SUPPLEMENTARY INFORMATION:

A. Background

This final rule—

1. Moves the Prohibition of Segregated Facilities clause from the list at paragraph (b), to the list at paragraph (a), of the clause at 52.213-4 and clarifies the existing requirements of 41 CFR 60-1.8, promulgated by the Department of Labor under E.O. 11246. The Prohibition of Segregated Facilities clause must be included in contracts whenever the Equal Opportunity clause (FAR 52.222-26) is included.

2. Moves the Equal Opportunity clause from the list at paragraph (b), to the list at paragraph (a), of the clause at 52.213-4 because the clause must be included in almost all contracts, even those under $10,000, in accordance with the requirements at FAR 22.802(a)(1) ( printed page 13067) and 22.807(b). Even though included, the clause is inapplicable unless the aggregate value of contracts and subcontracts awarded to the contractor exceeds $10,000 in a year.

3. Makes other revisions to paragraphs (b)(1)(i), (b)(1)(v), and (b)(1)(vii) of the clause at FAR 52.213-4, and paragraph (a) of the clause at FAR 52.222-26, relating to geographic applicability of labor clauses, to comply with the current regulations at FAR 22.603, 22.807(b)(2), 22.1001, 22.1003-2, and 22.1408(a)(1).

DoD, GSA, and NASA published a proposed rule in the Federal Register at 65 FR 64298, October 26, 2000. Two respondents submitted public comments. One respondent is in favor of the rule, while the other commenter believes the 52.222-36 clause change creates a double standard, strongly favoring Americans, while making non-Americans working outside the United States susceptible to abuses by contractors. The Councils believe that the comment is outside the scope of the rule. The clause at 52.222-36 does not apply to employees recruited outside the United States for work performed outside the United States. This has been in the FAR since this FAR subpart was written in 1984. It is in the Department of Labor regulation which is the source of the FAR subpart (see 41 CFR 60-741.4(a)(4)). The concept is that the country in which the work is performed has the sovereignty to write its own laws regarding affirmative action of those disabled workers. This case confirms that this long-standing exception applies to items whether commercial or noncommercial. Accordingly, the comments resulted in no change to the rule.

This is not a significant regulatory action, and therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because this rule only clarifies the existing requirements.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

Therefore, DoD, GSA, and NASA amend 48 CFR part 52 as set forth below:

1. The authority citation for 48 CFR part 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).

2. Amend section 52.213-4 by—

a. Revising the date of the clause;

b. Redesignating paragraphs (a)(1)(ii) and (a)(1)(iii) as (a)(1)(iv) and (a)(1)(v), respectively, and adding new paragraphs (a)(1)(ii) and (a)(1)(iii);

c. Removing paragraphs (b)(1)(ii) and (b)(1)(iii), and redesignating paragraphs (b)(1)(iv) through (b)(1)(xiii) as (b)(1)(ii) through (b)(1)(xi), respectively; and

d. Revising paragraph (b)(1)(i) and newly designated paragraphs (b)(1)(iii) and (b)(1)(v).

The added and revised text reads as follows:

3. Amend section 52.222-26 by—

a. Revising the date of the clause;

b. Removing the paragraph designation and the introductory text of paragraph (b);

c. Redesignating paragraph (a) as paragraph (b) and revising the introductory text; and

d. Adding a new paragraph (a).

The added and revised text reads as follows: