[Federal Register Volume 83, Number 187 (Wednesday, September 26, 2018)]
[Rules and Regulations]
[Pages 48537-48542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-20757]


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DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 10

RIN 1235-AA27


Minimum Wage for Contractors; Updating Regulations To Reflect 
Executive Order 13838

AGENCY: Wage and Hour Division, Department of Labor.

ACTION: Final rule.

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SUMMARY: In this final rule, the Department of Labor (the Department) 
implements Executive Order (E.O.) 13838, issued on May 25, 2018. E.O. 
13838 exempts certain contracts with the Federal Government from the 
requirements of E.O. 13658. In particular, the E.O. exempts contracts 
in connection with both seasonal recreational services and also 
seasonal recreational equipment rental when such services and equipment 
are offered to the general public on Federal lands. E.O. 13838 amends 
E.O. 13658 by inserting two sentences into that order and also directs 
executive departments and agencies to promptly implement the exemption. 
In order to carry out that directive, this rule inserts the same two 
sentences into the Department's regulations.

DATES: Effective September 26, 2018.

FOR FURTHER INFORMATION CONTACT: Melissa Smith, Director, Division of 
Regulations, Legislation, and Interpretation, Wage and Hour Division, 
U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, 
Washington, DC 20210, telephone: (202) 693-0406 (this is not a toll-
free number) or email: WHDPRAComments@dol.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    E.O. 13658, titled ``Establishing a Minimum Wage for Contractors,'' 
was issued on February 12, 2014. See 79 FR 9849. E.O. 13658 raised the 
hourly minimum wage for certain workers performing work on covered 
Federal contracts to $10.10 per hour in 2015, with annual inflation-
based adjustments thereafter as determined by the Secretary of Labor 
(Secretary). Id. As of January 1, 2018, the E.O. 13658 minimum wage 
rate is $10.35 per hour. As of January 1, 2019, the E.O. 13658 minimum 
wage will be $10.60 per hour. See 83 FR 44906.\1\
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    \1\ For tipped employees performing work on or in connection 
with covered contracts, E.O. 13658 established a different minimum 
wage, which is currently $7.25 per hour and will increase to $7.40 
per hour beginning January 1, 2019. Id.
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    E.O. 13658 and its implementing regulations established that this 
minimum wage requirement applies only to a ``new contract'' that 
qualifies as: (A) A procurement contract for construction covered under 
the Davis-Bacon Act (DBA); (B) a contract for services covered under 
the McNamara-O'Hara Service Contract Act (SCA); (C) a contract for 
concessions, including any concessions contract that the Department's 
regulations at 29 CFR 4.133(b) exclude from the SCA; or (D) a contract 
with the Federal Government in connection with Federal property or 
lands and related to offering services for Federal employees, their 
dependents, or the general public. Further, this minimum wage 
requirement applies only when the Fair Labor Standards Act (FLSA), the 
SCA, or the DBA governs the workers' wages. The October 7, 2014 final 
rule implementing E.O. 13658 applied to covered workers of contractors 
providing seasonal recreational services or seasonal recreational 
equipment rental on Federal lands under covered contracts.
    On May 25, 2018, President Donald J. Trump issued E.O. 13838, 
titled ``Exemption from Executive Order 13658 for Recreational Services 
on Federal Lands.'' See 83 FR 25341. Section 2 of E.O. 13838 amended 
E.O. 13658 to add language providing that the provisions of E.O. 13658 
do ``not apply to federal contracts or contract-like instruments'' 
entered into ``in connection with seasonal recreational services or 
seasonal recreational equipment rental.'' The E.O. additionally stated 
that seasonal recreational services include ``river running, hunting, 
fishing, horseback riding, camping, mountaineering activities, 
recreational ski services, and youth camps.'' E.O. 13838 further 
specified that this exemption does not apply to ``lodging and food 
services associated with seasonal recreational activities.''
    E.O. 13838 explained that because of the nature of the industry, 
seasonal recreational workers have ``irregular work schedules, a high 
incidence of overtime pay, and an unusually high turnover rate.'' The 
order further explained that implementing E.O. 13658, therefore, 
threatened to significantly increase the cost of seasonal recreational 
services on Federal lands, while limiting the hours that recreational-
service workers would be available to work. Thus, exempting these 
services from E.O. 13658 would help prevent job losses and ensure 
affordable guided tours for visitors to Federal lands.
    E.O. 13838 requires executive departments and agencies to 
``promptly

[[Page 48538]]

take appropriate action to implement this exemption and to ensure that 
[their] regulations and agency guidance are consistent'' with the E.O.

