[Federal Register Volume 86, Number 194 (Tuesday, October 12, 2021)]
[Proposed Rules]
[Pages 56679-56686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22118]


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COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED

41 CFR Part 51-4

RIN 3037-AA16


Prohibition on the Payment of Subminimum Wages Under 14(c) 
Certificates as a Qualification for Participation as a Nonprofit Agency 
Under the Javits Wagner O'Day Program

AGENCY: Committee for Purchase From People Who Are Blind or Severely 
Disabled.

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: The Commission proposes to add a new qualification 
requirement. The requirement provides that for each nonprofit agency 
(``NPA'') that seeks to qualify or maintain its qualifications under 
the AbilityOne Program, the NPA must certify that it will not pay 
subminimum wages using special wage certificates authorized under 
section 14(c) of the Fair Labor Standards Act of 1938 to employees on 
all contracts or subcontracts awarded, extended (other than through the 
exercise of an option) or renewed under the program after the effective 
date of the final rule.

DATES: The Commission will consider all comments submitted 
electronically on or before November 12, 2021.

ADDRESSES: You may submit comments, identified by RIN 3037-AA16, only 
by the following method: Internet--Federal eRulemaking Portal. 
Electronic comments may be submitted through https://www.regulations.gov. To locate the proposed rule, use RIN 3037-AA16 or 
key words such as ``Section 14(c),'' ``Committee for Purchase,'' or 
``Subminimum Wage'' to search documents accepting comments. Follow the 
instructions for submitting comments. Please be advised that comments 
received will be posted without change to https://www.regulations.gov, 
including any personal information provided. Accessible Format: On 
request to the program contact person listed under FOR FURTHER 
INFORMATION CONTACT, individuals with disabilities can obtain this 
document in an alternative accessible format.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. You may also access documents 
of Commission published in the Federal Register by using the article 
search feature at: www.federalregister.gov.

FOR FURTHER INFORMATION CONTACT: Shelly Hammond, Director of 
Contracting and Policy, by telephone (703) 603-2100 or by email at 
[email protected].
    During and after the comment period, you may inspect all public 
comments about the proposed priority and requirements by accessing 
Regulations.gov.
    Assistance to Individuals with Disabilities in Reviewing the 
Rulemaking Record: Upon request, we will provide an appropriate 
accommodation to an individual with a disability who needs assistance 
to review the comments for the proposed rule. If you want to contact us 
to request assistance, please contact the person listed in this 
section.

[[Page 56680]]


SUPPLEMENTARY INFORMATION:

I. The AbilityOne Program

    The Javits-Wagner-O'Day Act (``JWOD'') Act, see 41 U.S.C. 8501-
8506, leverages the purchasing power of the Federal Government to 
create employment opportunities for individuals who are blind or have 
significant disabilities through a program called AbilityOne. Under 
JWOD, the U.S. AbilityOne Commission, an independent Federal agency, 
maintains a list of products and services offered by NPAs employing 
workers who are blind or have significant disabilities, known as the 
AbilityOne Procurement List. See 41 CFR 51-1.3. Federal Government 
entities procuring products or services on the Procurement List then 
purchase them from the sources identified by the Commission. NPAs are 
subject to qualification standards during their initial qualification 
for the program and are subject to qualification standards to maintain 
their participation in the program. See 41 CFR 51-4.2 (initial 
qualification) and 41 CFR 51-4.3 (maintaining qualifications).
    The AbilityOne Commission consists of 15 members appointed by the 
President. Eleven Commission members represent Federal agencies, 
including a member each from the Departments of Defense, Army, Navy, 
and Air Force, Agriculture, Education, Commerce, Veterans Affairs, 
Justice, and Labor, and the General Services Administration. See 41 
U.S.C. 8502(b)(1). The four non-Federal Government members must include 
one each knowledgeable about employment issues regarding individuals 
who are blind and individuals with significant disabilities, and one 
each representing employees from NPAs who employ individuals who are 
blind and individuals with significant disabilities providing services 
or goods under an NPA that would be qualified under the program. See 41 
U.S.C. 8502(b)(2).
    As outlined in the JWOD Act, the Commission has five primary roles 
under the program. First, the Commission decides on the addition or 
removal of products or services from the AbilityOne Procurement List. 
See 41 U.S.C. 8503(a). Second, the Commission sets the fair market 
price the Federal Government will pay the NPAs for the products or 
services. See 41 U.S.C. 8503(b). Third, the Commission is responsible 
for designating nonprofit agencies to be central nonprofit agencies 
(CNAs) to facilitate the distribution of the orders for products and 
services among the participating NPAs. See 41 U.S.C. 8503(c). Fourth, 
the Commission is responsible for promulgating regulations ``on other 
matters as necessary'' to carry out the law. See 41 U.S.C. 8503(d)(1). 
Finally, the Commission is responsible for engaging in a ``continuing 
study and evaluation of its activities'' to ensure the effective 
administration of the law. See 41 U.S.C. 8503(e).
    The Commission has designated National Industries for the Blind 
(``NIB''), whose members primarily employ individuals who are blind or 
have vision impairments; and SourceAmerica, whose members consist of 
more than 400 nonprofit organizations that typically employ workers 
with more significant disabilities, as CNAs for the AbilityOne Program. 
The CNAs facilitate the distribution of orders, provide information as 
needed by the Commission, and otherwise assist the Commission in 
implementing its regulations. See 41 CFR 51-1.3 (definition of CNA); 
see also 41 CFR 51-3.2 (describing numerous responsibilities of the 
CNAs).
    The Commission's regulations at 41 CFR 51-4.2 identify the initial 
qualification requirements for NPAs seeking to participate in the 
AbilityOne Program. For example, to be initially qualified, a NPA must 
submit documents demonstrating that it is incorporated and has bylaws 
worded to the effect that no part of the net income of the NPA may 
inure to the benefit of any shareholder or other individual. 41 CFR 51-
4.2(a)(1)(iii)(A). The Commission then reviews the documents submitted 
and, if acceptable, notifies the NPA and its CNA. 41 CFR 51-4.2(b).
    To maintain qualification, a NPA must annually certify that it 
complies with the definition of a qualified NPA as specified in 41 CFR 
51-1.3 as well as several additional requirements identified in 41 CFR 
51-4.3(b) and (c). The Commission receives Annual Representations and 
Certifications from every AbilityOne participating NPA, through the 
CNAs, and reviews them to determine whether the NPAs are maintaining 
qualification. 41 CFR 51-4.3(a). The Commission ensures that the NPA 
has submitted its Annual Representation and Certification and that it 
has complied with all the requirements on those forms. 41 CFR 51-4.2(b) 
and 51-4.3(a). One of the regulatory criteria that the Commission must 
consider in determining the suitability of a proposed addition to the 
Procurement List is the qualification of the nonprofit agency to 
furnish the product or service. 41 CFR 51-2.4(a)(2).

II. Section 14(c) of the Fair Labor Standards Act of 1938

    The Fair Labor Standards Act of 1938 (``FLSA'') provides for the 
employment of certain individuals at wage rates below the generally 
applicable statutory minimum. 29 U.S.C. 201, et seq. Section 14(c) of 
the FLSA provides that ``[t]he Administrator [of the Wage and Hour 
Division], to the extent necessary in order to prevent curtailment of 
opportunities for employment, shall by regulation or by orders provide 
for . . . (2) the employment of individuals whose earning capacity is 
impaired by physical or mental deficiency or injury, under special 
certificates issued by the Administrator, at such wages lower than the 
minimum wage.'' See 29 U.S.C. 214(c).
    If an employer wishes to pay wages that are below the Federal 
minimum wage rate to workers with disabilities, the employer first must 
obtain an authorizing certificate from the Secretary of Labor 
(``Secretary''). See 29 U.S.C. 214(c)(1). The Secretary may issue 
certificates authorizing employers to pay workers with disabilities 
subminimum wage rates which are commensurate with those paid to workers 
not disabled for the work to be performed employed in the vicinity for 
essentially the same type, quality, and quantity of work ``to the 
extent necessary to prevent curtailment of opportunities for 
employment'' for such workers with disabilities. 29 U.S.C. 
214(b)(1)(A). The employee's subminimum wage is based on their 
productivity (no matter how limited) compared to the norm established 
for workers without disabilities through the use of verifiable work 
measurement or the productivity of experienced workers who do not have 
disabilities employed in the vicinity on comparable work. See 29 CFR 
525.9(a)(3). For example, if the productivity or output of a worker 
with a disability is measured to be 60% as much as the productivity or 
output of an experienced worker who does not have a disability 
performing comparable work, the subminimum wage for the worker with a 
disability would be at least 60% of the prevailing wage (the wage rate 
paid to experienced workers in the vicinity who do not have 
disabilities performing the same or similar work). See 29 CFR 525.3(i).
    A subminimum wage is always less than the applicable minimum wage 
otherwise required by section 6(a) of the FLSA, or where applicable, 
the prevailing wage required by the McNamara-O'Hara Service Contract 
Act (``SCA'').

[[Page 56681]]

    The SCA applies to service contracts entered into between 
individuals or companies and the Federal Government, including the 
District of Columbia. The SCA requires contractors and subcontractors 
performing services on prime contracts in excess of $2,500 to pay 
service employees in various classes no less than the wage rates and 
fringe benefits found prevailing in the locality. 29 CFR 4.4(a)(1). A 
``service employee'' (A) means an individual engaged in the performance 
of a contract made by the Federal Government and not exempted under 41 
U.S.C. 6702(b), whether negotiated or advertised, the principal purpose 
of which is to furnish services in the United States; (B) includes an 
individual without regard to any contractual relationship alleged to 
exist between the individual and a contractor or subcontractor; but (C) 
does not include an individual employed in a bona fide executive, 
administrative, or professional capacity, as those terms are defined in 
29 CFR part 541. See 41 U.S.C. 6701(3). A subminimum wage rate is 
determined by comparing the productivity of the worker with a 
disability against the productivity of an experienced worker without a 
disability for the work being performed--the ``standard.''
    The SCA governs most Federal contracts for services. Under the SCA, 
the prevailing wage is the wage listed on a wage determination by the 
U.S. Department of Labor for the classification of work being 
performed. See 29 CFR 4.51. If a Federal contract is covered by the 
SCA, all service employees (including those paid pursuant to section 
14(c)) must receive the full fringe benefits as listed on the wage 
determination. See 29 CFR 4.3. For example, if a worker with a 
disability is performing work on an SCA-covered contract in a job 
classification with a wage determination rate of $22.00 per hour and 
the worker's productivity is measured to be 75%, the worker must be 
paid at least $16.50 per hour under a section 14(c) certificate. The 
worker would also be due the full fringe benefit amount.
    The recently issued Executive Order 14026 ``Increasing the Minimum 
Wage for Federal Contractors,'' 86 FR 22835 (April 30, 2021), calls for 
an increase in the minimum wage for workers of Federal contractors and 
subcontractors working on or in connection with covered Federal 
contracts, including ``any new contract; contract-like instrument; new 
solicitation; extension or renewal of an existing contract or contract-
like instrument; and exercise of an option on an existing contract or 
contract-like instrument.'' \1\ The Executive Order 14026 raises the 
minimum wage on covered Federal contracts to $15.00 effective January 
30, 2022. Executive Order 14026, sections 1 and 2(i). Executive Order 
14026 built on Executive Order 13658, ``Establishing a Minimum Wage for 
Contractors,'' that raised the minimum wage to $10.10 for all workers 
on Federal construction and service contracts on February 12, 2014. See 
79 FR 9849 (Feb. 20, 2014); Executive Order 13658, section 1 and 
2(a)(i). Significantly, both of these Executive orders direct that 
workers employed under section 14(c) certificates performing work on or 
in connection with covered contracts must be paid at least the full 
applicable Executive order minimum wage rate.
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    \1\ Section 8a of Executive Order 14026 provides that the order 
applies to (i)(A) a procurement contract or contract-like instrument 
for services or construction; (B) a contract or contract-like 
instrument for services covered by the Service Contract Act; (C) a 
contract or contract-like instrument for concessions, including any 
concessions contract excluded by Department of Labor regulations at 
29 CFR 4.133(b); or (D) a contract or contract-like instrument 
entered into 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; and (ii) the 
wages of workers under such contract or contract-like instrument are 
governed by the Fair Labor Standards Act, the Service Contract Act, 
or the Davis-Bacon Act.
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III. Evolution of Policies Regarding Employment of People With 
Disabilities

A. Historical Background on the FLSA and the Javits-Wagner-O'Day Act

    On June 25, 1938, President Roosevelt signed the FLSA into law. As 
part of the legislation, section 14(c) formally addressed the 
employment of individuals with disabilities. See 29 U.S.C. 214 (c).\2\ 
The law created the authority for the U.S. Department of Labor to issue 
special certificates that permitted employers to pay less than the 
minimum wage in order to provide for the employment of individuals 
``whose earning capacity is impaired by physical or mental deficiency 
or injury,'' See 29 U.S.C. 214(c). Since 1938, section 14(c)'s core 
premise that the productivity of an individual with a disability to 
perform work can be ``impaired'' by their disability has legally 
allowed employees with disabilities to be paid less than the applicable 
minimum wage where the individual's employer has obtained the 
certificate's authority to do so. Both Senator Robert F. Wagner and 
Congresswoman Caroline O'Day, the drafters of the 1938 legislation that 
authorized what is now the AbilityOne Program, the Wagner-O'Day Act, 
likewise expressed their intent to promote the employment of 
individuals who were blind by allowing NPAs to sell manufactured goods, 
such as mops and brooms, to the Federal Government for a fair market 
price.\3\ During the more than 80-year history of the AbilityOne 
Program, Congress has substantially amended the JWOD Act only once. In 
1971, Congress, led by Senator Jacob Javits, expanded the statute 
through amendments that added services provided by organizations that 
employ individuals with significant disabilities to the Procurement 
List, see S. Rep. No. 92-41, at 1 (1971), while maintaining an ongoing 
preference for goods provided by blind employees. See Javits-Wagner-
O'Day Act of 1971, Public Law 92-28, sec. 6, 85 Stat. 77, 81, 82 
(1971).
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    \2\ The legislative origins of section 14(c) are found in the 
National Industrial Recovery Act of 1933 (``NIRA''). While 
ultimately declared unconstitutional by the Supreme Court in 1935 in 
Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), the 
NIRA contained a productivity-based subminimum wage specific to 
individuals with disabilities. See William G. Whittaker, Treatment 
of Workers with Disabilities Under Section 14(c) of the Fair Labor 
Standards Act, CORNELL UNIVERSITY ILR SCHOOL, Summary (Feb. 9, 
2005), available at https://ecommons.cornell.edu/bitstream/handle/1813/78685/CRS_February_2005_Treatment_of_Workers_with_Disabilities.pdf?sequence=1&isAllowed=y.
    \3\ Melia Preedy, Subminimum or Subpar? A Note in Favor of 
Repealing the Fair Labor Standards Act's Subminimum Wage Program, 
SEATTLE UNIVERSITY LAW REVIEW, 37 Seattle U. L. Rev. 1097, 1104 
(2014).
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    Congress amended the FLSA in 1986 to provide, among other changes, 
that subminimum wages paid to a worker with a disability under a 
certificate must be based on the individual's productivity commensurate 
with wages paid to workers without disabilities employed in the 
vicinity for essentially the same type, quality, and quantity of 
work.\4\ See Public Law 99-486, 100 Stat. 1229 (October 16, 1986).
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    \4\ This section does not address statutory changes to the FLSA 
between 1938 and 1986 and is intended to provide a brief overview 
highlighting the most significant changes to section 14(c) and the 
JWOD Act.
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B. Overview of Changes in Modern Disability Law

    Two models of disability, often called the charity and medical 
models, emerged during the first half of the 20th century. The medical 
model promoted the idea that disability was something to be ``cured,'' 
and this model focused on the negative impact of an individual's 
disability rather than on the person's skills, talents, and abilities. 
Similarly, the charity model reinforced the idea that individuals with 
disabilities were

[[Page 56682]]

``tragic'' and should be ``pitied.'' \5\ The original 1938 Wagner-
O'Day-Act is a product of this era.
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    \5\ Vaughn, Jacqueline. 2003. Disabled Rights: American Policy 
and the Fight for Equality. Washington, DC, Georgetown University 
Press. See also Richard K. Scotch, From Good Will to Civil Rights: 
Transforming Federal Disability Policy 20 (1984).
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    The marginalization of individuals with disabilities continued 
until World War I when veterans with disabilities demanded that the 
U.S. Government provide rehabilitation in exchange for their service to 
the nation. During the decade of the 1910s, Congress passed a series of 
laws to support soldiers who now had disabilities as a result of their 
service in World War I. For example, the Smith-Hughes Act made Federal 
funds available to states on a matching basis for vocational education 
programs in 1917.\6\ Shortly thereafter, the Soldier's Rehabilitation 
Act created a vocational rehabilitation program for World War I 
veterans with disabilities.\7\ Finally, in 1920, the landmark Smith-
Fess Act (also known as the Civilian Vocational Rehabilitation Act) 
established the Vocational Rehabilitation program for American citizens 
with physical disabilities.\8\ The law, however, did not provide 
services for individuals with developmental disabilities until the 
Rehabilitation Act Amendments of 1954.\9\
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    \6\ 20 U.S.C. 11.
    \7\ 50 U.S.C. App. 1.
    \8\ Smith-Fess Act of 1920 (Pub. L. 66-236).
    \9\ 29 U.S.C. 4.
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    Despite the passage of the Wagner-O'Day Act, most individuals with 
disabilities still did not have access to public transportation, 
telephones, bathrooms, and stores. Further, worksites with stairs 
offered no access for individuals with physical disabilities, and other 
barriers often kept talented and eligible individuals with disabilities 
from obtaining and maintaining jobs with private sector employers.\10\
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    \10\ Vaughn, Jacqueline. 2003. Disabled Rights: American Policy 
and the Fight for Equality. Washington, DC, Georgetown University 
Press.
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    With the civil rights movement in the 1960s, disability advocates 
joined forces with other minority groups such as people of color, 
women, and other marginalized groups to demand equal treatment, equal 
access, and equal opportunity for individuals with disabilities. In 
1973, when Congress passed the landmark Rehabilitation Act of 1973 
(``Rehabilitation Act''), it included three non-discrimination 
sections. Sections 501 established a non-discrimination and affirmative 
action requirement for employees with disabilities within the Federal 
Government; section 503 established a non-discrimination and 
affirmative action requirement for employees with disabilities by 
Federal contractors and section 504 established a non-discrimination 
requirement for individuals with disabilities by any program or 
activity that receives Federal financial assistance. See 29 U.S.C. 791, 
793, and 794.
    In the 1980s, disability activists began to lobby for an expansion 
of disability rights so that entities that were not receiving Federal 
funds would also be prohibited from discriminating against individuals 
with disabilities. President George H.W. Bush signed the Americans with 
Disabilities Act (``ADA'') into law in 1990. This sweeping law 
prohibited discrimination because of disability in employment, services 
rendered by state and local governments, places of public 
accommodation, transportation, and telecommunications services. See 42 
U.S.C. 12101-12213. Under the ADA, Congress mandated businesses to 
provide reasonable accommodations to individuals with disabilities 
(such as restructuring jobs or modifying work equipment), and that 
public services such as public transportation systems become more fully 
accessible to individuals with disabilities. Further, Congress found 
that ``segregation'' of individuals with disabilities was a ``for[m] of 
discrimination'' on the basis of disability. See 42 U.S.C. 12101(a)(2). 
Segregation, Congress recognized, is ``a serious and pervasive social 
problem'' that diminished the rights of individuals with disabilities 
``to fully participate in all aspects of society.'' Id. at sec. 12101. 
With this piece of legislation, the U.S. government finally broke the 
old medical and charity models by identifying and championing the full 
participation, inclusion, and integration of individuals with 
disabilities in all levels of society.
    Congress passed the ADA Amendments Act in 2008. The law restored 
the ADA's definition of disability, rejecting two Supreme Court rulings 
that had narrowed the scope of the ADA. These amendments made it easier 
for individuals with disabilities to obtain protection under the ADA 
and directed that the definition of ``disability'' shall be construed 
broadly in favor of expansive coverage, to the maximum extent permitted 
by the terms of the ADA. The ADA Amendments Act made clear that the 
question of whether an individual meets the definition of disability 
should not demand extensive analysis and that the primary object of 
attention in cases brought under the ADA should be whether entities 
covered under the ADA have complied with their obligations and whether 
discrimination has occurred, not whether the individual meets the 
definition of disability.
    More recently, Congress addressed the Nation's workforce 
development system with the passage of the Workforce Innovation and 
Opportunity Act (``WIOA'') in 2014. See 29 U.S.C. 3101 et seq.). WIOA 
reauthorized critical programs to help job seekers, including those 
with disabilities, to access the services they need to succeed in 
employment. In particular, section 188 of WIOA prohibits discrimination 
in the provision of services by requiring that American Job Centers and 
other programs and activities funded under WIOA ensure that individuals 
with disabilities have equal opportunity to participate in services and 
receive appropriate accommodations. In addition, title IV of WIOA 
amended the Rehabilitation Act by defining ``competitive integrated 
employment.'' See 29 U.S.C. 705(5). The law defines competitive 
integrated employment, in part, as work for which individuals receive 
wages equal to or exceeding the Federal, State, or local minimum wage 
rates.\11\ In addition, title IV of WIOA added section 511, which 
requires that individuals with disabilities have access to training 
information and career counseling services to better enable them to 
achieve competitive integrated employment before and/or during 
employment at subminimum wages. 29 U.S.C. 794(g).
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    \11\ See 29 U.S.C. 705(5).
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    In short, since the enactment of the JWOD Act in 1938, Congress has 
made a consistent effort to move away from institutionalization, 
segregation, and unequal treatment of individuals with disabilities, 
and to move toward integration, inclusion, and equal treatment. U.S. 
public policy and approaches to serving individuals with disabilities 
have changed dramatically since 1938, and the Commission recognizes 
that the AbilityOne Program must change with the times as well. On 
March 18, 2016, the Commission issued a declaration that promoted/
encouraged the NPAs in the program to discontinue use of subminimum 
wages under section 14(c).\12\ The Commission believes that the 
continued payment of subminimum wages to employees with disabilities 
under section 14(c)

