[Federal Register Volume 83, Number 163 (Wednesday, August 22, 2018)]
[Rules and Regulations]
[Pages 42570-42571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17826]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 22, and 52
[FAC 2005-100; FAR Case 2016-007; Item II; Docket No. 2016-0007;
Sequence No. 1]
RIN 9000-AN10
Federal Acquisition Regulation: Non-Retaliation for Disclosure of
Compensation Information
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA adopted as final, without change, an
interim rule amending the Federal Acquisition Regulation (FAR) to
implement Executive Order (E.O.), Non-Retaliation for Disclosure of
Compensation Information. The interim rule also implemented a final
rule issued by the Department of Labor.
DATES: Effective: August 22, 2018.
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 2005-100, FAR
Case 2016-007.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published an interim rule in the Federal
Register at 81 FR 67732 on September 30, 2016, to implement E.O. 13665,
Non-retaliation for Disclosure of Compensation Information. The E.O.
was signed April 8, 2014, and was published in the Federal Register at
79 FR 20749 on April 11, 2014. E.O. 13665 amends E.O. 11246 to provide
for a uniform policy for the Federal Government to prohibit Federal
contractors from discriminating against employees and job applicants
who inquire about, discuss, or disclose their own compensation or the
compensation of other employees or applicants. The interim FAR rule
also implemented the final rule issued by the Office of Federal
Contract Compliance Programs (OFCCP) of the Department of Labor (DOL)
to implement E.O. 13665. The DOL final rule, entitled ``Government
Contractors, Prohibitions Against Pay Secrecy Policies and Actions'',
was published in the Federal Register at 80 FR 54934, on September 11,
2015. The DOL rule revises 41 CFR part 60-1. Two respondents submitted
comments on the interim FAR rule.
II. Discussion and Analysis
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the public comments in the
development of the final rule. A discussion of the comments is provided
as follows:
A. Summary of Significant Changes
There are no changes to the interim rule.
B. Analysis of Public Comments
Comment: Both respondents strongly supported the interim FAR rule.
Both respondents stated that the interim rule is necessary to bring an
end to pay secrecy policies and practices that perpetuate
discrimination, including the
[[Page 42571]]
gender pay gap. The respondents also presented rationale as to why the
interim rule will benefit businesses, individual workers, and the
economy.
Response: Noted.
III. 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). E.O.
13563, Improving Regulation and Regulatory Review, emphasizes the
importance of quantifying both costs and benefits, of reducing costs,
of harmonizing rules, and of promoting flexibility. This is not a
significant regulatory action and, therefore, was not subject to review
under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated
September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
IV. Executive Order 13771
This rule is not subject to E.O. 13771, Reducing Regulation and
Controlling Regulatory Costs, because this rule is not a significant
regulatory action under E.O. 12866.
V. Regulatory Flexibility Act
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5
U.S.C. 601 et seq. The FRFA is summarized as follows:
DoD, GSA, and NASA are converting to a final rule, without
change, an interim rule that amended the Federal Acquisition
Regulation (FAR) to implement Executive Order (E.O.) 13665, Non-
Retaliation for Disclosure of Compensation Information. E.O. 13665
amended E.O. 11246, Equal Opportunity in Federal Employment. The
interim rule also implemented a final rule issued by the Department
of Labor (DOL) at 41 CFR part 60-1, published in the Federal
Register at 80 FR 54934, on September 11, 2015.
The objective of this rule is to provide for a uniform policy
for the Federal Government to prohibit Federal contractors from
discriminating against employees and job applicants who inquire
about, discuss, or disclose their own compensation or the
compensation of other employees or applicants.
No public comments were received in response to the initial
regulatory flexibility analysis.
The rule will apply to all entities, both small and other than
small. Based on the most current System for Award Management data
available, defining small as fewer than 500 employees, then there
are 328,552 small contractor firms. Defining small as firms with
less than $35.5 million in revenue, then there are 315,902 small
contractor firms. Thus, the total number of small contractor firms
that may be impacted by the rule range from 315,902 to 328,552.
Recordkeeping and reporting requirements of the interim rule
involved regulatory familiarization and administrative costs
associated with incorporating revised language into policies,
instructions, notices to employees, and subcontracts. In
implementing the additional prohibition, the interim rule required
that contractors and subcontractors disseminate the
nondiscrimination provision, using language prescribed by the
Director of the Office of Federal Contract Compliance Programs
(OFCCP), including incorporating the nondiscrimination provision
into existing employee manuals and handbooks and posting it
electronically or in conspicuous places available to employees and
applicants. An analysis of estimated costs of the regulatory changes
was performed in the DOL final rule published in the Federal
Register at 80 FR 54934, on September 11, 2015. However, this final
rule does not have any impact on small entities, because the interim
rule has already been in effect since September 30, 2016, and the
final rule does not make any changes to the interim rule.
DoD, GSA, and NASA are not aware of any significant alternatives
to the rule that would accomplish the stated objectives of the E.O.
and the DOL implementing regulations.
It is necessary for the rule to apply to small entities, because
E.O. 11246, as amended, applies to all contracts above $10,000 that
are not completely exempted. Every effort has been made to minimize
the burdens imposed.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat Division. The Regulatory Secretariat Division
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of
the Small Business Administration.
VI. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply;
however, the information collection authorization is under the DOL
final rule issued by the OFCCP of the DOL, which was published in the
Federal Register at 80 FR 54934, on September 11, 2015, entitled
``Government Contractors, Prohibitions Against Pay Secrecy Policies and
Actions'', and is assigned Office of Management and Budget (OMB)
Control Number 1250-0008. This information collection expires December
31, 2018. The other information collection requirements cited at 1.106
that apply to FAR clause 52.222-26, assigned OMB control numbers 1250-
0001 and 1250-0003, cover the general recordkeeping provisions of the
laws administered by OFCCP.
List of Subjects in 48 CFR Parts 1, 22, and 52
Government procurement.
Dated: July 31, 2018.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Interim Rule Adopted as Final Without Change
0
Accordingly, the interim rule amending 48 CFR parts 1, 22, and 52,
which was published in the Federal Register at 81 FR 67732 on September
30, 2016, is adopted as a final rule without change.
[FR Doc. 2018-17826 Filed 8-21-18; 8:45 am]
BILLING CODE 6820-EP-P