II. Basis and Purpose

A. Basis

    The Department is updating 29 CFR 10.4 to conform to the 
requirements of E.O. 13838. The President issued E.O. 13838 pursuant to 
his authority under the Constitution and the Federal Property and 
Administrative Services Act (Procurement Act). 83 FR 25341. The 
Procurement Act authorizes the President to ``prescribe policies and 
directives that [the President] considers necessary to carry out'' the 
statutory purposes of ensuring ``economical and efficient'' government 
procurement and administration of government property. 40 U.S.C. 101, 
121(a).
    The Secretary has delegated his authority to implement E.O. 13658, 
and hence E.O. 13838, to the Administrator of the WHD. See Secretary's 
Order 01-2014 (Dec. 19, 2014), 79 FR 77527 (published Dec. 24, 2014).

B. Purpose

    The Department is promulgating this final rule to implement E.O. 
13838's exemption for seasonal recreational services and equipment 
rental. This action makes no substantive changes to E.O. 13658 or its 
implementing regulations beyond what E.O. 13838 addresses, as E.O. 
13838 itself modified E.O. 13658 and directed Federal agencies and 
departments to implement that exemption. This action conforms E.O. 
13658's implementing regulations with the requirements of E.O. 13838. 
This will help ensure that parties contracting with the Federal 
Government are aware of the scope of coverage under E.O. 13658, as 
amended by E.O. 13838.

III. Discussion of the Final Rule

    To incorporate E.O. 13838 into existing regulations, the Department 
is amending 29 CFR 10.4 to add a new subsection (g), containing 
language identical to that which E.O. 13838 inserted into E.O. 13658. 
New 29 CFR 10.4(g) will reflect that the requirements of E.O. 13658 no 
longer apply to special-use permits or similar instruments issued by 
the U.S. Forest Service or other Federal agencies for seasonal 
recreational outfitter services, seasonal recreational guide services, 
and other seasonal recreational services, or to permits or instruments 
issued for seasonal recreational equipment rental.
    Consistent with the instruction in E.O. 13838, new 29 CFR 10.4(g) 
does not limit E.O. 13658's coverage of lodging and food services 
associated with seasonal recreational services, even when seasonal 
recreational services or seasonal recreational equipment rental are 
also provided under the same contract. Thus, when a contract contains 
both exempt and covered services--say, services for equipment rental 
and also services for food and lodging--E.O. 13658 will continue to 
apply to the covered services (i.e. the contractor minimum wage would 
apply to the positions in food service and lodging, but not to the 
positions in equipment rental). In such circumstances, the E.O. minimum 
wage contract-clause in appendix A of 29 CFR part 10 should therefore 
be included in all covered contracts and solicitations for such 
contracts, as described in 29 CFR 10.3. In these instances, the 
contracting agency, in consultation with the contractor and WHD as 
needed, shall identify which services are covered and which are exempt 
from the requirements of E.O. 13658.
    E.O. 13838 and new 29 CFR 10.4(g) do not affect the Department's 
implementation, administration, or enforcement of the Final Rule 
implementing E.O. 13658 with respect to any contracts other than those 
exempted in whole or in part from coverage under E.O. 13838 and 29 CFR 
10.4(g). They likewise do not affect contracting agencies' 
implementation and administration of E.O. 13658 and its implementing 
regulations with respect to any contract other than those specifically 
described in E.O. 13838.
    E.O. 13838 and new 29 CFR 10.4(g) also do not limit or otherwise 
modify a contractor's obligations under the FLSA, SCA, DBA, or any 
other law. For example, as reflected in 29 CFR 10.26(c), the 
requirements of E.O. 13658 do not limit or otherwise modify a 
contractor's payroll and recordkeeping obligations, if any, under the 
FLSA, SCA, or DBA, or their implementing regulations. E.O. 13838 and 29 
CFR 10.4(g) therefore do not exempt a contractor who is subject to the 
exemption, established by E.O. 13838 and by 29 CFR 10.4(g), from the 
requirements of the FLSA, SCA, DBA, or any other applicable law.

