4): By a court order 17, 22, 42, and 52 issued on October 24, 2016, this paragraph Note to paragraph (b): By a court order issued on October 24, 2016, this paragraph (b)(4) is enjoined indefinitely as of the date Government procurement. of the order. The enjoined paragraph will (b) is enjoined indefinitely as of the date of Dated: December 9, 2016. the order. The enjoined paragraph will become effective immediately if the court William F. Clark, become effective immediately if the court terminates the injunction. At that time, DoD, terminates the injunction. At that time, DoD, GSA, and NASA will publish a document in Director, Office of Government-wide GSA, and NASA will publish a document in the Federal Register advising the public of Acquisition Policy, Office of Acquisition the Federal Register advising the public of the termination of the injunction. Policy, Office of Government-wide Policy. the termination of the injunction. * * * * * Therefore DoD, GSA, and NASA * * * * * amend 48 CFR parts 1, 4, 9, 17, 22, 42, PART 17—SPECIAL CONTRACTING ■ 5. Amend section 9.104–5 by adding and 52 as set forth below: METHODS a Note to paragraph (d) to read as ■ 1. The authority citation for 48 CFR follows: parts 1, 4, 9, 17, 22, 42, and 52 ■ 8. Amend section 17.207 by adding a continues to read as follows: 9.104–5 Representation and certifications Note to paragraph (c)(8) to read as regarding responsibility matters. follows: Authority: 40 U.S.C. 121(c); 10 U.S.C. * * * * * chapter 137; and 51 U.S.C. 20113. (d) * * * 17.207 Exercise of options. * * * * * PART 1—FEDERAL ACQUISITION Note to paragraph (d): By a court order issued on October 24, 2016, this paragraph (c) * * * REGULATIONS SYSTEM (d) is enjoined indefinitely as of the date of (8) * * * the order. The enjoined paragraph will Note to paragraph (c)(8): By a court order ■2. Amend section 1.106 by adding a become effective immediately if the court issued on October 24, 2016, this paragraph Note to the section to read as follows: terminates the injunction. At that time, DoD, (c)(8) is enjoined indefinitely as of the date GSA, and NASA will publish a document in of the order. The enjoined paragraph will 1.106 OMB approval under the Paperwork the Federal Register advising the public of become effective immediately if the court Reduction Act. the termination of the injunction. terminates the injunction. At that time, DoD, * * * * * * * * * * GSA, and NASA will publish a document in the Federal Register advising the public of Note to 1.106: By a court order issued on ■ 6. Amend section 9.104–6 by adding the termination of the injunction. October 24, 2016, FAR segments ‘‘52.222– Notes to paragraphs (b)(4) and (6) to 57’’, ‘‘52.222–58’’, and ‘‘52.222–59’’ and their read as follows: * * * * * asabaliauskas on DSK3SPTVN1PROD with RULES corresponding OMB Control Number ‘‘9000– 0195’’ are enjoined indefinitely as of the date 9.104–6 Federal Awardee Performance PART 22—APPLICATION OF LABOR of the order. The enjoined segments will and Integrity Information System. LAWS TO GOVERNMENT become effective immediately if the court * * * * * ACQUISITIONS terminates the injunction. At that time, DoD, (b) * * * GSA, and NASA will publish a document in (4) * * * ■ 9. Amend section 22.102–2 by adding the Federal Register advising the public of Note to paragraph (b)(4): By a court order a Note to paragraph (c)(3) to read as the termination of the injunction. issued on October 24, 2016, the second follows: VerDate Sep<11>2014 20:58 Dec 15, 2016 Jkt 241001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER5.SGM 16DER5

Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations 91639 22.102–2 Administration and enforcement. Federal Register advising the public of the 22.2004–4 Contractor preaward and * * * * * termination of the injunction. postaward assessment of a subcontractor’s (c) * * * labor law violations. (3) * * * ■ 13. Amend section 22.2003 by adding * * * * * a Note to section to read as follows: Note to paragraph (c)(3): By a court order Note to 22.2004–4: By a court order issued issued on October 24, 2016, this paragraph 22.2003 Policy. on October 24, 2016, this section is enjoined (c)(3) is enjoined indefinitely as of the date indefinitely as of the date of the order. The * * * * * enjoined section will become effective of the order. The enjoined paragraph will become effective immediately if the court Note to 22.2003: By a court order issued on immediately if the court terminates the terminates the injunction. At that time, DoD, October 24, 2016, this section is enjoined injunction. At that time, DoD, GSA, and GSA, and NASA will publish a document in indefinitely as of the date of the order. The NASA will publish a document in the the Federal Register advising the public of enjoined section will become effective Federal Register advising the public of the the termination of the injunction. immediately if the court terminates the termination of the injunction. injunction. At that time, DoD, GSA, and ■ 10. Amend section 22.104 by adding ■ 18. Amend section 22.2006 by adding NASA will publish a document in the Notes to paragraphs (b)(1) and (d) to Federal Register advising the public of the a Note to the section to read as follows: read as follows: termination of the injunction. 