[[Page 56683]]

certificates is no longer aligned with modern disability policy.
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    \12\ AbilityOne Commission, Declaration in Support of Minimum 
Wage for All People Who Are Blind or Have Significant Disabilities, 
March 18, 2016. https://www.abilityone.gov/commission/documents/US%20AbilityOne%20Commission%20Declaration%2018March2016%20Final.pdf.

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C. Recent Federal Reports on Section 14(c)

    Given this evolution in the Nation's overall approach to disability 
policy, the call for the phase out and elimination of subminimum wages 
has steadily grown in volume. In addition to civil rights 
organizations, many Federal Government agencies and official entities 
have underscored their concerns with the outdated employment model 
embodied by section 14(c). For example, in 2012, the National Council 
on Disability (``NCD'') issued a report titled ``Subminimum Wage and 
Supported Employment'' that called for the phase-out of section 14(c) 
certificates. See National Council on Disability, Report on Subminimum 
Wage and Supported Employment, September 27, 2012.
    Notably, a Federal advisory committee tasked to provide 
recommendations about the future of section 14(c) released its final 
report in September 2016. In the report, the Advisory Committee on 
Increasing Competitive Integrated Employment for Individuals with 
Disabilities (``ACICIEID'' or ``Committee'') urged, ``Congress should 
amend Section 14(c) of FLSA to allow for a well-designed, multi-year 
phase-out of the Section 14(c) Program that results in people with 
disabilities entering competitive integrated employment.'' See ACICIEID 
Final Report, (September 2016).\13\ In a chapter addressing the 
AbilityOne Program, the Committee stated that AbilityOne should 
``immediately eliminate the use of the FLSA Section 14(c) certificates 
for all contractors providing products or services to Federal customers 
under the AbilityOne Program.'' See ACICIEID Final Report, p. 59.
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    \13\ https://www.dol.gov/sites/dolgov/files/odep/topics/pdf/acicieid_final_report_9-8-16.pdf.
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    More recently, two Government reports have called for the repeal of 
section 14(c) as well as modernization of the AbilityOne Program. In 
October 2018, the NCD published a report, From the New Deal to the Real 
Deal: Joining the Industries of the Future. The report's first 
recommendation stated, ``NCD renews its call from 6 years ago for a 
phase-out of the 80-year-old 14(c) program and the concomitant phase-up 
of the systems changes necessary to allow people with disabilities to 
move into competitive integrated employment.'' See National Council on 
Disability, From the New Deal to the Real Deal: Joining the Industries 
of the Future, (Washington, DC: 2018).\14\ On September 17, 2020, the 
United States Commission on Civil Rights (``USCCR'') published a report 
titled ``Subminimum Wages: Impacts on the Civil Rights of People with 
Disabilities.'' The USCCR recommended, ``Congress should repeal Section 
14(c) with a planned phase-out period to allow transition among service 
providers and people with disabilities to alternative service models 
prioritizing competitive integrated employment.'' U.S. Commission on 
Civil Rights, Subminimum Wages: Impacts on the Civil Rights of People 
with Disabilities, (Washington, DC: 2020).\15\
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    \14\ https://ncd.gov/sites/default/files/Documents/NCD_Deal_Report_508.pdf.
    \15\ https://www.usccr.gov/files/2020-09-17-Subminimum-Wages-Report.pdf.
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D. Biden Administration Actions During the First 100 Days

    The Biden administration has made it a priority to achieve a more 
inclusive country for individuals with disabilities. Executive Order 
13985, Advancing Racial Equity and Support for Underserved Communities, 
issued by President Biden on January 25, 2021, directs the entire 
Federal Government to pursue a comprehensive approach to advancing 
equity for all. 86 FR 7009 (January 25, 2021). It defines equity as the 
``consistent and systematic fair, just, and impartial treatment of all 
individuals,'' including individuals with disabilities. See Executive 
Order 13986, section 2. Executive Order 14026, ``Increasing the Minimum 
Wage for Federal Contractors'', 86 FR 22835 (April 30, 2021), requires 
an increase in the minimum wage to $15.00 per hour beginning January 
30, 2022, for ``workers performing on or in connection with covered 
Federal contracts,'' including the SCA. Executive Order 14026, section 
8. Workers covered by the Executive order include workers employed 
under section 14(c) certificates. Executive Order 14026, section 2.
    Under a Federal contract that is covered by both the SCA and 
Executive Order 14026, a worker performing contract work must be paid 
at the higher applicable wage rate. For example, for a worker with a 
disability performing work for an employer holding a section 14(c) 
certificate on a Federal contract that is covered by both the SCA and 
Executive Order 14026, where the SCA wage determination rate is $14.00 
per hour and the worker's section 14(c) wage rate based on their 
productivity is $9.50 per hour, the worker would be due $15.00 per 
hour, which is the applicable wage rate under Executive Order 14026. 
The worker would also be due the full fringe benefits on the contract. 
The Commission will follow the Administration's updates and guidance 
issued pursuant to both Executive orders and will implement such 
changes as may be required.
    On the legislative front, as part of the efforts to target 
workforce development opportunities in underserved communities, the 
Biden Administration's American Jobs Plan calls on Congress to 
eliminate subminimum wage provisions in section 14(c) of the FLSA and 
expand access to competitive, integrated employment opportunities and 
fair wages for workers with disabilities. See Fact Sheet: The American 
Jobs Plan, March 31, 2021.\16\
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    \16\ https://www.whitehouse.gov/briefing-room/statements-releases/2021/03/31/fact-sheet-the-american-jobs-plan.
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E. Steps Taken By the AbilityOne Commission With Regard to Use of 
Subminimum Wages in AbilityOne Contracts

    In response to the growing recognition of the civil rights issues 
associated with the payment of subminimum wages, the Commission has 
taken steps to highlight its concerns with payment of such wages in 
AbilityOne Programs. As mentioned previously, in 2016, the Commission 
members issued a ``Declaration in Support of Minimum Wage for All 
People Who Are Blind or Have Significant Disabilities.'' The 
declaration directed ``all qualified nonprofit agencies participating 
in the AbilityOne Program to commit to, and begin (if not maintain), 
paying at least the Federal minimum wage, or state minimum wage if 
higher, to all employees who are blind or have significant disabilities 
working on AbilityOne contracts.'' \17\
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    \17\ U.S. AbilityOne Commission, Declaration in Support of 
Minimum Wage for All People Who Are Blind or Have Significant 
Disabilities, March 16, 2016. https://www.abilityone.gov/commission/documents/US%20AbilityOne%20Commission%20Declaration%2018March2016%20Final.pdf.

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    Building on the 2016 Declaration, in February 2019, the Commission 
called on SourceAmerica to end the process of the payment of subminimum 
wages by its NPAs on AbilityOne contracts within three years. The 
Commission's letter acknowledged that ``[T]he imperative to end the 
payment of subminimum wages in the AbilityOne Program is growing in 
strength and momentum with every passing year. It is time to pay at 
least the Federal minimum wage, or state minimum wage if higher, to all 
employees who are blind or have

[[Page 56684]]

significant disabilities working on AbilityOne contracts.'' \18\
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    \18\ AbilityOne Letter to Mr. Norman Lorentz, Chair of the 
SourceAmerica Board, February 19, 2019. https://www.abilityone.gov/media_room/documents/Commission%20Chair%20Ltr%20to%20NIB%20&%20Sourceamerica%20Board%20Chairs%2020200323.pdf.
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    In 2020, the Commission initiated a new practice to identify and 
report in its decision documents any planned use of subminimum wages 
related to products and services for additions to the AbilityOne 
Procurement List. Commission members are thus informed about the use of 
such wages before they decide whether to approve future AbilityOne 
contract opportunities.
    Through these various actions, the Commission has been working 
towards bringing the AbilityOne Program into greater alignment with 
other disability employment laws, such as WIOA. The Commission now 
believes it is time to discontinue the practice of NPAs paying 
employees with disabilities subminimum wages using section 14(c) 
certificates on any new, extended, or renewed contract, with the 
exception of the exercise of options in an existing contract.

IV. Specific Proposed Changes to the NPAs' Payment of Subminimum Wages 
Under Section 14(c) Certificates for AbilityOne Contracts

    As set forth in the regulatory procedures section below, the 
Commission proposes to amend the qualification requirements for NPAs 
that participate in the AbilityOne Program, as set forth in 41 CFR 51-
4.2 and 51-4.3. The Commission proposes to add a requirement for 
initial qualification that a NPA must provide a certification that it 
will not pay subminimum wages using special wage certificates 
authorized under section 14(c) of the FLSA to employees on any contract 
or subcontract awarded under the program. In addition, the Commission 
proposes to add a requirement for maintaining qualification that a NPA 
provide a certification that it will not pay subminimum wages using 
section 14(c) certificates to employees on contracts or subcontracts 
awarded under the program. This requirement would not apply to the 
exercise of any options on an existing contract up to the time of the 
contract's extension or renewal, except as otherwise required by law, 
such as on the exercise of an option on an existing contract covered by 
Executive Order 14026. The NPA must comply with the requirement at the 
time of the extension or renewal of an existing contract.
    The Commission is seeking comments specifically on the following 
questions:
    (1) Should the requirement that a qualified NPA not use section 
14(c) certificates to pay subminimum wages on AbilityOne contracts 
apply to the renewal or extensions of contracts once they expire or 
only to new contracts? The Commission is interested in receiving data 
in support of any comment on this question.
    (2) Should the requirement that a qualified NPA not use section 
14(c) certificates to pay subminimum wages on AbilityOne contracts 
apply to the exercise of an option on an existing contract? The 
Commission is interested in receiving data in support of any comment on 
this question.
    (3) What impact, if any, would the proposed regulatory change make 
to the receipt of social security benefits, such as Supplemental 
Security Income (SSI) or Social Security Disability Insurance (SSDI) 
and attendant government health insurance, such as Medicare and 
Medicaid, to employees with disabilities? The Commission is also 
interested in receiving suggestions on how to address any possible 
adverse impacts that may be identified.
    (4) How much time, if any, would be necessary for NPAs to meet the 
new requirements?

V. Regulatory Procedures

Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Review)

    Executive Orders 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 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
It is anticipated that this will be a ``significant regulatory action'' 
and, therefore, subject to review under section 6(b) of E.O. 12866, 
Regulatory Planning and Review, dated September 30, 1993.
A. Costs of Prohibiting the Use of Subminimum Wages Under Section 14(c) 
Certificates as a Qualification for Participation as a Nonprofit Agency 
in the AbilityOne Program
    The Commission believes that the costs of requiring all new NPAs 
seeking to become qualified to participate in the AbilityOne Program 
and all existing NPAs wishing to maintain their qualification in the 
AbilityOne Program to certify that they will not pay subminimum wages 
under a section 14(c) certificate on contracts are not substantial and 
are outweighed by the benefits. NPAs participating in the AbilityOne 
Program are currently represented by two CNAs--NIB and SourceAmerica. 
NIB represents only one NPA that uses a section 14(c) certificate, but 
the NPA does not pay subminimum wages on its AbilityOne contracts.
    The Commission does not currently collect data directly from the 
CNAs or the NPAs participating in the program regarding the NPAs' use 
of section 14(c) certificates on AbilityOne contracts or the number of 
employees with disabilities paid subminimum wages under those contracts 
or the amount of those wages. The Commission requested information from 
SourceAmerica on the use of section 14(c) certificates because 
SourceAmerica's NPAs voluntarily report this data to the CNA.\19\ 
According to information provided by SourceAmerica, 160 of the 412 NPAs 
it represents (38 percent) hold and use section 14(c) certificates to 
pay subminimum wages on one or more AbilityOne contracts, as of the end 
of the first quarter of 2021.\20\
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    \19\ The Commission notes that because SourceAmerica data is 
self-reported by the NPAs and fluctuates by quarter, the data should 
be viewed as estimates and not exact figures.
    \20\ Statistics provided by SourceAmerica Interim Chief 
Executive Officer in a report to the Commission, posted at https://www.abilityone.gov/commission/public_meeting_archive.html.
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    SourceAmerica reports that the number of NPA employees with 
disabilities working under a section 14(c) certificate decreased from 
1,212 employees in the first quarter of 2020 to 674 employees in the 
first quarter of 2021.\21\ AbilityOne NPAs employ approximately 42,000 
individuals with disabilities, so the 674 employees with disabilities 
account for fewer than two percent of individuals with disabilities 
employed by AbilityOne NPAs.\22\ Therefore, although the number of NPAs 
affected by this proposed rule may be 42 percent of the NPAs 
participating in the AbilityOne program, the actual number of employees 
with disabilities for whom these NPAs will have to increase wages is a 
small number of NPA employees. The costs of this rule will be further 
reduced because the NPAs holding service contracts that are covered by 
Executive Order 14026 will already have to pay at least $15.00/hour to 
employees with disabilities under AbilityOne service contracts pursuant 
to that Executive order and its

[[Page 56685]]

implementing regulations beginning January 30, 2022. Executive Order 
14026, section 2(a)(1).
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    \21\ U.S. AbilityOne Commission Report to the President, March 
2021, p. 22.
    \22\ Id., p. 2.
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A. Benefits
    Paying wages to AbilityOne employees that are equal to the wages 
paid to other employees without disabilities performing the same or 
similar work will provide both tangible and intangible benefits to 
employees with disabilities and to society at large.
    The tangible financial benefits are the same that would accrue to 
any worker who receives a wage increase. Employees with significant 
disabilities who have been receiving subminimum wages for their work 
will now receive the Federal minimum wage, state minimum wage, or 
prevailing wage, depending on the applicable law. The result will be 
that such individuals will have an increased ability to make life 
decisions that require additional financial resources, such as where to 
live, what activities to engage in, and other basic aspects of life.
    The intangible benefits are, by definition, harder to quantify, but 
those benefits will accrue both to individuals with significant 
disabilities and society at large. Paying employees with disabilities 
the same wage legally required to be paid to employees without 
disabilities doing the same or similar work sends a message of respect 
and a commitment to equity. Work provides structure, purpose, and a 
sense of meaningful contribution to family and community. That is why 
the AbilityOne Program is so important for individuals with significant 
disabilities. At the same time, in our society, the wages paid for work 
send a message about the value of that work. Paying equivalent wages to 
employees with and without disabilities who are capable of and are 
doing the same or similar work as employees without disabilities 
reinforces that such work is equally valued and that individuals with 
disabilities are fully included in our society.
    The Commission recognizes that an increase in wages for employees 
with significant disabilities has the potential to trigger benefits 
reductions, depending on individual circumstances, for employees who 
are recipients of government benefits programs such as Social Security 
Disability Insurance (``SSDI'') or Supplemental Security Income 
(``SSI''), with attendant implications for coverage under Medicaid that 
often provides greater benefits than private health insurance. 
AbilityOne employees with disabilities will need assistance in 
assessing that possibility and in determining options to ensure that 
they do not lose important government benefits. The Commission expects 
to work closely with the CNAs and NPAs to assist in this effort. On 
balance, the Commission believes the overall benefits that the proposed 
rule will provide for AbilityOne employees with disabilities outweigh 
the potential benefits challenges that some AbilityOne employees will 
face.
Regulatory Flexibility Act
    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et seq., 
requires agencies to prepare regulatory flexibility analyses, and to 
develop alternatives wherever possible, in drafting regulations that 
will have a significant impact on a substantial number of small 
entities. The rule only applies to NPAs that propose to use or 
currently use certificates authorized by section 14(c) of the FLSA to 
pay subminimum wages on AbilityOne contracts. The majority of 
AbilityOne participating nonprofit agencies do not hold or use these 
special certificates.
Unfunded Mandates Reform
    This proposed rule does not include any Federal mandate that may 
result in increased expenditures by State, local, and tribal 
governments, taken together, of $100 million or more, or in increased 
expenditures by the private sector of $100 million or more.
Paperwork Reduction Act
    The proposed rule will require the Commission to collect 
information within its Annual Representations and Certifications 
regarding the certification not to pay subminimum wages under section 
14(c) certificates to employees. The Commission collects similar 
information (overall wages) but does not currently or specifically 
collect a certification not to pay subminimum wages under section 14(c) 
certificates to employees.
    The following is a summary of the need for and objectives of the 
proposed rule. A more complete discussion of various aspects of the 
proposed rule can be found in the preamble. The payment of subminimum 
wages under section 14(c) certificates to employees working on Federal 
contracts in the AbilityOne Program is not consistent with modern 
disability policy, diminishes the value of the work and the workers, 
and diminishes support for the program itself. The Commission proposes 
to add a new requirement for initial qualification and maintaining 
qualification for NPAs to participate in the AbilityOne Program. The 
requirement provides that for a NPA to qualify or maintain its 
qualification under the AbilityOne Program, the NPA must certify that 
on all contracts awarded, extended (other than through the exercise of 
an option), or renewed after the effective date of this rule, the NPA 
will not use a special wage certificate authorized under section 14(c) 
of the FLSA to pay subminimum wages to employees on any contract or 
subcontract awarded under the program.
Small Business Regulatory Enforcement Fairness Act of 1996
    This proposed rule would not constitute a major rule as defined by 
section 804 of the Small Business Regulatory Enforcement Fairness Act 
of 1996. This proposed rule will not result in an annual effect on the 
economy of $100,000,000 or more; a major increase in costs or prices; 
or significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of the United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

    Authority: 41 U.S.C. 8503(d).

List of Subjects in 41 CFR Part 51-4

    Government procurement, Individuals with disabilities, Reporting 
and recordkeeping requirements.

    Accordingly, the Commission proposes to amend 41 CFR part 51-4 as 
set forth below:

PART 51-4--NONPROFIT AGENCIES

0
1. The authority citation for part 51-4 continues to read as follows:

    Authority: 41 U.S.C. 46-48c.

0
2. Amend Sec.  51-4.2 by adding paragraph (a)(1)(iv) and revising 
paragraph (b) to read as follows:


Sec.  51-4.2   Initial qualification.

    (a) * * *
    (1) * * *
    (iv) A certification that the nonprofit agency will not pay 
subminimum wages using special wage certificates authorized under 
section 14(c) of the Fair Labor Standards Act of 1938 (29 U.S.C. 
214(c)) to employees on any contract or subcontract awarded under the 
program.
* * * * *
    (b) The Committee shall review the documents submitted and, if they 
are acceptable, notify the nonprofit agency by letter, with a copy to 
its central nonprofit agency, that the Committee has verified its 
nonprofit status and certification under paragraph (a)(1)(iv)

[[Page 56686]]

of this section under the Javits-Wagner-O'Day (JWOD) Act.
* * * * *
0
3. Amend Sec.  51-4.3 by adding paragraph (b)(10) to read as follows:


Sec.  51-4.3  Maintaining qualification.

* * * * *
    (b) * * *
    (10)(i) Except as provided in paragraph (b)(10)(ii) of this 
section, provide certification that the nonprofit agency will not pay 
subminimum wages using special wage certificates authorized under 
section 14(c) of the Fair Labor Standards Act of 1938 (29 U.S.C. 
214(c)) to employees on any contract or subcontract under the program.
    (ii) The requirement of paragraph (a) of this section does not 
apply to the exercise of any options on an existing contract up to the 
time of the contract's extension or renewal, except as otherwise 
required by law.
* * * * *

Michael R. Jurkowski,
Acting Director, Business Operations.
[FR Doc. 2021-22118 Filed 10-8-21; 8:45 am]
BILLING CODE 6353-01-P