IV. Administrative Procedure Act

    The Department promulgates this final rule without notice or an 
opportunity for public comment because this action is limited to 
implementing E.O. 13838 by inserting into the Department's regulations 
the identical language that E.O. 13838 inserted into E.O. 13658. The 
Administrative Procedure Act (APA) provides that the notice-and-comment 
procedure does not apply when an agency for good cause finds that it is 
``impracticable, unnecessary, or contrary to the public interest.'' 5 
U.S.C. 553(b)(3)(B). Notice and comment are ``unnecessary,'' within the 
meaning of the APA, when changes to regulations ``merely restate'' the 
changes in the enabling authority that they implement.\2\ Gray Panthers 
Advocacy Cmt. v. Sullivan, 936 F.2d 1284, 1291 (D.C. Cir. 1991). In 
other words, the normal ``notice-and-comment procedures'' are not 
required when an agency ``reiterates'' an existing requirement by 
``reprinting'' that requirement in its own regulations. Komjathy v. 
Nat'l Transp. Safety Bd., 832 F.2d 1294, 1297 (D.C. Cir. 1987).
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    \2\ Although a separate provision dispenses with notice and 
comment for matters relating to public contracts, 5 U.S.C. 
553(a)(2), the Department generally does not rely on that provision, 
29 CFR 2.7.
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    Here, the Department for good cause finds that notice and comment 
are unnecessary because this rule updates the October 7, 2014, 
regulation to conform with E.O. 13838 by inserting into the regulation 
the identical language that E.O. 13838 inserted into E.O. 13658. Thus, 
the rule is merely restating the changes to the enabling authority--
E.O. 13658--that these regulations implement. E.O. 13838 requires 
agencies ``to implement [its] exemption and to ensure that all 
applicable regulations and agency guidance are consistent with [the 
E.O.],'' and the Department lacks the discretion to deviate from this 
directive. The Department has explained that in this circumstance, it 
``may not, in response to public comment, change or decline to 
implement [an] amendment'' to an executive order. 68 FR 56392 (Sept. 
30, 2003). Indeed, it has promulgated final rules without notice and 
comment in similar situations. See, e.g., Affirmative Action 
Obligations of Government Contractors, 68 FR 56392 (Sept. 30, 2003) 
(adding religious exemption into regulations by ``simply 
incorporat[ing]'' language from executive order in regulations). The 
Department accordingly finds that notice and comment are 
``unnecessary'' under the APA.
    Additionally, this rule is effective on the date of publication 
because the standard 30-day delay does not apply when a rule recognizes 
an exemption or relieves a restriction. 5 U.S.C. 553(d)(1). This final 
rule establishes no new burdens on the regulated community; rather it 
relaxes an existing restriction. The Department has explained that, 
under the APA, when a rule ``relieves

[[Page 48539]]

present restrictions, delay in its effective date is excused by 5 
U.S.C. 553(d)(1).'' 33 FR 8542 (June 11, 1968); see also 45 FR 35325 
(May 27, 1980). The Department has followed this interpretation on 
numerous occasions, having rules become effective upon issuance when 
they recognized an exemption to a generally applicable duty or relieved 
a regulated community of a restriction. See, e.g., Cranes and Derricks 
in Construction, 82 FR 51986 (Nov. 9, 2017); Employment of Homeworkers 
in Certain Industries, 49 FR 11792 (Mar. 27, 1984); Farm Labor 
Contractor Registration, 45 FR 25323 (May 27, 1980); Procedures for 
Consolidation of Existing Exclusively Recognized Units, 40 FR 50714 
(Oct. 31, 1975); Federal Extension Service Exemption, 33 FR 8542 (June 
11, 1968). Because this rule relieves the regulated community of a 
compliance duty, a 30-day delay is unnecessary and the rule is 
effective upon issuance.
    In short, the rule promulgated today adds into the Department's 
regulations the identical text that E.O. 13838 inserted into E.O. 
13658. This action recognizes an exemption to E.O. 13658's requirements 
for certain contracts. In this circumstance, issuance of the rule 
without notice and comment is proper, as is the rule's effectiveness 
upon publication.

V. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., 
and its attendant regulations, 5 CFR part 1320, require the Department 
to consider the agency's need for its information collections and their 
practical utility, as well as the impact of paperwork and other 
information collection burdens imposed on the public, and how to 
minimize those burdens. The PRA typically requires an agency to provide 
notice and seek public comments on any proposed collection of 
information contained in a rule. See 44 U.S.C. 3506(c)(2)(B); 5 CFR 
1320.8. This rule does not contain a collection of information subject 
to Office of Management and Budget (OMB) approval under the Paperwork 
Reduction Act.

VI. Analysis Conducted in Accordance With E.O. 12866, Regulatory 
Planning and Review, and E.O. 13563, Improved Regulation and Regulatory 
Review

A. Introduction

    Under E.O. 12866, OMB's Office of Information and Regulatory 
Affairs determines whether a regulatory action is significant and, 
therefore, subject to the requirements of the E.O. and OMB review.\3\ 
Section 3(f) of E.O. 12866 defines a ``significant regulatory action'' 
as an action that is likely to result in a rule that: (1) Has an annual 
effect on the economy of $100 million or more, or adversely affects in 
a material way a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities (also referred to as economically 
significant); (2) creates serious inconsistency or otherwise interferes 
with an action taken or planned by another agency; (3) materially 
alters the budgetary impacts of entitlement grants, user fees, or loan 
programs, or the rights and obligations of recipients thereof; or (4) 
raises novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the E.O.. 
Because the annual effect of this rule would be less than $100 million, 
this rule would not be economically significant under section 3(f) of 
E.O. 12866.
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    \3\ 58 FR 51735 (Sept. 30, 1993).
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    E.O. 13563 directs agencies to propose or adopt a regulation only 
upon a reasoned determination that its benefits justify its costs; that 
it is tailored to impose the least burden on society, consistent with 
achieving the regulatory objectives; and that, in choosing among 
alternative regulatory approaches, the agency has selected the 
approaches that maximize net benefits. E.O. 13563 recognizes that some 
benefits are difficult to quantify and provides that, where appropriate 
and permitted by law, agencies may consider and discuss qualitatively 
values that are difficult or impossible to quantify, including equity, 
human dignity, fairness, and distributive impacts.
    This rule is an E.O. 13771 deregulatory action.

B. Economic Analysis

    E.O. 13658 required an increase in the minimum wage to $10.10 for 
workers on covered Federal contracts where the solicitation for such 
contracts was issued (or the contract was awarded outside the 
solicitation process) on or after January 1, 2015. The E.O. applied 
only to new contracts. Each year, pursuant to E.O. 13658, the 
Department adjusts this minimum wage using the Consumer Price Index for 
Urban Wage Earners and Clerical Workers (CPI-W). As of January 2018, 
the minimum wage for non-tipped covered workers on covered Federal 
contracts was $10.35.
    E.O. 13838, issued on May 25, 2018, exempts from E.O. 13658 
contracts with the Federal Government in connection with seasonal 
recreational services or seasonal recreational equipment rental for the 
general public on Federal lands. E.O. 13838 directs executive 
departments and agencies to implement promptly the exemption. This 
economic analysis attempts to quantify the transfers and costs 
associated with the exemption from E.O. 13658 for recreational services 
on Federal lands, and it provides a qualitative discussion of benefits. 
Under E.O. 13838, exempted contractors no longer have to pay a minimum 
wage of $10.35; they can instead pay, at least, the higher of either 
the Federal minimum wage of $7.25 or any applicable state or local 
minimum wage. Transfers will occur when employers choose to adjust 
employees' wages below $10.35.

C. Transfer Calculation

    To calculate transfers, the Department first determined the number 
of potential workers that E.O. 13838 could affect. There is no single 
source that provides data on how many workers are employed on contracts 
in connection with seasonal recreational services on Federal lands, so 
the Department relied on a variety of data sources to estimate the 
number of affected workers. The Department assumes that most impacted 
workers will fall under two Standard Occupational Classification (SOC) 
codes: SOC 39-7010 Tour and Travel Guides, and SOC 39-9032 Recreation 
Workers. The Department recognizes that impacted workers may be found 
in additional occupations, but this analysis is limited to these two 
occupations because the Department lacks more substantive data on other 
workers. The Department also recognizes that E.O. 13658 and E.O. 13838 
do not govern all workers in these two occupations, but limiting the 
number of impacted workers to Federal contract workers in those 
occupations will help narrow the analysis to the impacted population. 
According to data from the Bureau of Labor Statistics (BLS) 
Occupational Employment Statistics (OES) program, as of May 2017, the 
economy had 46,140 workers employed as Tour and Travel Guides and had 
352,350 workers employed as Recreation Workers--totaling 398,490 
workers employed in those two occupations.\4\ These two occupations 
together represent approximately 0.28 percent of employment in the 
United States.\5\
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    \4\ BLS Occupational Employment Statistics, https://www.bls.gov/oes/2016/may/distribution.htm.
    \5\ May 2017 employment in all occupations was 142,549,250. BLS 
OES, https://www.bls.gov/oes/tables.htm.
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    To estimate the total number of impacted workers, the Department 
also

[[Page 48540]]

needed to determine the number of workers carrying out Federal 
contracts. The Department has previously estimated that annually, 
1,727,000 workers carry out Federal contracts in the four categories 
covered by E.O. 13658.\6\ This figure is an approximation only. The 
Department multiplied 0.28 percent (the occupational share) by the 
number of workers on covered Federal contracts to estimate the number 
of Federal-contract workers who are employed in connection with 
recreational services.\7\ The Department thus estimates that there are 
4,828 workers (= 1,727,000 x 0.28%) employed on Federal contracts as 
outfitters, guides, and other recreational-service workers. Because 
about 20 percent of Federal contracts are initiated each year and 
because E.O. 13658 has been in effect for fewer than four years, the 
Department estimates that 3,862 (= 4,828 x 80%) workers will be 
affected by this rule.
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    \6\ For a full discussion of this methodology and estimate, see 
https://www.federalregister.gov/documents/2016/09/30/2016-22964/establishing-paid-sick-leave-for-federal-contractors.
    \7\ For purposes of this analysis, the Department assumes that 
the occupational distribution of workers on Federal contracts is the 
same as in the overall economy. In reality, the occupational 
distribution may differ, so this number may be imprecise.
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    This economic analysis attempts to calculate the total potential 
transfers from employees to employers when employers no longer have to 
pay the E.O. 13658 minimum wage, which is currently $10.35. The 
Department assumes that employers with contracts on Federal lands who 
were paying $10.35 before E.O. 13838 will now choose to pay the Federal 
minimum wage of $7.25.\8\ The Department assumes that employers who pay 
workers more than the minimum wage of $10.35 will continue paying those 
wages and therefore will not be affected. The analysis assumes that 
only those making $10.35 per hour will be affected. Because there is no 
easily accessible data on the exact wages of seasonal recreational 
employees on Federal contracts, the Department used the distribution of 
employment within specific wage ranges from BLS Occupational Employment 
Statistics to estimate the share of workers earning $10.35 or less.\9\ 
The Department therefore assumes that everyone making $10.35 or less is 
actually earning the minimum of $10.35. Using a linear approximation of 
the employment share earning $10.35 within the weighted wage ranges for 
Tour and Travel Guides and Recreation Workers occupations, the 
Department estimates that 30.83 percent of workers in the Tour and 
Travel Guides and Recreation Workers occupations earn $10.35 or less. 
Applying this share to the previous calculation of workers employed on 
Federal contracts as outfitters, guides, and other recreational-service 
workers, the Department estimates that 1,191 of these workers earn 
$10.35 per hour.
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    \8\ This assumption likely significantly overstates the number 
of employers who, if currently paying the applicable minimum wage, 
would lower wages all the way to a new minimum. But the Department 
lacks data on which employers would pay more than $7.25 per hour if 
not obligated to pay $10.35.
    \9\ BLS OES, May 2017 National Occupational Employment and Wage 
Estimates United States, May 2017. https://www.bls.gov/oes/current/oes_nat.htm.
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    The total value of these transfers is estimated to be the 
difference between $10.35 and the minimum wage for each of these 
workers. Because data are not available to distinguish these workers by 
state, the Department calculated the difference between $10.35 and the 
Federal minimum wage of $7.25. This transfer calculation is therefore 
likely to be an overestimation because some workers will earn their 
applicable state minimum wage (which is higher than $7.25) and because, 
in many other instances, contractors with contracts that are now exempt 
from E.O. 13658 will choose to pay these workers more than the 
applicable Federal or state minimum wage (though less than $10.35). 
Multiplying the $3.10 difference in wages by the 1,191 affected workers 
for 1,040 hours per year, the Department estimates that total transfers 
will be $3,839,784 at discount rates of both 3 percent and 7 
percent.\10\
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    \10\ Full-time, year-round workers usually work around 2,080 
hours. Because most affected workers are seasonal, the Department 
used half of this number as an estimate for usual hours-worked in a 
year.
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D. Costs

    The costs associated with this rulemaking are regulatory 
familiarization costs and any costs that businesses will incur to 
change their existing payroll systems. Regulatory familiarization costs 
represent direct costs on businesses associated with reviewing the new 
regulation. In this rule, regulatory familiarization costs are a 
function of the number of contractor firms, and only firms that have 
contracts with the Federal Government in connection with seasonal 
recreational services will incur costs. For this activity, the 
Department estimates that contractor firms will spend 15 minutes to 
determine whether the exemption applies to them, to evaluate and adjust 
their pay rates, and to modify their payroll systems. For 
familiarization cost analysis, the Department assumes that a 
Compensation, Benefits, and Job Analysis Specialist (SOC 13-1141) (or a 
staff member in a similar position) with a median wage of $30.14 per 
hour in 2017 will review the rule.\11\ Assuming benefits are paid at a 
rate of 46 percent of the base wage, and overhead costs are 17 percent 
of the base wage, the reviewer's effective hourly rate is $49.13 (= 
$30.14 + ($30.14 x 46%) + ($30.14 x 17%)); thus, the average cost per 
establishment is $12.28 (=$49.13 x .25 hour of review and adjustment 
time). According to the 2016 Final Rule to implement E.O. 13706, there 
are approximately 489,419 potentially affected contractor firms.\12\ In 
order to estimate the share of these contractors involved in seasonal 
recreational activities, the Department used the occupational 
employment share for Travel and Tour Guides and Recreation Workers as a 
proxy for contractor firm industry share. Applying the 0.28 percent 
share to the 489,419 contractor firms yields 1,368 contractor firms in 
industries related to seasonal recreational activities. The Department 
calculated the total estimated cost as $16,804 (=0.25 hour x $49.13/
hour x 1,368 contractor firms) in the first year. This amounts to a 10-
year annualized cost of $1,913 at a discount rate of 3 percent and 
$2,236 at a discount rate of 7 percent.
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    \11\ Compensation/benefits specialist ensures company compliance 
with Federal and state laws, including reporting requirements; 
evaluates job positions, determining classification, exempt or non-
exempt status, and salary; plans, develops, evaluates, improves, and 
communicates methods and techniques for selecting, promoting, 
compensating, evaluating, and training workers. 13-1141 
Compensation, Benefits, and Job Analysis Specialists, https://www.bls.gov/oes/current/oes131141.htm (last visited on June 20, 
2018).
    \12\ This estimate includes firms registered in the General 
Services Administration's (GSA) System for Award Management (SAM) 
and from additional data sources. For a full discussion of this 
methodology and estimate, see https://www.federalregister.gov/documents/2016/09/30/2016-22964/establishing-paid-sick-leave-for-federal-contractors.
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E. Qualitative Discussion of Benefits

    Lowering the cost of business for outfitter providers could 
incentivize small outfitters to enter the market. Likewise, it could 
also incentivize existing outfitters to hire more guides and to 
increase the hours of current employees. What all this translates into 
is more affordable guided tours and recreational services for visitors 
to Federal lands. And ultimately, greater access to outfitter services 
affords ordinary Americans a greater opportunity to experience ``the 
great beauty of America's outdoors.'' E.O. 13838.

[[Page 48541]]

F. Summary of Transfers and Costs

    Table 1 provides a summary of the quantified transfers and costs 
for this rule.

                              Table 1--Summary of Transfers and Costs Calculations
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                                               Potential Transfers
----------------------------------------------------------------------------------------------------------------
First Year Transfers..........................................                     $3,839,784
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                                                                   Discount Rate = 3%      Discount Rate = 7%.
                                                               -------------------------------------------------
10-Year Annualized Transfers..................................               $3,839,784               $3,839,784
----------------------------------------------------------------------------------------------------------------
                                 Regulatory Familiarization and Adjustment Costs
----------------------------------------------------------------------------------------------------------------
First Year Costs..............................................                       $16,804
----------------------------------------------------------------------------------------------------------------
                                                                   Discount Rate = 3%      Discount Rate = 7%.
                                                               -------------------------------------------------
10-Year Annualized Transfers..................................                   $1,913                   $2,236
----------------------------------------------------------------------------------------------------------------

G. Regulatory Flexibility Analysis

    In 2014, the Small Business Association's Office of Advocacy 
provided comments on the regulations implementing E.O. 13658 
(Establishing a Minimum Wage for Federal Contractors). The comment 
letter urged the Department to adopt a regulatory alternative that 
exempts recreational companies and provides regulatory cost savings for 
small businesses. In 2018, small business stakeholders also recommended 
this rule for regulatory reform under E.O. 13771. Per the Regulatory 
Flexibility Act, 5 U.S.C. 601 et seq. (as amended), the Department 
examined the regulatory requirements of the rule to determine whether 
they would have a significant economic impact on a substantial number 
of small entities. As indicated in Section B, Economic Analysis, the 
annualized burden is estimated to be $2,236 at a discount rate of 7 
percent; therefore, the annualized cost per firm is estimated to be 
$1.63 (= $2,236 / 1,368 firms). See Table 2.

                    Table 2--Annualized Cost per Firm
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------------------------------------------------------------------------
Estimated number of firms....................................      1,368
Compensation, Benefits, and Job Analysis Specialists fully        $49.13
 loaded hourly compensation..................................
Time to review rule and make payroll adjustments.............       * 15
Total cost...................................................    $16,804
Annualized with 7% Discounting...............................     $2,236
Annualized cost per firm.....................................      $1.63
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* Minutes.

    Table 3 provides the annualized cost per firm as a percentage of 
revenue by firm size in the arts, entertainment, and recreation 
industry. As the table shows, the annualized burden as a percentage of 
the smallest employer's revenue would be far less than 1 percent. 
Accordingly, the Department certifies that the rule would not have a 
significant economic impact on a substantial number of small entities.

                Table 3--Annual Cost per Firm in the Arts, Entertainment, and Recreation Industry
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                                                                                                         Annual
                                                                                                        cost per
                                        Number of     Total     Annual                      Average     firm as
                                          firms     number of  cost per  Annual receipts    receipts    percent
                                                    employees    firm                       per firm       of
                                                                                                        receipts
----------------------------------------------------------------------------------------------------------------
                                  Arts, Entertainment, and Recreation Industry
                            Small Business Size Standard: $7.5 million-$38.5 million
----------------------------------------------------------------------------------------------------------------
Firms with sales/receipts/revenue          29,796      43,003     $1.63   $1,434,271,000      $48,136      0.003
 below $100,000.......................
Firms with sales/receipts/revenue of       46,205     177,421      1.63   11,476,438,000      248,381      0.001
 $100,000 to $499,999.................
Firms with sales/receipts/revenue of       16,220     161,111      1.63   11,394,483,000      702,496      0.000
 $500,000 to $999,999.................
Firms with sales/receipts/revenue of       12,675     260,098      1.63   19,329,326,000    1,524,996      0.000
 $1,000,000 to $2,499,999.............
Firms with sales/receipts/revenue of        4,776     205,728      1.63   16,246,680,000    3,401,734      0.000
 $2,500,000 to $4,999,999.............
Firms with sales/receipts/revenue of        1,800     126,508      1.63   10,478,303,000    5,821,279      0.000
 $5,000,000 to $7,499,999.............
Firms with sales/receipts/revenue of          854      78,319      1.63    6,855,951,000    8,028,046      0.000
 $7,500,000 to $9,999,999.............
Firms with sales/receipts/revenue of          746      94,755      1.63    8,148,731,000   10,923,232      0.000
 $10,000,000 to $14,999,999...........
Firms with sales/receipts/revenue of          373      58,407      1.63    5,452,457,000   14,617,847      0.000
 $15,000,000 to $19,999,999...........
Firms with sales/receipts/revenue of          239      46,528      1.63    4,493,765,000   18,802,364      0.000
 $20,000,000 to $24,999,999...........
Firms with sales/receipts/revenue of          169      36,443      1.63    3,701,048,000   21,899,692      0.000
 $25,000,000 to $29,999,999...........
Firms with sales/receipts/revenue of          126      34,942      1.63    3,075,728,000   24,410,540      0.000
 $30,000,000 to $34,999,999...........
Firms with sales/receipts/revenue of           83      22,145      1.63    2,382,282,000   28,702,193      0.000
 $35,000,000 to $39,999,999...........
----------------------------------------------------------------------------------------------------------------

H. Unfunded Mandates Reform Act

    This rule has been reviewed in accordance with the Unfunded 
Mandates Reform Act of 1995 (UMRA). 2 U.S.C. 1501 et seq. For the 
purposes of the UMRA, this rule does not impose any Federal mandate 
that may result in increased expenditures by State, local, or Tribal 
governments, or increased expenditures by the private sector, of more 
than $100 million in any year.

[[Page 48542]]

I. Executive Order 13132 (Federalism)

    The Department has reviewed this rule in accordance with the 
Executive Order on Federalism (Executive Order 13132, 64 FR 43255, 
August 10, 1999). This rule does not have federalism implications as 
outlined in E.O. 13132. The rule does not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.

J. Executive Order 13175, Indian Tribal Governments

    The Department has reviewed this rule under the terms of Executive 
Order 13175 (65 FR 67249, November 6, 2000) and determined it does not 
have ``tribal implications.'' The rule does not have ``substantial 
direct effects on one or more Indian tribes, on the relationship 
between the Federal Government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
Government and Indian tribes.'' As a result, no Tribal summary impact 
statement has been prepared.

VII. Regulatory Revision

    For the reasons set forth in the preamble, the Department of Labor 
amends part 10 of title 29 of the Code of Federal Regulations as 
follows:

PART 10--ESTABLISHING A MINIMUM WAGE FOR CONTRACTORS

0
 1. The authority citation for part 10 is revised to read as follows:

    Authority: 5 U.S.C. 301; section 2, E.O. 13838, 83 FR 25341; 
section 4, E.O. 13658, 79 FR 9851; Secretary's Order 01-2014, 79 FR 
77527.

0
 2. In Sec.  10.4, add paragraph (g) to read as follows:


Sec.  10.4   Exclusions.

* * * * *
    (g) Contracts in connection with seasonal recreational services and 
seasonal recreational equipment rental offered for public use on 
Federal lands. This part shall not apply to contracts or contract-like 
instruments entered into with the Federal Government in connection with 
seasonal recreational services or seasonal recreational equipment 
rental for the general public on Federal lands, but this exemption 
shall not apply to lodging and food services associated with seasonal 
recreational services. Seasonal recreational services include river 
running, hunting, fishing, horseback riding, camping, mountaineering 
activities, recreational ski services, and youth camps.

    Signed in Washington, DC, this 18th day of September.
Bryan L. Jarrett,
Acting Administrator, Wage and Hour Division.
[FR Doc. 2018-20757 Filed 9-25-18; 8:45 am]
BILLING CODE 4510-27-P