80_FR_76146 80 FR 75913 - Federal Acquisition Regulation; Retention Periods

80 FR 75913 - Federal Acquisition Regulation; Retention Periods

DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 80, Issue 233 (December 4, 2015)

Page Range75913-75915
FR Document2015-30460

DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to update the Government contract file retention periods to conform with the retention periods in the National Archives and Records Administration (NARA) General Records Schedule.

Federal Register, Volume 80 Issue 233 (Friday, December 4, 2015)
[Federal Register Volume 80, Number 233 (Friday, December 4, 2015)]
[Rules and Regulations]
[Pages 75913-75915]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-30460]


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

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 4

[FAC 2005-85; FAR Case 2015-009; Item V; Docket No. 2015-0009, Sequence 
No. 1]
RIN 9000-AN12


Federal Acquisition Regulation; Retention Periods

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

ACTION: Final rule.

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

SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to update the Government contract 
file retention periods to conform with the retention periods in the 
National Archives and Records Administration (NARA) General Records 
Schedule.

DATES: Effective: January 4, 2016.

FOR FURTHER INFORMATION CONTACT: Mr. Curtis E. Glover, Sr., Procurement 
Analyst, at 202-501-1448, for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at 202-501-4755. Please cite FAC 2005-85, FAR Case 2015-
009.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA are issuing a final rule to update the 
Government file retention periods identified at FAR 4.805, Government 
contract files, to conform with the retention periods in the revised 
NARA General Records Schedule (GRS) 1.1, Financial Management and 
Reporting Records notice, which was published in the Federal Register 
at 79 FR 54747 on September 12, 2014. The Financial Management and 
Reporting Records can be found at http://www.archives.gov/records-mgmt/grs.html.
    NARA has undertaken a 5-year project to redraft the entire GRS to 
reflect the realities of current Government business practices and make 
it more useful in a world where almost all record keeping is 
electronic. NARA is charged with oversight of how all records of the 
Federal Government are managed and retained for business use and 
historical research. Its research on writing a new schedule for 
Financial Management and Reporting Records (GRS 1.1) was carried out 
under that authority.
    NARA's research has shown that many agencies believe the break 
between procurements over and under the simplified acquisition 
threshold (6 years, 3 months versus 3 years retention) is no longer 
useful to them. NARA polled records management personnel at numerous 
agencies regarding records created in largely electronic acquisition 
systems. It also examined and tallied statistics regarding some 675,000 
boxes of hard-copy records stored in the Federal Records Center system. 
As such, NARA eliminated the distinction between over and under the 
simplified acquisition threshold for purposes of record keeping and 
unified all retention under a single figure of 6 years under GRS 1.1, 
item 010.
    The retention periods for Government contract records at FAR 
section 4.805 is changed to conform to the revised NARA GRS 1.1, as 
follows:
     Language at paragraph (a) regarding agency procedures for 
contract file disposal is removed.
     Language at paragraph (b) regarding retention periods for 
acquisitions conducted prior to July 3, 1995 is removed.
     Language is added at a new paragraph (c) to require 
agencies to request approval from NARA through the agency's records 
officer if a shorter retention is needed.
     In the Table at 4-1:
    [cir] The retention period identified for records related to 
Contract Disputes statute actions is removed; the requirement is 
covered by paragraphs numbered (1) and (8).
    [cir] The retention period for all contracts and related records is 
changed to 6 years after final payment.
    [cir] The retention period for unsolicited proposals not accepted 
by the agency is changed to be in accordance with agency procedures.

II. Publication of This Final Rule for Public Comment is Not Required 
By Statute

    ``Publication of proposed regulations'', 41 U.S.C. 1707, is the 
statute which applies to the publication of the Federal Acquisition 
Regulation. Paragraph (a)(1) of the statute requires that a procurement 
policy, regulation, procedure or form (including an amendment or 
modification thereof) must be published for public comment if it 
relates to the expenditure of appropriated funds, and has either a 
significant effect beyond the internal operating procedures of the 
agency issuing the policy, regulation, procedure or form, or has a 
significant cost or administrative impact on contractors or offerors. 
This final rule is not required to be published for public comment, 
because it only changes the retention periods for Government contract 
files. These requirements affect only the internal operating procedures 
of the Government.

