81 FR 67732 - Federal Acquisition Regulation: Non-Retaliation for Disclosure of Compensation Information
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION Federal Register Volume 81, Issue 190 (September 30, 2016)
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
Federal Register Volume 81, Issue 190 (September 30, 2016)
| Page Range | 67732-67735 | |
| FR Document | 2016-23196 |
[Federal Register Volume 81, Number 190 (Friday, September 30, 2016)] [Rules and Regulations] [Pages 67732-67735] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-23196] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 1, 22, and 52 [FAC 2005-91; FAR Case 2016-007; Item III; Docket No. 2016-0007; Sequence No. 1] RIN 9000-AN10 Federal Acquisition Regulation: Non-Retaliation for Disclosure of Compensation Information AGENCY: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Interim rule. ----------------------------------------------------------------------- SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the Federal Acquisition Regulation (FAR) to implement Executive Order (E.O.), entitled ``Non-Retaliation for Disclosure of Compensation Information,'' and a final rule issued by the Department of Labor. DATES: Effective: September 30, 2016. Applicability Date: This rule applies to solicitations and contracts issued on or after the effective date of the FAR rule. Contracting officers are expected to work with their existing contractors and bilaterally modify their contracts, to the extent feasible, to include the amended clause at FAR 52.222-26, Equal Opportunity. See FAR 1.108(d). Comment Date: Interested parties should submit written comments to the Regulatory Secretariat Division at one of the addresses shown below on or before November 29, 2016 to be considered in the formation of the final rule. ADDRESSES: Submit comments identified by FAC 2005-91, FAR Case 2016- 007, by any of the following methods:Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering ``FAR Case 2016-007''. Select the link ``Comment Now'' that corresponds with ``FAR Case 2016-007''. Follow the instructions provided on the screen. Please include your name, company name (if any), and ``FAR Case 2016-007'' on your attached document. Mail: General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20405-0001. Instructions: Please submit comments only and cite ``FAR Case 2016- 007'' in all correspondence related to this case. Comments received generally will be posted without change to http://regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail). FOR FURTHER INFORMATION CONTACT: Ms. Zenaida Delgado, Procurement Analyst, at 202-969-7207 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAC 2005-91, FAR Case 2016-007. SUPPLEMENTARY INFORMATION: I. Background DoD, GSA, and NASA are issuing an interim rule amending the FAR to implement Executive Order (E.O.) 13665, entitled ``Non-Retaliation for Disclosure of Compensation Information.'' The E.O. was signed April 8, 2014, and was published in the Federal Register at 79 FR 20749, on April 11, 2014. This interim rule is also implementing the final rule issued by the Office of Federal Contract Compliance Programs (OFCCP) of the Department of Labor (DOL) to implement E.O. 13665. The DOL final rule was published in the Federal Register at 80 FR 54934, on September 11, 2015, entitled ``Government Contractors, Prohibitions Against Pay Secrecy Policies and Actions.'' The DOL rule revises 41 CFR part 60-1. E.O. 11246, originally issued September 24, 1965, establishes nondiscrimination and affirmative action obligations in employment for Federal contractors and subcontractors. It prohibits employment discrimination because of race, color, religion, sex, sexual orientation, gender identity, or national origin. E.O. 13665 amends E.O. 11246 to provide for a uniform policy for the Federal Government to prohibit Federal contractors from discriminating against employees and job applicants who inquire about, discuss, or disclose their own compensation or the compensation of other employees or applicants. Also, the E.O. indicates that it promotes economy and efficiency in Federal Government procurement and supports enforcement of nondiscrimination and equal employment opportunity. II. Discussion and Analysis A. The DOL regulation implements E.O. 13665 by revising the equal opportunity clause to prohibit contractors from discharging, or in any manner discriminating against, any employee or applicant for employment because the employee or applicant inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. B. The FAR implements E.O. 11246 in FAR subpart 22.8, FAR clause 52.222-26, Equal Opportunity, and related clauses. This interim rule adds the new discrimination prohibition and incorporates the definitions ``compensation,'' ``compensation information,'' and ``essential job functions'' from the DOL final rule (41 CFR 60-1.3) within FAR subpart 22.8 and the clauses that are prescribed in FAR subpart 22.8 as follows: 1. 22.802, General. Inserts the new discrimination prohibition. 2. 52.222-26, Equal Opportunity. Inserts definitions for the terms ``compensation,'' ``compensation information,'' and ``essential job functions,'' and 52.222-26(c)(5), which prohibits contractors from discharging, or in any manner discriminating against, any employee or applicant for employment because the employee or applicant inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. FAR 52.222-26(c)(5) also requires the contractor to incorporate the new discrimination prohibition into existing employee manuals or handbooks and to post it. C. Conforming changes were made in the FAR clauses 52.212-5, 52.213-4, and 52.244-6. III. Executive Orders 12866 and 13563 E.O.s 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if [[Page 67733]] 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 a significant regulatory action and, therefore, was subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This interim rule is not a major rule under 5 U.S.C. 804. IV. Regulatory Flexibility Act DoD, GSA, and NASA do not expect this interim rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. However, an initial regulatory flexibility analysis (IRFA) has been prepared consistent with 5 U.S.C. 603. The analysis is summarized as follows: This interim rule is necessary to implement E.O. 13665, Non- Retaliation for Disclosure of Compensation Information (amending E.O. 11246, Equal Opportunity in Federal Employment) as implemented by the final rule issued by the DoL at 41 CFR part 60-1, published in the Federal Register at 80 FR 54934, on September 11, 2015. The objective of this rule is to provide for a uniform policy for the Federal Government to prohibit Federal contractors from discriminating against employees and job applicants who inquire about, discuss, or disclose their own compensation or the compensation of other employees or applicants. The rule will apply to all entities, both small and other than small. Based on the most current data available in the System for Award Management (SAM), there are 328,552 small contractor firms with fewer than 500 employees and 315,902 small contractor firms with less than $35.5 million in revenue. Thus, the total number of small contractor firms that may be impacted by the rule range from 315,902 to 328,552. Recordkeeping and reporting requirements of the rule involve regulatory familiarization and administrative costs associated with incorporating revised language into policies, instructions, notices to employees, and subcontracts. In implementing the additional prohibition, the rule requires that contractors and subcontractors disseminate the nondiscrimination provision, using language prescribed by the Director of the Office of Federal Contract Compliance Programs (OFCCP), including incorporating the nondiscrimination provision into existing employee manuals and handbooks and posting it electronically or in conspicuous places available to employees and applicants. An analysis of estimated costs of the regulatory changes was performed in the DOL final rule published in the Federal Register at 80 FR 54934, on September 11, 2015. DoL estimated the total cost of their final rule at $85.00 per company. The rule does not duplicate, overlap, or conflict with any other Federal rules. DoD, GSA, and NASA are not aware of any significant alternatives to the rule that would accomplish the stated objectives of the E.O. and the DOL implementing regulations. It is necessary for the rule to apply to small entities, because E.O. 11246, as amended, applies when a contractor has contracts or subcontracts with the Government in any 12-month period which have an aggregate total value (or can reasonably be expected to have an aggregate total value) exceeding $10,000 that are not completely exempted. Every effort has been made to minimize the burdens imposed on small entities. The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities. DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C 610 (FAR Case 2016-007), in correspondence. V. Paperwork Reduction Act The Paperwork Reduction Act (44 U.S.C chapter 35) does apply; however, the information collection authorization is under the DOL final rule issued by the Office of Federal Contract Compliance Programs (OFCCP) of the Department of Labor (DOL), which was published in the Federal Register at 80 FR 54934, on September 11, 2015, entitled ``Government Contractors, Prohibitions Against Pay Secrecy Policies and Actions,'' and is assigned OMB Control Number 1250-0008, Prohibitions Against Pay Secrecy Policies and Actions. This information collection expires December 31, 2018. The other information collection requirements cited at 1.106 that apply to FAR clause 52.225-26, assigned OMB control numbers 1250-0001 and 1250-0003, cover the general recordkeeping provisions of the laws administered by OFCCP. VI. Determination To Issue an Interim Rule A determination has been made under the authority of the Secretary of Defense (DoD), the Administrator of General Services (GSA), and the Administrator of the National Aeronautics and Space Administration (NASA) that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. It is important that the FAR is immediately revised to include the requirements of E.O. 13665, entitled ``Non-Retaliation for Disclosure of Compensation Information'' and the Department of Labor implementing regulation published in the Federal Register at 80 FR 54934, on September 11, 2015 that requires the Federal Government to establish a uniform policy that prohibits Federal contractors from discriminating against employees and job applicants who inquire about, discuss, or disclose their own compensation or the compensation of other employees or applicants. This action is necessary because DOL's final rule became effective on January 11, 2016, and section 6 of the E.O. expressly states that the order ``shall apply to contracts entered into on or after the effective date of rules promulgated by the Department of Labor.'' Issuance of an interim rule allows for the requirements to be included in solicitations and contracts immediately and puts contractors on clear notice of legal responsibilities that are already in effect. If the FAR rule is not issued as an interim rule, this new requirement will not be incorporated into contracts, and contractors will be put at unnecessary risk of non-compliance with the E.O. and labor rule. More importantly, this may unnecessarily delay action by contractors in providing the important protections for contractor employees that the E.O. and labor rule are designed to provide. However, pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), DoD, GSA, and NASA will consider public comments received in response to this interim rule in the formation of the final rule. List of Subjects in 48 CFR Parts 1, 22, and 52 Government procurement. Dated: September 19, 2016. William F. 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 parts 1, 22, and 52 as set forth below: 0 1. The authority citation for 48 CFR parts 1, 22, and 52 continues to read as follows: Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113. [[Page 67734]] PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM 1.106 [Amended] 0 2. Amend section 1.106 in the table by removing from FAR segment ``52.222-26'' the OMB control number ``1250-0003'' and adding ``1250- 0001, 1250-0003, and 1250-0008'' in its place. PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS 0 3. Amend section 22.802 by revising paragraph (a) to read as follows: 22.802 General. (a) Executive Order 11246, as amended, sets forth the Equal Opportunity clause and requires that all agencies-- (1) Include this clause in all nonexempt contracts and subcontracts (see 22.807); and (2) Act to ensure compliance with the clause and the regulations of the Secretary of Labor-- (i) To promote the full realization of equal employment opportunity for all persons, regardless of race, color, religion, sex, sexual orientation, gender identity, or national origin; and (ii) To prohibit contractors from discharging, or in any other manner discriminating against, any employee or applicant for employment because the employee or applicant inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This prohibition against discrimination does not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information. * * * * * 0 4. Amend section 22.809 by revising the introductory text to read as follows: 22.809 Enforcement. Upon written notification to the contracting officer, the Deputy Assistant Secretary may direct one or more of the following actions, as well as administrative sanctions and penalties, be taken against contractors found to be in violation of E.O. 11246, the regulations of the Secretary of Labor, or the applicable contract clauses: * * * * * PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 5. Amend section 52.212-5 by-- 0 a. Revising the date of the clause and paragraphs (b)(28) and (e)(1)(v); and 0 b. In Alternate II, revising the date of the alternate and paragraph (e)(1)(ii)(E). The revisions read as follows: 52.212-5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders--Commercial Items. * * * * * Contract Terms and Conditions Required to Implement Statutes or Executive Orders--Commercial Items (Sept 2016) * * * * * (b) * * * __(28) 52.222-26, Equal Opportunity (Sept 2016) (E.O. 11246). * * * * * (e)(1) * * * (v) 52.222-26, Equal Opportunity (Sept 2016) (E.O. 11246). * * * * * Alternate II (Sept 2016). * * * * * * * * (e)(1) * * * (ii) * * * (E) 52.222-26, Equal Opportunity (Sept 2016) (E.O. 11246). * * * * * 0 6. Amend section 52.213-4 by revising the date of the clause and paragraphs (a)(1)(iii) and (a)(2)(viii) to read as follows: 52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than Commercial Items). * * * * * Terms and Conditions-Simplified Acquisitions (Other than Commercial Items) (Sept 2016) (a) * * * (1) * * * (iii) 52.222-26, Equal Opportunity (Sept 2016) (E.O. 11246). * * * * * (2) * * * (viii) 52.244-6, Subcontracts for Commercial Items (Sept 2016). * * * * * 0 7. Amend section 52.222-26 by-- 0 a. Revising the date of the clause; 0 b. Adding to paragraph (a), in alphabetical order, the definitions ``Compensation'', ``Compensation information'', and ``Essential job functions''; 0 c. Redesignating paragraphs (c)(5) through (11) as paragraphs (c)(6) through (12), respectively; 0 d. Adding new paragraph (c)(5); 0 e. Removing from newly designated paragraph (c)(12) ``contracting officer'' and adding ``Director of OFCCP'' in its place; and 0 f. Removing from paragraph (d) ``41 CFR 60-1.1.'' and adding ``41 CFR part 60-1.'' in its place. The revision and additions read as follows: 52.222-26 Equal Opportunity. * * * * * Equal Opportunity (Sept 2016) (a) * * * Compensation means any payments made to, or on behalf