22.2006 Arbitration of contractor 22.104 Agency labor advisors. employee claims. ■ 14. Amend section 22.2004–1 by * * * * * * * * * * adding a Note to the section to read as (b) * * * follows: Note to 22.2006: By a court order issued on (1) * * * October 24, 2016, this section is enjoined 22.2004–1 General. indefinitely as of the date of the order. The Note to paragraph (b)(1): By a court order * * * * * enjoined section will become effective issued on October 24, 2016, the words immediately if the court terminates the ‘‘agency labor compliance advisors (ALCAs) Note to 22.2004–1: By a court order issued injunction. At that time, DoD, GSA, and (as defined at 22.2002)’’ in this paragraph on October 24, 2016, this section is enjoined NASA will publish a document in the (b)(1) are enjoined indefinitely as of the date indefinitely as of the date of the order. The Federal Register advising the public of the of the order. The enjoined words will become enjoined section will become effective termination of the injunction. effective immediately if the court terminates immediately if the court terminates the the injunction. At that time, DoD, GSA, and ■ 19. Amend section 22.2007 by adding injunction. At that time, DoD, GSA, and NASA will publish a document in the Notes to paragraphs (a), (b), (c) and (e) NASA will publish a document in the Federal Register advising the public of the Federal Register advising the public of the to read as follows: termination of the injunction. termination of the injunction. 22.2007 Solicitation provisions and * * * * * contract clauses. (d) * * * ■ 15. Amend section 22.2004–2 by adding a Note to the section to read as (a) * * * Note to paragraph (d): By a court order on October 24, 2016, this paragraph (d) is follows: Note to paragraph (a): By a court order enjoined indefinitely as of the date of the issued on October 24, 2016, this paragraph 22.2004–2 Preaward assessment of an (a) is enjoined indefinitely as of the date of order. The enjoined paragraph will become offeror’s labor law violations. effective immediately if the court terminates the order. The enjoined paragraph will the injunction. At that time, DoD, GSA, and * * * * * become effective immediately if the court NASA will publish a document in the terminates the injunction. At that time, DoD, Note to 22.2004–2: By a court order issued GSA, and NASA will publish a document in Federal Register advising the public of the on October 24, 2016, this section is enjoined termination of the injunction. the Federal Register advising the public of indefinitely as of the date of the order. The the termination of the injunction. ■ 11. Amend section 22.2000 by adding enjoined section will become effective immediately if the court terminates the (b) * * * a Note to the section to read as follows: injunction. At that time, DoD, GSA, and Note to paragraph (b): By a court order 22.2000 Scope of subpart. NASA will publish a document in the issued on October 24, 2016, this paragraph Federal Register advising the public of the (b) is enjoined indefinitely as of the date of * * * * * termination of the injunction. the order. The enjoined paragraph will Note to 22.2000: By a court order issued on become effective immediately if the court October 24, 2016, this section is enjoined ■ 16. Amend section 22.2004–3 by terminates the injunction. At that time, DoD, indefinitely as of the date of the order. The adding a Note to the section to read as GSA, and NASA will publish a document in enjoined section will become effective follows: the Federal Register advising the public of immediately if the court terminates the the termination of the injunction. injunction. At that time, DoD, GSA, and 22.2004–3 Postaward assessment of a NASA will publish a document in the prime contractor’s labor law violations. (c) * * * Federal Register advising the public of the Note to paragraph (c): By a court order termination of the injunction. * * * * * issued on October 24, 2016, this paragraph Note to section 22.2004–3: By a court order (c) is enjoined indefinitely as of the date of ■ 12. Amend section 22.2002 by adding issued on October 24, 2016, this section is the order. The enjoined paragraph will a Note to the section to read as follows: enjoined indefinitely as of the date of the become effective immediately if the court order. The enjoined section will become terminates the injunction. At that time, DoD, 22.2002 Definitions. effective immediately if the court terminates GSA, and NASA will publish a document in asabaliauskas on DSK3SPTVN1PROD with RULES * * * * * the injunction. At that time, DoD, GSA, and the Federal Register advising the public of Note to 22.2002: By a court order issued on NASA will publish a document in the the termination of the injunction. October 24, 2016, this section is enjoined Federal Register advising the public of the termination of the injunction. * * * * * indefinitely as of the date of the order. The enjoined section will become effective (e) * * * immediately if the court terminates the ■ 17. Amend section 22.2004–4 by Note to paragraph (e): By a court order injunction. At that time, DoD, GSA, and adding a Note to the section to read as issued on October 24, 2016, this paragraph NASA will publish a document in the follows: (e) is enjoined indefinitely as of the date of VerDate Sep<11>2014 20:58 Dec 15, 2016 Jkt 241001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER5.SGM 16DER5

91640 Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations the order. The enjoined paragraph will PART 52—SOLICITATION PROVISIONS NASA will publish a document in the become effective immediately if the court AND CONTRACT CLAUSES Federal Register advising the public of the terminates the injunction. At that time, DoD, termination of the injunction. GSA, and NASA will publish a document in ■ 22. Amend section 52.204–8 by— the Federal Register advising the public of * * * * * ■ a. Revising the date of the provision; the termination of the injunction. ■ 24. Amend section 52.212–5 by— and ■ b. Adding a Note to paragraph ■ a. Revising the date of the clause; PART 42—CONTRACT ■ b. Adding Notes to paragraphs (b)(35) (c)(1)(xv). ADMINISTRATION AND AUDIT and (e)(1)(xvi); and The revision and addition reads as ■ c. Amending Alternate II by— SERVICES follows: ■ 1. Revising the date of the Alternate; ■ 20. Amend section 42.1502 by adding 52.204–8 Annual Representations and and a Note to paragraph (j) to read as Certifications. ■ 2. Adding a Note to paragraph follows: * * * * * (e)(1)(ii)(P) of Alternate II. The revisions and additions read as 42.1502 Policy. Annual Representations and follows: * * * * * Certifications (DEC 2016) (j) * * * 52.212–5 Contract Terms and Conditions * * * * * Required to Implement Statutes or Note to paragraph (j): By a court order (c)(1) * * * Executive Orders—Commercial Items. issued on October 24, 2016, this paragraph (j) (xv) * * * is enjoined indefinitely as of the date of the * * * * * order. The enjoined paragraph will become Note to paragraph (c)(1)(xv): By a court Contract Terms and Conditions effective immediately if the court terminates order issued on October 24, 2016, 52.222–57 is enjoined indefinitely as of the date of the Required To Implement Statutes or the injunction. At that time, DoD, GSA, and order. The enjoined paragraph will become Executive Orders—Commercial Items NASA will publish a document in the Federal Register advising the public of the effective immediately if the court terminates (DEC 2016) termination of the injunction. the injunction. At that time, DoD, GSA, and * * * * * NASA will publish a document in the (b) * * * ■ 21. Amend section 42.1503 by adding Federal Register advising the public of the (35) * * * Notes to paragraphs (a)(1)(i) and (ii) and termination of the injunction. (h)(5) introductory text to read as Note to paragraph (b)(35): By a court order follows: * * * * * issued on October 24, 2016, 52.222–59 is ■ 23. Amend section 52.212–3 by— enjoined indefinitely as of the date of the 42.1503 Procedures. ■ a. Revising the date of the provision; order. The enjoined paragraph will become (a)(1) * * * effective immediately if the court terminates and (i) * * * the injunction. At that time, DoD, GSA, and ■ b. Adding Notes to paragraphs (a) and NASA will publish a document in the Note to paragraph (a)(1)(i): By a court (s). Federal Register advising the public of the order issued on October 24, 2016, the words The revision and addition reads as termination of the injunction. ‘‘agency labor compliance advisor (ALCA) follows: office (see subpart 22.20)’’ in this paragraph * * * * * (a)(1)(i) are enjoined indefinitely as of the 52.212–3 Offeror Representations and (e)(1) * * * date of the order. The enjoined words will Certifications—Commercial Items. (xvi) * * * become effective immediately if the court * * * * * Note to paragraph (e)(1)(xvi): By a court terminates the injunction. At that time, DoD, Offeror Representations and order issued on October 24, 2016, 52.222–59 GSA, and NASA will publish a document in is enjoined indefinitely as of the date of the the Federal Register advising the public of Certifications—Commercial Items (DEC order. The enjoined paragraph will become the termination of the injunction. 2016) effective immediately if the court terminates (ii) * * * * * * * * the injunction. At that time, DoD, GSA, and Note to paragraph (a)(1)(ii): By a court (a) * * * NASA will publish a document in the order issued on October 24, 2016, the word Federal Register advising the public of the Note to paragraph (a): By a court order termination of the injunction. ‘‘ALCA’’ in this paragraph (a)(1)(ii) is issued on October 24, 2016, the following enjoined indefinitely as of the date of the order. The enjoined word will become definitions in this paragraph (a) are enjoined * * * * * indefinitely as of the date of the order: Alternate II (DEC 2016). * * * effective immediately if the court terminates ‘‘Administrative merits determination’’, * * * * * the injunction. At that time, DoD, GSA, and ‘‘Arbitral award or decision’’, paragraph (2) (e)(1) * * * NASA will publish a document in the of ‘‘Civil judgment’’, ‘‘DOL Guidance’’, Federal Register advising the public of the (ii) * * * ‘‘Enforcement agency’’, ‘‘Labor compliance termination of the injunction. (P) * * * agreement’’, ‘‘Labor laws’’, and ‘‘Labor law * * * * * decision’’. The enjoined definitions will Note to paragraph (e)(1)(ii)(P): By a court (h) * * * become effective immediately if the court order issued on October 24, 2016, 52.222–59 (5) * * * terminates the injunction. At that time, DoD, is enjoined indefinitely as of the date of the GSA, and NASA will publish a document in order. The enjoined paragraph will become Note to paragraph (h)(5) introductory text: the Federal Register advising the public of effective immediately if the court terminates By a court order issued on October 24, 2016, the termination of the injunction. the injunction. At that time, DoD, GSA, and this paragraph (h)(5) is enjoined indefinitely NASA will publish a document in the asabaliauskas on DSK3SPTVN1PROD with RULES as of the date of the order. The enjoined * * * * * Federal Register advising the public of the paragraph will become effective immediately (s) * * * termination of the injunction. if the court terminates the injunction. At that time, DoD, GSA, and NASA will publish a Note to paragraph (s): By a court order * * * * * document in the Federal Register advising issued on October 24, 2016, this paragraph (s) is enjoined indefinitely as of the date of the ■ 25. Amend section 52.222–57 by the public of the termination of the injunction. order. The enjoined paragraph will become revising the date of the provision and effective immediately if the court terminates adding a Note to the section to read as * * * * * the injunction. At that time, DoD, GSA, and follows: VerDate Sep<11>2014 20:58 Dec 15, 2016 Jkt 241001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER5.SGM 16DER5

Federal Register / Vol. 81, No. 242 / Friday, December 16, 2016 / Rules and Regulations 91641 52.222–57 Representation Regarding enjoined section will become effective DEPARTMENT OF DEFENSE Compliance with Labor Laws (Executive immediately if the court terminates the Order 13673). injunction. At that time, DoD, GSA, and GENERAL SERVICES * * * * * NASA will publish a document in the Federal Register advising the public of the ADMINISTRATION Representation Regarding Compliance termination of the injunction. With Labor Laws (Executive Order NATIONAL AERONAUTICS AND ■ 28. Amend section 52.222–61 by SPACE ADMINISTRATION 13673) (DEC 2016) revising the date of the clause and * * * * * adding a Note to the section to read as 48 CFR Chapter 1 Note to 52.222–57: By a court order issued follows: on October 24, 2016, 52.222–57 is enjoined 52.222–61 Arbitration of Contractor [Docket No. FAR 2016–0051, Sequence No. indefinitely as of the date of the order. The Employee Claims (Executive Order 13673). 7] enjoined section will become effective immediately if the court terminates the * * * * * injunction. At that time, DoD, GSA, and Federal Acquisition Regulation; Arbitration of Contractor Employee Federal Acquisition Circular 2005–93; NASA will publish a document in the Federal Register advising the public of the Claims (Executive Order 13673) (DEC Small Entity Compliance Guide termination of the injunction. 2016) ■ 26. Amend section 52.222–58 by * * * * * AGENCY: Department of Defense (DoD), revising the date of the provision and Note to 52.222–61: By a court order issued General Services Administration (GSA), adding a Note to the section to read as on October 24, 2016, 52.222–61 is enjoined and National Aeronautics and Space follows: indefinitely as of the date of the order. The Administration (NASA). enjoined section will become effective 52.222–58 Subcontractor Responsibility immediately if the court terminates the ACTION: Small Entity Compliance Guide. Matters Regarding Compliance with Labor injunction. At that time, DoD, GSA, and Laws (Executive Order 13673). NASA will publish a document in the SUMMARY: This document is issued Federal Register advising the public of the under the joint authority of DOD, GSA, * * * * * termination of the injunction. Subcontractor Responsibility Matters and NASA. This Small Entity Regarding Compliance With Labor Laws ■ 29. Amend section 52.244–6 by— Compliance Guide has been prepared in (Executive Order 13673) (DEC 2016) ■ a. Revising the date of the clause; and accordance with section 212 of the * * * * * ■ b. Adding a Note to paragraph Small Business Regulatory Enforcement (c)(1)(xiii). Fairness Act of 1996. It consists of a Note to 52.222–58: By a court order issued The revision and addition read as on October 24, 2016, 52.222–58 is enjoined summary of the rules appearing in follows: indefinitely as of the date of the order. The Federal Acquisition Circular (FAC) enjoined section will become effective 52.244–6 Subcontracts for Commercial 2005–93, which amends the Federal immediately if the court terminates the Items. Acquisition Regulation (FAR). An injunction. At that time, DoD, GSA, and * * * * * asterisk (*) next to a rule indicates that NASA will publish a document in the a regulatory flexibility analysis has been Federal Register advising the public of the Subcontracts for Commercial Items termination of the injunction. (DEC 2016) prepared. Interested parties may obtain further information regarding these ■ 27. Amend section 52.222–59 by * * * * * rules by referring to FAC 2005–93, revising the date of the clause and (c)(1) * * * which precedes this document. These adding a Note to the section to read as (xiii) * * * documents are also available via the follows: Note to paragraph (c)(1)(xiii): By a court Internet at http://www.regulations.gov. order issued on October 24, 2016, 52.222–59 52.222–59 Compliance with Labor Laws is enjoined indefinitely as of the date of the DATES: December 16, 2016. (Executive Order 13673). order. The enjoined paragraph will become * * * * * effective immediately if the court terminates FOR FURTHER INFORMATION CONTACT: For the injunction. At that time, DoD, GSA, and clarification of content, contact the Compliance With Labor Laws NASA will publish a document in the analyst whose name appears in the table (Executive Order 13673) (DEC 2016) Federal Register advising the public of the below. Please cite FAC 2005–93 and the termination of the injunction. * * * * * FAR case number. For information Note to 52.222–59: By a court order issued * * * * * pertaining to status or publication on October 24, 2016, 52.222–59 is enjoined [FR Doc. 2016–30091 Filed 12–15–16; 8:45 am] schedules, contact the Regulatory indefinitely as of the date of the order. The BILLING CODE 6820–EP–P Secretariat Division at 202–501–4755. RULES LISTED IN FAC 2005–93 Item Subject FAR case Analyst I * .................... Paid Sick Leave for Federal Contractors (Interim) .................................................................... 2017–001 Delgado. II ..................... Fair Pay and Safe Workplaces; Injunction ................................................................................. 2014–025 Delgado. asabaliauskas on DSK3SPTVN1PROD with RULES SUPPLEMENTARY INFORMATION: subjects set forth in the documents Item I—Paid Sick Leave for Federal Summaries for each FAR rule follow. following these item summaries. FAC Contractors (FAR Case 2017–001) For the actual revisions and/or 2005–93 amends the FAR as follows: (Interim) amendments made by these rules, refer This interim rule amends the FAR to to the specific item numbers and implement Executive Order (E.O.) 13706 VerDate Sep<11>2014 22:22 Dec 15, 2016 Jkt 241001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER5.SGM 16DER5


Document Created: 2018-02-14 09:07:09
Document Modified: 2018-02-14 09:07:09
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule; injunction.
DatesEffective: December 16, 2016.
ContactMs. Zenaida Delgado, Procurement Analyst, at 202-969-7207 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAC 2005-93, FAR Case 2014-025; Injunction.
FR Citation81 FR 91636 
RIN Number9000-AN30
CFR Citation48 CFR 17
48 CFR 1
48 CFR 22
48 CFR 4
48 CFR 42
48 CFR 52
48 CFR 9
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