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 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

[[Page 75914]]

rule is not a major rule under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule because 
this final rule does not constitute a significant FAR revision within 
the meaning of FAR 1.501-1 and 41 U.S.C. 1707 does not require 
publication for public comment.

V. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. Chapter 35).

List of Subject in 48 CFR Part 4

    Government procurement.

    Dated: November 20, 2015.
William Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.
    Therefore, DoD, GSA, and NASA amend 48 CFR part 4 as set forth 
below:

PART 4--ADMINISTRATIVE MATTERS

0
1. The authority citation for 48 CFR part 4 continues to read as 
follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.


0
2. Revise section 4.805 to read as follows.


4.805  Storage, handling, and contract files.

    (a) Agencies must prescribe procedures for the handling, storing, 
and disposing of contract files, in accordance with the National 
Archives and Records Administration (NARA) General Records Schedule 
1.1, Financial Management and Reporting Records. The Financial 
Management and Reporting Records can be found at http://www.archives.gov/records-mgmt/grs.html. These procedures must take into 
account documents held in all types of media, including microfilm and 
various electronic media. Agencies may change the original medium to 
facilitate storage as long as the requirements of Part 4, law, and 
other regulations are satisfied. The process used to create and store 
records must record and reproduce the original document, including 
signatures and other written and graphic images completely, accurately, 
and clearly. Data transfer, storage, and retrieval procedures must 
protect the original data from alteration. Unless law or other 
regulations require signed originals to be kept, they may be destroyed 
after the responsible agency official verifies that record copies on 
alternate media and copies reproduced from the record copy are 
accurate, complete, and clear representations of the originals. When 
original documents have been converted to alternate media for storage, 
the requirements in Table 4-1 of this section also apply to the record 
copies in the alternate media.
    (b) If administrative records are mixed with program records and 
cannot be economically segregated, the entire file should be kept for 
the period of time approved for the program records. Similarly, if 
documents described in the following table are part of a subject or 
case file that documents activities that are not described in the 
table, they should be treated in the same manner as the files of which 
they are a part.
    (c) An agency that requires a shorter retention period than those 
identified in Table 4-1 shall request approval from NARA through the 
agency's records officer.

                      Table 4-1--Retention Periods
------------------------------------------------------------------------
                 Record                          Retention period
------------------------------------------------------------------------
(1) Contracts (and related records or    6 years after final payment.
 documents, including successful and
 unsuccessful proposals, except see
 paragraph (c)(2) of this section
 regarding contractor payrolls
 submitted under construction
 contracts).
(2) Contractor's payrolls submitted      3 years after contract
 under construction contracts in          completion unless contract
 accordance with Department of Labor      performance is the subject of
 regulations (29 CFR 5.5(a)(3)), with     an enforcement action on that
 related certifications, anti-kickback    date (see paragraph (c)(8) of
 affidavits, and other related records.   this section).
(3) Unsolicited proposals not accepted   Retain in accordance with
 by a department or agency.               agency procedures.
(4) Files for canceled solicitations...  6 years after cancellation.
(5) Other copies of procurement file     When business use ceases.
 records used for administrative
 purposes.
(6) Documents pertaining generally to    Until superseded or obsolete.
 the contractor as described at
 4.801(c)(3).
(7) Data submitted to the Federal        6 years after submittal to
 Procurement Data System (FPDS).          FPDS.
 Electronic data file maintained by
 fiscal year, containing unclassified
 records of all procurements exceeding
 the micro-purchase threshold, and
 information required under 4.603.
(8) Investigations, cases pending or in  Until final clearance or
 litigation (including protests), or      settlement, or, if related to
 similar matters (including enforcement   a document identified in
 actions).                                paragraphs (c)(1) through (7)
                                          of this section, for the
                                          retention period specified for
                                          the related document,
                                          whichever is later.
------------------------------------------------------------------------

[FR Doc. 2015-30460 Filed 12-3-15; 8:45 am]
 BILLING CODE 6820-EP-P



                                                              Federal Register / Vol. 80, No. 233 / Friday, December 4, 2015 / Rules and Regulations                                       75913

                                              Authority: 40 U.S.C. 121(c); 10 U.S.C.                Archives and Records Administration                     • Language at paragraph (b) regarding
                                            chapter 137; and 51 U.S.C. 20113.                       (NARA) General Records Schedule.                      retention periods for acquisitions
                                            ■ 2. Revise section 3.908–5 to read as                  DATES: Effective: January 4, 2016.                    conducted prior to July 3, 1995 is
                                            follows.                                                FOR FURTHER INFORMATION CONTACT: Mr.                  removed.
                                                                                                    Curtis E. Glover, Sr., Procurement                      • Language is added at a new
                                            3.908–5 Procedures for investigating                                                                          paragraph (c) to require agencies to
                                            complaints.                                             Analyst, at 202–501–1448, for
                                                                                                    clarification of content. For information             request approval from NARA through
                                              (a) Investigation of complaints will be                                                                     the agency’s records officer if a shorter
                                                                                                    pertaining to status or publication
                                            in accordance with 41 U.S.C. 4712(b).                                                                         retention is needed.
                                                                                                    schedules, contact the Regulatory
                                              (b) Upon completion of the                                                                                    • In the Table at 4–1:
                                                                                                    Secretariat at 202–501–4755. Please cite                Æ The retention period identified for
                                            investigation, the head of the agency or
                                                                                                    FAC 2005–85, FAR Case 2015–009.                       records related to Contract Disputes
                                            designee shall ensure that the Inspector
                                            General provides the report of findings                 SUPPLEMENTARY INFORMATION:                            statute actions is removed; the
                                            to—                                                     I. Background                                         requirement is covered by paragraphs
                                              (1) The complainant and any person                                                                          numbered (1) and (8).
                                            acting on the complainant’s behalf;                        DoD, GSA, and NASA are issuing a                     Æ The retention period for all
                                              (2) The contractor alleged to have                    final rule to update the Government file              contracts and related records is changed
                                            committed the violation; and                            retention periods identified at FAR                   to 6 years after final payment.
                                              (3) The head of the contracting                       4.805, Government contract files, to                    Æ The retention period for unsolicited
                                            activity.                                               conform with the retention periods in                 proposals not accepted by the agency is
                                              (c) The complainant and contractor                    the revised NARA General Records                      changed to be in accordance with
                                            shall be afforded the opportunity to                    Schedule (GRS) 1.1, Financial                         agency procedures.
                                            submit a written response to the report                 Management and Reporting Records
                                                                                                    notice, which was published in the                    II. Publication of This Final Rule for
                                            of findings within 30 days to the head
                                                                                                    Federal Register at 79 FR 54747 on                    Public Comment is Not Required By
                                            of the agency or designee. Extensions of
                                                                                                    September 12, 2014. The Financial                     Statute
                                            time to file a written response may be
                                            granted by the head of the agency or                    Management and Reporting Records can                     ‘‘Publication of proposed
                                            designee.                                               be found at http://www.archives.gov/                  regulations’’, 41 U.S.C. 1707, is the
                                              (d) At any time, the head of the                      records-mgmt/grs.html.                                statute which applies to the publication
                                            agency or designee may request                             NARA has undertaken a 5-year project               of the Federal Acquisition Regulation.
                                            additional investigative work be done                   to redraft the entire GRS to reflect the              Paragraph (a)(1) of the statute requires
                                            on the complaint.                                       realities of current Government business              that a procurement policy, regulation,
                                                                                                    practices and make it more useful in a                procedure or form (including an
                                            ■ 3. Revise the section heading for
                                                                                                    world where almost all record keeping                 amendment or modification thereof)
                                            section to read as follows:
                                                                                                    is electronic. NARA is charged with                   must be published for public comment
                                            3.908–6    Remedies.                                    oversight of how all records of the                   if it relates to the expenditure of
                                            *      *     *       *      *                           Federal Government are managed and                    appropriated funds, and has either a
                                            [FR Doc. 2015–30459 Filed 12–3–15; 8:45 am]             retained for business use and historical              significant effect beyond the internal
                                            BILLING CODE 6820–EP–P                                  research. Its research on writing a new               operating procedures of the agency
                                                                                                    schedule for Financial Management and                 issuing the policy, regulation, procedure
                                                                                                    Reporting Records (GRS 1.1) was carried               or form, or has a significant cost or
                                            DEPARTMENT OF DEFENSE                                   out under that authority.                             administrative impact on contractors or
                                                                                                       NARA’s research has shown that                     offerors. This final rule is not required
                                            GENERAL SERVICES                                        many agencies believe the break                       to be published for public comment,
                                            ADMINISTRATION                                          between procurements over and under                   because it only changes the retention
                                                                                                    the simplified acquisition threshold (6               periods for Government contract files.
                                            NATIONAL AERONAUTICS AND                                years, 3 months versus 3 years                        These requirements affect only the
                                            SPACE ADMINISTRATION                                    retention) is no longer useful to them.               internal operating procedures of the
                                                                                                    NARA polled records management                        Government.
                                            48 CFR Part 4                                           personnel at numerous agencies
                                                                                                    regarding records created in largely                  III. Executive Orders 12866 and 13563
                                            [FAC 2005–85; FAR Case 2015–009; Item
                                            V; Docket No. 2015–0009, Sequence No. 1]                electronic acquisition systems. It also                  Executive Orders (E.O.s) 12866 and
                                                                                                    examined and tallied statistics regarding             13563 direct agencies to assess all costs
                                            RIN 9000–AN12                                           some 675,000 boxes of hard-copy                       and benefits of available regulatory
                                                                                                    records stored in the Federal Records                 alternatives and, if regulation is
                                            Federal Acquisition Regulation;                                                                               necessary, to select regulatory
                                                                                                    Center system. As such, NARA
                                            Retention Periods                                                                                             approaches that maximize net benefits
                                                                                                    eliminated the distinction between over
                                            AGENCY:  Department of Defense (DoD),                   and under the simplified acquisition                  (including potential economic,
                                            General Services Administration (GSA),                  threshold for purposes of record keeping              environmental, public health and safety
                                            and National Aeronautics and Space                      and unified all retention under a single              effects, distributive impacts, and
                                            Administration (NASA).                                  figure of 6 years under GRS 1.1, item                 equity). E.O. 13563 emphasizes the
                                            ACTION: Final rule.                                     010.                                                  importance of quantifying both costs
wgreen on DSK2VPTVN1PROD with RULES2




                                                                                                       The retention periods for Government               and benefits, of reducing costs, of
                                            SUMMARY:   DoD, GSA, and NASA are                       contract records at FAR section 4.805 is              harmonizing rules, and of promoting
                                            issuing a final rule amending the                       changed to conform to the revised                     flexibility. This is not a significant
                                            Federal Acquisition Regulation (FAR) to                 NARA GRS 1.1, as follows:                             regulatory action and, therefore, was not
                                            update the Government contract file                        • Language at paragraph (a) regarding              subject to review under Section 6(b) of
                                            retention periods to conform with the                   agency procedures for contract file                   E.O. 12866, Regulatory Planning and
                                            retention periods in the National                       disposal is removed.                                  Review, dated September 30, 1993. This


                                       VerDate Sep<11>2014   15:22 Dec 03, 2015   Jkt 238001   PO 00000   Frm 00013   Fmt 4701   Sfmt 4700   E:\FR\FM\04DER2.SGM   04DER2


                                            75914                 Federal Register / Vol. 80, No. 233 / Friday, December 4, 2015 / Rules and Regulations

                                            rule is not a major rule under 5 U.S.C.                           PART 4—ADMINISTRATIVE MATTERS                              images completely, accurately, and
                                            804.                                                                                                                         clearly. Data transfer, storage, and
                                                                                                              ■ 1. The authority citation for 48 CFR                     retrieval procedures must protect the
                                            IV. Regulatory Flexibility Act                                    part 4 continues to read as follows:                       original data from alteration. Unless law
                                              The Regulatory Flexibility Act does                               Authority: 40 U.S.C. 121(c); 10 U.S.C.                   or other regulations require signed
                                            not apply to this rule because this final                         chapter 137; and 51 U.S.C. 20113.                          originals to be kept, they may be
                                                                                                                                                                         destroyed after the responsible agency
                                            rule does not constitute a significant                            ■ 2. Revise section 4.805 to read as
                                                                                                                                                                         official verifies that record copies on
                                            FAR revision within the meaning of                                follows.
                                                                                                                                                                         alternate media and copies reproduced
                                            FAR 1.501–1 and 41 U.S.C. 1707 does
                                                                                                              4.805      Storage, handling, and contract                 from the record copy are accurate,
                                            not require publication for public                                files.                                                     complete, and clear representations of
                                            comment.                                                                                                                     the originals. When original documents
                                                                                                                (a) Agencies must prescribe
                                            V. Paperwork Reduction Act                                        procedures for the handling, storing,                      have been converted to alternate media
                                                                                                              and disposing of contract files, in                        for storage, the requirements in Table 4–
                                              The rule does not contain any                                   accordance with the National Archives                      1 of this section also apply to the record
                                            information collection requirements that                          and Records Administration (NARA)                          copies in the alternate media.
                                            require the approval of the Office of                             General Records Schedule 1.1, Financial                       (b) If administrative records are mixed
                                            Management and Budget under the                                   Management and Reporting Records.                          with program records and cannot be
                                            Paperwork Reduction Act (44 U.S.C.                                The Financial Management and                               economically segregated, the entire file
                                            Chapter 35).                                                      Reporting Records can be found at                          should be kept for the period of time
                                                                                                              http://www.archives.gov/records-mgmt/                      approved for the program records.
                                            List of Subject in 48 CFR Part 4                                  grs.html. These procedures must take                       Similarly, if documents described in the
                                                                                                              into account documents held in all                         following table are part of a subject or
                                               Government procurement.
                                                                                                              types of media, including microfilm and                    case file that documents activities that
                                               Dated: November 20, 2015.                                      various electronic media. Agencies may                     are not described in the table, they
                                            William Clark,                                                    change the original medium to facilitate                   should be treated in the same manner as
                                            Director, Office of Government-wide                               storage as long as the requirements of                     the files of which they are a part.
                                            Acquisition Policy, Office of Acquisition                         Part 4, law, and other regulations are                        (c) An agency that requires a shorter
                                            Policy, Office of Government-wide Policy.                         satisfied. The process used to create and                  retention period than those identified in
                                                                                                              store records must record and reproduce                    Table 4–1 shall request approval from
                                              Therefore, DoD, GSA, and NASA
                                                                                                              the original document, including                           NARA through the agency’s records
                                            amend 48 CFR part 4 as set forth below:                                                                                      officer.
                                                                                                              signatures and other written and graphic

                                                                                                                   TABLE 4–1—RETENTION PERIODS
                                                                                       Record                                                                                  Retention period

                                            (1) Contracts (and related records or documents, including successful                               6 years after final payment.
                                              and unsuccessful proposals, except see paragraph (c)(2) of this sec-
                                              tion regarding contractor payrolls submitted under construction con-
                                              tracts).
                                            (2) Contractor’s payrolls submitted under construction contracts in ac-                             3 years after contract completion unless contract performance is the
                                              cordance with Department of Labor regulations (29 CFR 5.5(a)(3)),                                   subject of an enforcement action on that date (see paragraph (c)(8)
                                              with related certifications, anti-kickback affidavits, and other related                            of this section).
                                              records.
                                            (3) Unsolicited proposals not accepted by a department or agency .......                            Retain in accordance with agency procedures.
                                            (4) Files for canceled solicitations ............................................................   6 years after cancellation.
                                            (5) Other copies of procurement file records used for administrative                                When business use ceases.
                                              purposes.
                                            (6) Documents pertaining generally to the contractor as described at                                Until superseded or obsolete.
                                              4.801(c)(3).
                                            (7) Data submitted to the Federal Procurement Data System (FPDS).                                   6 years after submittal to FPDS.
                                              Electronic data file maintained by fiscal year, containing unclassified
                                              records of all procurements exceeding the micro-purchase threshold,
                                              and information required under 4.603.
                                            (8) Investigations, cases pending or in litigation (including protests), or                         Until final clearance or settlement, or, if related to a document identi-
                                              similar matters (including enforcement actions).                                                    fied in paragraphs (c)(1) through (7) of this section, for the retention
                                                                                                                                                  period specified for the related document, whichever is later.