of, an employee or offered to an applicant as remuneration for employment, including but not limited to salary, wages, overtime pay, shift differentials, bonuses, commissions, vacation and holiday pay, allowances, insurance and other benefits, stock options and awards, profit sharing, and retirement. Compensation information means the amount and type of compensation provided to employees or offered to applicants, including, but not limited to, the desire of the Contractor to attract and retain a particular employee for the value the employee is perceived to add to the Contractor's profit or productivity; the availability of employees with like skills in the marketplace; market research about the worth of similar jobs in the relevant marketplace; job analysis, descriptions, and evaluations; salary and pay structures; salary surveys; labor union agreements; and Contractor decisions, statements and policies related to setting or altering employee compensation. Essential job functions means the fundamental job duties of the employment position an individual holds. A job function may be considered essential if-- (1) The access to compensation information is necessary in order to perform that function or another routinely assigned business task; or (2) The function or duties of the position include protecting and maintaining the privacy of employee personnel records, including compensation information. * * * * * (c) * * * (5)(i) The Contractor shall not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This prohibition against discrimination does not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in [[Page 67735]] response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Contractor's legal duty to furnish information. (ii) The Contractor shall disseminate the prohibition on discrimination in paragraph (c)(5)(i) of this clause, using language prescribed by the Director of the Office of Federal Contract Compliance Programs (OFCCP), to employees and applicants by-- (A) Incorporation into existing employee manuals or handbooks; and (B) Electronic posting or by posting a copy of the provision in conspicuous places available to employees and applicants for employment. * * * * * 0 8. Amend section 52.244-6 by revising the date of the clause and paragraph (c)(1)(vi) to read as follows: 52.244-6 Subcontracts for Commercial Items. * * * * * Subcontracts for Commercial Items (Sept 2016) * * * * * (c)(1) * * * (vi) 52.222-26, Equal Opportunity (Sept 2016) (E.O. 11246). * * * * * [FR Doc. 2016-23196 Filed 9-29-16; 8:45 am] BILLING CODE 6820-EP-P
![67732 Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations
Dated: September 19, 2016. 2016–007, by any of the following It prohibits employment discrimination
William F. Clark, methods: because of race, color, religion, sex,
Director, Office of Government-wide • Regulations.gov: http:// sexual orientation, gender identity, or
Acquisition Policy, Office of Acquisition www.regulations.gov. Submit comments national origin. E.O. 13665 amends E.O.
Policy, Office of Government-wide Policy. via the Federal eRulemaking portal by 11246 to provide for a uniform policy
entering ‘‘FAR Case 2016–007’’. Select for the Federal Government to prohibit
Interim Rule Adopted as Final Without
the link ‘‘Comment Now’’ that Federal contractors from discriminating
Change
corresponds with ‘‘FAR Case 2016– against employees and job applicants
■ Accordingly, the interim rule 007’’. Follow the instructions provided who inquire about, discuss, or disclose
amending 48 CFR parts 1, 22, and 52, on the screen. Please include your their own compensation or the
which was published in the Federal name, company name (if any), and compensation of other employees or
Register at 80 FR 75908 on December 4, ‘‘FAR Case 2016–007’’ on your attached applicants. Also, the E.O. indicates that
2015, is adopted as a final rule without document. it promotes economy and efficiency in
change. • Mail: General Services Federal Government procurement and
[FR Doc. 2016–23195 Filed 9–29–16; 8:45 am] Administration, Regulatory Secretariat supports enforcement of
BILLING CODE 6820–EP–P
Division (MVCB), ATTN: Ms. Flowers, nondiscrimination and equal
1800 F Street NW., 2nd Floor, employment opportunity.
Washington, DC 20405–0001. II. Discussion and Analysis
DEPARTMENT OF DEFENSE Instructions: Please submit comments
only and cite ‘‘FAR Case 2016–007’’ in A. The DOL regulation implements
GENERAL SERVICES all correspondence related to this case. E.O. 13665 by revising the equal
ADMINISTRATION Comments received generally will be opportunity clause to prohibit
posted without change to http:// contractors from discharging, or in any
NATIONAL AERONAUTICS AND regulations.gov, including any personal manner discriminating against, any
SPACE ADMINISTRATION and/or business confidential employee or applicant for employment
information provided. To confirm because the employee or applicant
48 CFR Parts 1, 22, and 52 receipt of your comment(s), please inquired about, discussed, or disclosed
check www.regulations.gov, the compensation of the employee or
[FAC 2005–91; FAR Case 2016–007; Item applicant or another employee or
III; Docket No. 2016–0007; Sequence No. approximately two to three days after
1] submission to verify posting (except applicant.
allow 30 days for posting of comments B. The FAR implements E.O. 11246 in
RIN 9000–AN10 submitted by mail). FAR subpart 22.8, FAR clause 52.222–
26, Equal Opportunity, and related
Federal Acquisition Regulation: Non- FOR FURTHER INFORMATION CONTACT: Ms.
clauses. This interim rule adds the new
Retaliation for Disclosure of Zenaida Delgado, Procurement Analyst,
discrimination prohibition and
Compensation Information at 202–969–7207 for clarification of
incorporates the definitions
content. For information pertaining to
AGENCY: Department of Defense (DoD), ‘‘compensation,’’ ‘‘compensation
status or publication schedules, contact
General Services Administration (GSA), information,’’ and ‘‘essential job
the Regulatory Secretariat Division at
and National Aeronautics and Space functions’’ from the DOL final rule (41
202–501–4755. Please cite FAC 2005–
Administration (NASA). CFR 60–1.3) within FAR subpart 22.8
91, FAR Case 2016–007.
and the clauses that are prescribed in
ACTION: Interim rule. SUPPLEMENTARY INFORMATION: FAR subpart 22.8 as follows:
SUMMARY: DoD, GSA, and NASA are I. Background 1. 22.802, General. Inserts the new
issuing an interim rule amending the discrimination prohibition.
DoD, GSA, and NASA are issuing an 2. 52.222–26, Equal Opportunity.
Federal Acquisition Regulation (FAR) to interim rule amending the FAR to
implement Executive Order (E.O.), Inserts definitions for the terms
implement Executive Order (E.O.) ‘‘compensation,’’ ‘‘compensation
entitled ‘‘Non-Retaliation for Disclosure 13665, entitled ‘‘Non-Retaliation for
of Compensation Information,’’ and a information,’’ and ‘‘essential job
Disclosure of Compensation functions,’’ and 52.222–26(c)(5), which
final rule issued by the Department of Information.’’ The E.O. was signed April
Labor. prohibits contractors from discharging,
8, 2014, and was published in the or in any manner discriminating against,
DATES: Effective: September 30, 2016. Federal Register at 79 FR 20749, on any employee or applicant for
Applicability Date: This rule applies April 11, 2014. This interim rule is also employment because the employee or
to solicitations and contracts issued on implementing the final rule issued by applicant inquired about, discussed, or
or after the effective date of the FAR the Office of Federal Contract disclosed the compensation of the
rule. Contracting officers are expected to Compliance Programs (OFCCP) of the employee or applicant or another
work with their existing contractors and Department of Labor (DOL) to employee or applicant. FAR 52.222–
bilaterally modify their contracts, to the implement E.O. 13665. The DOL final 26(c)(5) also requires the contractor to
extent feasible, to include the amended rule was published in the Federal incorporate the new discrimination
clause at FAR 52.222–26, Equal Register at 80 FR 54934, on September prohibition into existing employee
Opportunity. See FAR 1.108(d). 11, 2015, entitled ‘‘Government manuals or handbooks and to post it.
asabaliauskas on DSK3SPTVN1PROD with RULES
Comment Date: Interested parties Contractors, Prohibitions Against Pay C. Conforming changes were made in
should submit written comments to the Secrecy Policies and Actions.’’ The DOL the FAR clauses 52.212–5, 52.213–4,
Regulatory Secretariat Division at one of rule revises 41 CFR part 60–1. and 52.244–6.
the addresses shown below on or before E.O. 11246, originally issued
November 29, 2016 to be considered in September 24, 1965, establishes III. Executive Orders 12866 and 13563
the formation of the final rule. nondiscrimination and affirmative E.O.s 12866 and 13563 direct agencies
ADDRESSES: Submit comments action obligations in employment for to assess all costs and benefits of
identified by FAC 2005–91, FAR Case Federal contractors and subcontractors. available regulatory alternatives and, if
VerDate Sep<11>2014 22:05 Sep 29, 2016 Jkt 238001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\30SER4.SGM 30SER4](https://thefederalregister.org/doc/81_FR_67922/page/1.svg)
![67734 Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations
PART 1—FEDERAL ACQUISITION be taken against contractors found to be ■ c. Redesignating paragraphs (c)(5)
REGULATIONS SYSTEM in violation of E.O. 11246, the through (11) as paragraphs (c)(6)
regulations of the Secretary of Labor, or through (12), respectively;
1.106 [Amended] the applicable contract clauses: ■ d. Adding new paragraph (c)(5);
■ 2. Amend section 1.106 in the table by * * * * * ■ e. Removing from newly designated
removing from FAR segment ‘‘52.222– paragraph (c)(12) ‘‘contracting officer’’
26’’ the OMB control number ‘‘1250– PART 52—SOLICITATION PROVISIONS and adding ‘‘Director of OFCCP’’ in its
0003’’ and adding ‘‘1250–0001, 1250– AND CONTRACT CLAUSES place; and
0003, and 1250–0008’’ in its place. ■ f. Removing from paragraph (d) ‘‘41
■ 5. Amend section 52.212–5 by— CFR 60–1.1.’’ and adding ‘‘41 CFR part
PART 22—APPLICATION OF LABOR ■ a. Revising the date of the clause and 60–1.’’ in its place.
LAWS TO GOVERNMENT paragraphs (b)(28) and (e)(1)(v); and The revision and additions read as
ACQUISITIONS ■ b. In Alternate II, revising the date of follows:
the alternate and paragraph (e)(1)(ii)(E).
■ 3. Amend section 22.802 by revising The revisions read as follows: 52.222–26 Equal Opportunity.
paragraph (a) to read as follows: * * * * *
52.212–5 Contract Terms and Conditions
22.802 General. Required to Implement Statutes or Equal Opportunity (Sept 2016)
(a) Executive Order 11246, as Executive Orders—Commercial Items. (a) * * *
amended, sets forth the Equal * * * * * Compensation means any payments made
Opportunity clause and requires that all to, or on behalf of, an employee or offered to
agencies— Contract Terms and Conditions Required to an applicant as remuneration for
(1) Include this clause in all Implement Statutes or Executive Orders— employment, including but not limited to
Commercial Items (Sept 2016) salary, wages, overtime pay, shift
nonexempt contracts and subcontracts
* * * * * differentials, bonuses, commissions, vacation
(see 22.807); and and holiday pay, allowances, insurance and
(2) Act to ensure compliance with the (b) * * *
ll(28) 52.222–26, Equal Opportunity other benefits, stock options and awards,
clause and the regulations of the profit sharing, and retirement.
(Sept 2016) (E.O. 11246).
Secretary of Labor— Compensation information means the
(i) To promote the full realization of * * * * * amount and type of compensation provided
equal employment opportunity for all (e)(1) * * *
to employees or offered to applicants,
(v) 52.222–26, Equal Opportunity (Sept
persons, regardless of race, color, 2016) (E.O. 11246).
including, but not limited to, the desire of the
religion, sex, sexual orientation, gender Contractor to attract and retain a particular
identity, or national origin; and * * * * * employee for the value the employee is
Alternate II (Sept 2016). * * * perceived to add to the Contractor’s profit or
(ii) To prohibit contractors from
discharging, or in any other manner * * * * * productivity; the availability of employees
(e)(1) * * * with like skills in the marketplace; market
discriminating against, any employee or research about the worth of similar jobs in
(ii) * * *
applicant for employment because the the relevant marketplace; job analysis,
(E) 52.222–26, Equal Opportunity (Sept
employee or applicant inquired about, 2016) (E.O. 11246). descriptions, and evaluations; salary and pay
discussed, or disclosed the structures; salary surveys; labor union
compensation of the employee or * * * * * agreements; and Contractor decisions,
applicant or another employee or ■ 6. Amend section 52.213–4 by statements and policies related to setting or
applicant. This prohibition against revising the date of the clause and altering employee compensation.
discrimination does not apply to paragraphs (a)(1)(iii) and (a)(2)(viii) to Essential job functions means the
instances in which an employee who read as follows: fundamental job duties of the employment
position an individual holds. A job function
has access to the compensation 52.213–4 Terms and Conditions— may be considered essential if—
information of other employees or Simplified Acquisitions (Other Than (1) The access to compensation
applicants as a part of such employee’s Commercial Items). information is necessary in order to perform
essential job functions discloses the * * * * * that function or another routinely assigned
compensation of such other employees business task; or
or applicants to individuals who do not Terms and Conditions–Simplified (2) The function or duties of the position
otherwise have access to such Acquisitions (Other than Commercial Items) include protecting and maintaining the
information, unless such disclosure is in (Sept 2016) privacy of employee personnel records,
response to a formal complaint or including compensation information.
(a) * * *
charge, in furtherance of an * * * * *
(1) * * * (c) * * *
investigation, proceeding, hearing, or (iii) 52.222–26, Equal Opportunity
action, including an investigation (5)(i) The Contractor shall not discharge or
(Sept 2016) (E.O. 11246). in any other manner discriminate against any
conducted by the employer, or is employee or applicant for employment
* * * * *
consistent with the contractor’s legal because such employee or applicant has
duty to furnish information. (2) * * *
inquired about, discussed, or disclosed the
(viii) 52.244–6, Subcontracts for
* * * * * compensation of the employee or applicant
Commercial Items (Sept 2016). or another employee or applicant. This
■ 4. Amend section 22.809 by revising
asabaliauskas on DSK3SPTVN1PROD with RULES
* * * * * prohibition against discrimination does not
the introductory text to read as follows:
■ 7. Amend section 52.222–26 by— apply to instances in which an employee
22.809 Enforcement. ■ a. Revising the date of the clause;
who has access to the compensation
information of other employees or applicants
Upon written notification to the ■ b. Adding to paragraph (a), in
as a part of such employee’s essential job
contracting officer, the Deputy Assistant alphabetical order, the definitions functions discloses the compensation of such
Secretary may direct one or more of the ‘‘Compensation’’, ‘‘Compensation other employees or applicants to individuals
following actions, as well as information’’, and ‘‘Essential job who do not otherwise have access to such
administrative sanctions and penalties, functions’’; information, unless such disclosure is in
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![Federal Register / Vol. 81, No. 190 / Friday, September 30, 2016 / Rules and Regulations 67735
response to a formal complaint or charge, in economically disadvantaged women- Women-Owned Small Business
furtherance of an investigation, proceeding, owned small business concerns and to Program, in order to implement
hearing, or action, including an investigation women-owned small business concerns paragraph (a)(3) of section 825 of the
conducted by the employer, or is consistent eligible under the Women-Owned Small NDAA for FY 2015. The Federal
with the Contractor’s legal duty to furnish
information.
Business (WOSB) Program. Acquisition Regulatory Council,
(ii) The Contractor shall disseminate the DATES: Effective: September 30, 2016. pursuant to the authority granted in 41
prohibition on discrimination in paragraph FOR FURTHER INFORMATION CONTACT: Ms. U.S.C. 1905 and 1906, and the
(c)(5)(i) of this clause, using language Mahruba Uddowla, Procurement Administrator, Office of Federal
prescribed by the Director of the Office of Analyst, at 703–605–2868 for Procurement Policy, pursuant to the
Federal Contract Compliance Programs authority granted in 41 U.S.C 1907, have
(OFCCP), to employees and applicants by—
clarification of content. For information
pertaining to status or publication determined that the application of this
(A) Incorporation into existing employee statutory authority to contracts at or
manuals or handbooks; and schedules, contact the Regulatory
Secretariat Division at 202–501–4755. below the simplified acquisition
(B) Electronic posting or by posting a copy
of the provision in conspicuous places Please cite FAC 2005–91, FAR Case threshold and to contracts for
available to employees and applicants for 2015–032. commercial items and commercially
employment. available off-the-shelf items, is in the
SUPPLEMENTARY INFORMATION:
* * * * * best interests of the Federal
I. Background Government.
■ 8. Amend section 52.244–6 by
DoD, GSA, and NASA published an IV. Executive Orders 12866 and 13563
revising the date of the clause and
interim rule in the Federal Register at
paragraph (c)(1)(vi) to read as follows: Executive Orders (E.O.s) 12866 and
80 FR 81888 on December 31, 2015, to
implement regulatory changes that the 13563 direct agencies to assess all costs
52.244–6 Subcontracts for Commercial
Items. SBA has made in its final rule published and benefits of available regulatory
in the Federal Register at 80 FR 55019, alternatives and, if regulation is
* * * * * necessary, to select regulatory
on September 14, 2015, concerning sole
Subcontracts for Commercial Items (Sept source award authority under the WOSB approaches that maximize net benefits
2016) (including potential economic,
Program. SBA’s final rule implements
the statutory requirements of paragraph environmental, public health and safety
* * * * *
(a)(3) of section 825 of the Carl Levin effects, distributive impacts, and
(c)(1) * * *
(vi) 52.222–26, Equal Opportunity and Howard P. ‘‘Buck’’ McKeon equity). E.O. 13563 emphasizes the
(Sept 2016) (E.O. 11246). National Defense Authorization Act importance of quantifying both costs
(NDAA) for Fiscal Year (FY) 2015, and benefits, of reducing costs, of
* * * * * harmonizing rules, and of promoting
[FR Doc. 2016–23196 Filed 9–29–16; 8:45 am] Public Law 113–291, granting
contracting officers the authority to flexibility. This is not a significant
BILLING CODE 6820–EP–P
award sole source contracts to regulatory action and, therefore, was not
economically disadvantaged women- subject to review under section 6(b) of
owned small business (EDWOSB) E.O. 12866, Regulatory Planning and
DEPARTMENT OF DEFENSE
concerns and to WOSB concerns eligible Review, dated September 30, 1993. This
GENERAL SERVICES under the WOSB Program. Four rule is not a major rule under 5 U.S.C.
ADMINISTRATION respondents submitted comments on the 804.
interim rule. V. Regulatory Flexibility Act
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION II. Discussion and Analysis DoD, GSA, and NASA have prepared
The Civilian Agency Acquisition a Final Regulatory Flexibility Analysis
48 CFR Parts 2, 4, 6, 18, 19, and 52 Council and the Defense Acquisition (FRFA) consistent with the Regulatory
Regulations Council (the Councils) Flexibility Act 5 U.S.C. 601, et seq. The
[FAC 2005–91; FAR Case 2015–032; Item FRFA is summarized as follows:
IV; Docket No. 2015–0032; Sequence No. reviewed the public comments in the
1] development of the final rule. All four This rule implements paragraph (a)(3) of
respondents expressed support of the section 825 of the Carl Levin and Howard P.
RIN 9000–AN13 interim rule. Therefore, no further ‘Buck’ McKeon National Defense
change to the interim rule is required as Authorization Act for Fiscal Year 2015,
Federal Acquisition Regulation; Sole Public Law 113–291, (Fiscal Year 2015
a result of the public comments, but
Source Contracts for Women-Owned NDAA). Section 825 of the Fiscal Year 2015
there is a minor edit to 19.1505(a)(1).
Small Businesses NDAA included language granting
III. Applicability to Contracts at or contracting officers the authority to award
AGENCY: Department of Defense (DoD), sole source contracts to Women-Owned
Below the Simplified Acquisition
General Services Administration (GSA), Small Businesses (WOSBs) and Economically
Threshold and for Commercial Items,
and the National Aeronautics and Space Disadvantaged Women-Owned Small
Including Commercially Available Off-
Administration (NASA). Businesses (EDWOSBs) under the WOSB
the-Shelf Items Program. The purpose of this rule is to
ACTION: Final rule.
This rule adopts as final the finalize the procedures whereby Federal
asabaliauskas on DSK3SPTVN1PROD with RULES
SUMMARY: DoD, GSA, and NASA have amendments to the FAR clauses at agencies may award sole source contracts to
adopted as final, with a minor edit, an 52.219–29, Notice of Set-Aside for, or WOSBs and EDWOSBs eligible under the
interim rule amending the Federal Sole Source Award to, Economically WOSB Program. The rule provides an
additional tool for Federal agencies to ensure
Acquisition Regulation (FAR) to Disadvantaged Women-owned Small that WOSBs have an equal opportunity to
implement regulatory changes made by Business Concerns, and 52.219–30, participate in Federal contracting and
the Small Business Administration Notice of Set-Aside for, or Sole Source ensures consistency among SBA’s
(SBA) that provide for authority to Award to, Women-Owned Small socioeconomic small business contracting
award sole source contracts to Business Concerns Eligible Under the programs.
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Document Created: 2018-02-09 13:33:47
Document Modified: 2018-02-09 13:33:47
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Interim rule. | |
| Dates | Effective: September 30, 2016. | |
| Contact | Ms. Zenaida Delgado, Procurement Analyst, at 202-969-7207 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAC 2005-91, FAR Case 2016-007. | |
| FR Citation | 81 FR 67732 | |
| RIN Number | 9000-AN10 | |
| CFR Citation | 48
CFR
1 48 CFR 22 48 CFR 52 |
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