                                            [FR Doc. 2015–30460 Filed 12–3–15; 8:45 am]
                                            BILLING CODE 6820–EP–P
wgreen on DSK2VPTVN1PROD with RULES2




                                       VerDate Sep<11>2014      17:23 Dec 03, 2015      Jkt 238001     PO 00000      Frm 00014     Fmt 4701     Sfmt 4700   E:\FR\FM\04DER2.SGM    04DER2


                                                              Federal Register / Vol. 80, No. 233 / Friday, December 4, 2015 / Rules and Regulations                                         75915

                                            DEPARTMENT OF DEFENSE                                   A. Changes                                               1. The E.O. did not provide for
                                                                                                                                                          appropriation of funds to ensure that no
                                            GENERAL SERVICES                                           The interim rule is converted to a
                                                                                                    final rule with only minor changes.                   workers with disabilities lose their jobs;
                                            ADMINISTRATION
                                                                                                                                                             2. The E.O. did not require
                                                                                                    B. Analysis of Public Comment                         information or data collection methods
                                            NATIONAL AERONAUTICS AND
                                            SPACE ADMINISTRATION                                      One respondent submitted one                        in order to evaluate the rule’s effects;
                                                                                                    comment.                                              therefore, this suggestion is beyond the
                                            48 CFR Parts 1, 22, and 52                                Comment: Although the respondent                    scope of the E.O., and outside the
                                                                                                    was generally supportive of the intent of             implementation of the FAR rule; and
                                            [FAC 2005–85; FAR Case 2015–003; Item                   the E.O. raising the minimum wage for                    3. When contracts become subject to
                                            VI; Docket No. 2014–0050; Sequence                      workers performing on or in connection                the E.O., the minimum wage is
                                            No. 1]                                                  with Federal contracts, the respondent                considered in the contract price either
                                                                                                    expressed deep concern that the E.O.                  through the offer/bid process when an
                                            RIN 9000–AM82                                           and the implementing FAR rule will                    offeror is responding to a solicitation or,
                                                                                                    have a negative impact on the
                                            Federal Acquisition Regulation:                                                                               in the case of a modification, through
                                                                                                    employment of individuals with
                                            Establishing a Minimum Wage for                                                                               appropriate consideration, in
                                                                                                    significant disabilities, specifically
                                            Contractors                                                                                                   accordance with FAR conventions (see
                                                                                                    those who earn commensurate wages
                                                                                                    under special subminimum wage                         FAR 1.108(d)(3)), therefore explicit
                                            AGENCY:  Department of Defense (DoD),                                                                         price adjustment language is not
                                            General Services Administration (GSA),                  certificates issued by DOL pursuant to
                                                                                                    Section 14(c) of the Fair Labor                       necessary. However, the rule does
                                            and National Aeronautics and Space
                                                                                                    Standards Act (FLSA). The respondent                  provide that contractors may request
                                            Administration (NASA).
                                                                                                    suggested a number of actions that the                price adjustments for any worker based
                                            ACTION: Final rule.                                                                                           on an increase in labor costs resulting
                                                                                                    Federal Government could take to
                                            SUMMARY:   DoD, GSA, and NASA have                      mitigate unintended consequences of                   from the annual inflation increases in
                                            adopted as final, with changes, an                      the rule:                                             the E.O. minimum wage beginning
                                            interim rule amending the Federal                         1. Provide adequate funding to ensure               January 1, 2016. This is depicted in the
                                            Acquisition Regulation (FAR) to                         no workers with disabilities lose their               table at FAR 22.1904(b)(2). The Councils
                                            implement the Executive Order (E.O.)                    jobs as a result of wage increases                    have revised the language at FAR
                                            Establishing a Minimum Wage for                         required by the rule.                                 paragraph 22.1904(b)(2) and in the table
                                            Contractors, and a final rule issued by                   2. Compile data regarding the number                to specify that service or construction
                                            the Department of Labor (DOL).                          of such individuals displaced from                    wage determination rates should only be
                                            DATES: Effective: December 4, 2015.                     employment or shifted to non-Federal                  considered if they are applicable to the
                                            FOR FURTHER INFORMATION CONTACT: Mr.                    contract work as a result of the rule.                worker. The revised language recognizes
                                            Edward Loeb, Procurement Analyst, at                      3. Allow contractors to request a price             that workers with disabilities whose
                                            202–501–0650 for clarification of                       adjustment for these individuals based                wages are calculated pursuant to special
                                            content. For information pertaining to                  on the difference between the current                 certificates issued under 29 U.S.C.
                                            status or publication schedules, contact                wage paid and the higher E.O. minimum                 214(c) may not have been paid the full
                                            the Regulatory Secretariat at 202–501–                  wage, and provide an example of such                  applicable service wage determination
                                            4755. Please cite FAC 2005–85, FAR                      a price adjustment in the rule.                       rate.
                                            Case 2015–003.                                            Response: Executive Order 13658
                                                                                                                                                          III. Executive Orders 12866 and 13563
                                            SUPPLEMENTARY INFORMATION:                              expressly provides that its minimum
                                                                                                    wage protections extend to workers with                  Executive Orders (E.O.s) 12866 and
                                            I. Background                                           disabilities whose wages are governed                 13563 direct agencies to assess all costs
                                              DoD, GSA, and NASA published an                       pursuant to special certificates issued               and benefits of available regulatory
                                            interim rule in the Federal Register at                 under Section 14(c) of the FLSA. The                  alternatives and, if regulation is
                                            79 FR 74544 on December 15, 2014, to                    Councils appreciate the concerns raised               necessary, to select regulatory
                                            implement Executive Order (E.O.)                        by this respondent regarding the                      approaches that maximize net benefits
                                            13658, Establishing a Minimum Wage                      potential loss of employment that could               (including potential economic,
                                            for Contractors, and a final rule issued                result from requiring that the E.O.                   environmental, public health and safety
                                            by DOL at 29 CFR part 10. A correction                  minimum wage be paid to FLSA Section                  effects, distributive impacts, and
                                            to the interim rule was published at 79                 14(c) workers, particularly workers with
                                                                                                                                                          equity). E.O. 13563 emphasizes the
                                            FR 75434 on December 18, 2014                           significant disabilities, performing on or
                                                                                                                                                          importance of quantifying both costs
                                            establishing the rule’s effective date as               in connection with covered contracts
                                                                                                                                                          and benefits, of reducing costs, of
                                            December 15, 2014. For a discussion of                  who are currently paid a lower
                                                                                                    commensurate wage rate. The Councils                  harmonizing rules, and of promoting
                                            the FAR implementation of the E.O., see                                                                       flexibility. This is not a significant rule
                                            the interim rule. One respondent                        do not have the discretion to adjust the
                                                                                                    rule, as the rule implements the E.O.                 and, therefore, not subject to review
                                            submitted a public comment on the                                                                             under section 6(b) of E.O. 12866,
                                            interim rule.                                           and the DOL implementing regulation,
                                                                                                    which both specifically require                       Regulatory Planning and Review, dated
                                            II. Discussion and Analysis                             application of the rule to workers whose              September 30, 1993. This rule is not a
wgreen on DSK2VPTVN1PROD with RULES2




                                              The Civilian Agency Acquisition                       wages are calculated pursuant to special              major rule under 5 U.S.C. 804.
                                            Council and the Defense Acquisition                     certificates issued under 29 U.S.C.                   IV. Regulatory Flexibility Act
                                            Regulations Council (the Councils)                      214(c).
                                            reviewed the public comment submitted                     With regard to the respondent’s                       DoD, GSA, and NASA have prepared
                                            in the development of the final rule. A                 suggestions for mitigating negative                   a Final Regulatory Flexibility Analysis
                                            discussion of the comment follows.                      impacts—                                              (FRFA) consistent with the Regulatory


                                       VerDate Sep<11>2014   17:23 Dec 03, 2015   Jkt 238001   PO 00000   Frm 00015   Fmt 4701   Sfmt 4700   E:\FR\FM\04DER2.SGM   04DER2



Document Created: 2015-12-14 13:52:32
Document Modified: 2015-12-14 13:52:32
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective: January 4, 2016.
ContactMr. Curtis E. Glover, Sr., Procurement Analyst, at 202-501-1448, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. Please cite FAC 2005-85, FAR Case 2015- 009.
FR Citation80 FR 75913 
RIN Number9000-AN12

2024 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR