83 FR 42570 - Federal Acquisition Regulation: Non-Retaliation for Disclosure of Compensation Information

DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 83, Issue 163 (August 22, 2018)

Page Range		42570-42571
FR Document		2018-17826

DoD, GSA, and NASA adopted as final, without change, an interim rule amending the Federal Acquisition Regulation (FAR) to implement Executive Order (E.O.), Non-Retaliation for Disclosure of Compensation Information. The interim rule also implemented a final rule issued by the Department of Labor.

Federal Register, Volume 83 Issue 163 (Wednesday, August 22, 2018)

[Federal Register Volume 83, Number 163 (Wednesday, August 22, 2018)]
[Rules and Regulations]
[Pages 42570-42571]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-17826]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 22, and 52

[FAC 2005-100; FAR Case 2016-007; Item II; Docket No. 2016-0007; 
Sequence No. 1]
RIN 9000-AN10


Federal Acquisition Regulation: Non-Retaliation for Disclosure of 
Compensation Information

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

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA adopted as final, without change, an 
interim rule amending the Federal Acquisition Regulation (FAR) to 
implement Executive Order (E.O.), Non-Retaliation for Disclosure of 
Compensation Information. The interim rule also implemented a final 
rule issued by the Department of Labor.

DATES: Effective: August 22, 2018.

FOR FURTHER INFORMATION CONTACT: Ms. Zenaida Delgado, Procurement 
Analyst, at 202-969-7207 for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat Division at 202-501-4755. Please cite FAC 2005-100, FAR 
Case 2016-007.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA published an interim rule in the Federal 
Register at 81 FR 67732 on September 30, 2016, to implement E.O. 13665, 
Non-retaliation for Disclosure of Compensation Information. The E.O. 
was signed April 8, 2014, and was published in the Federal Register at 
79 FR 20749 on April 11, 2014. E.O. 13665 amends E.O. 11246 to provide 
for a uniform policy for the Federal Government to prohibit Federal 
contractors from discriminating against employees and job applicants 
who inquire about, discuss, or disclose their own compensation or the 
compensation of other employees or applicants. The interim FAR rule 
also implemented the final rule issued by the Office of Federal 
Contract Compliance Programs (OFCCP) of the Department of Labor (DOL) 
to implement E.O. 13665. The DOL final rule, entitled ``Government 
Contractors, Prohibitions Against Pay Secrecy Policies and Actions'', 
was published in the Federal Register at 80 FR 54934, on September 11, 
2015. The DOL rule revises 41 CFR part 60-1. Two respondents submitted 
comments on the interim FAR rule.

II. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the public comments in the 
development of the final rule. A discussion of the comments is provided 
as follows:

A. Summary of Significant Changes

    There are no changes to the interim rule.

B. Analysis of Public Comments

    Comment: Both respondents strongly supported the interim FAR rule. 
Both respondents stated that the interim rule is necessary to bring an 
end to pay secrecy policies and practices that perpetuate 
discrimination, including the

[[Page 42571]]

gender pay gap. The respondents also presented rationale as to why the 
interim rule will benefit businesses, individual workers, and the 
economy.
    Response: Noted.

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563, Improving Regulation and Regulatory Review, emphasizes the 
importance of quantifying both costs and benefits, of reducing costs, 
of harmonizing rules, and of promoting flexibility. This is not a 
significant regulatory action and, therefore, was not subject to review 
under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated 
September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

IV. Executive Order 13771

    This rule is not subject to E.O. 13771, Reducing Regulation and 
Controlling Regulatory Costs, because this rule is not a significant 
regulatory action under E.O. 12866.

V. Regulatory Flexibility Act

    DoD, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601 et seq. The FRFA is summarized as follows:

    DoD, GSA, and NASA are converting to a final rule, without 
change, an interim rule that amended the Federal Acquisition 
Regulation (FAR) to implement Executive Order (E.O.) 13665, Non-
Retaliation for Disclosure of Compensation Information. E.O. 13665 
amended E.O. 11246, Equal Opportunity in Federal Employment. The 
interim rule also implemented a final rule issued by the Department 
of Labor (DOL) at 41 CFR part 60-1, published in the Federal 
Register at 80 FR 54934, on September 11, 2015.
    The objective of this rule is to provide for a uniform policy 
for the Federal Government to prohibit Federal contractors from 
discriminating against employees and job applicants who inquire 
about, discuss, or disclose their own compensation or the 
compensation of other employees or applicants.
    No public comments were received in response to the initial 
regulatory flexibility analysis.
    The rule will apply to all entities, both small and other than 
small. Based on the most current System for Award Management data 
available, defining small as fewer than 500 employees, then there 
are 328,552 small contractor firms. Defining small as firms with 
less than $35.5 million in revenue, then there are 315,902 small 
contractor firms. Thus, the total number of small contractor firms 
that may be impacted by the rule range from 315,902 to 328,552.
    Recordkeeping and reporting requirements of the interim rule 
involved regulatory familiarization and administrative costs 
associated with incorporating revised language into policies, 
instructions, notices to employees, and subcontracts. In 
implementing the additional prohibition, the interim rule required 
that contractors and subcontractors disseminate the 
nondiscrimination provision, using language prescribed by the 
Director of the Office of Federal Contract Compliance Programs 
(OFCCP), including incorporating the nondiscrimination provision 
into existing employee manuals and handbooks and posting it 
electronically or in conspicuous places available to employees and 
applicants. An analysis of estimated costs of the regulatory changes 
was performed in the DOL final rule published in the Federal 
Register at 80 FR 54934, on September 11, 2015. However, this final 
rule does not have any impact on small entities, because the interim 
rule has already been in effect since September 30, 2016, and the 
final rule does not make any changes to the interim rule.
    DoD, GSA, and NASA are not aware of any significant alternatives 
to the rule that would accomplish the stated objectives of the E.O. 
and the DOL implementing regulations.
    It is necessary for the rule to apply to small entities, because 
E.O. 11246, as amended, applies to all contracts above $10,000 that 
are not completely exempted. Every effort has been made to minimize 
the burdens imposed.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat Division. The Regulatory Secretariat Division 
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of 
the Small Business Administration.

VI. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply; 
however, the information collection authorization is under the DOL 
final rule issued by the OFCCP of the DOL, which was published in the 
Federal Register at 80 FR 54934, on September 11, 2015, entitled 
``Government Contractors, Prohibitions Against Pay Secrecy Policies and 
Actions'', and is assigned Office of Management and Budget (OMB) 
Control Number 1250-0008. This information collection expires December 
31, 2018. The other information collection requirements cited at 1.106 
that apply to FAR clause 52.222-26, assigned OMB control numbers 1250-
0001 and 1250-0003, cover the general recordkeeping provisions of the 
laws administered by OFCCP.

List of Subjects in 48 CFR Parts 1, 22, and 52

    Government procurement.

    Dated: July 31, 2018.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

Interim Rule Adopted as Final Without Change

0
Accordingly, the interim rule amending 48 CFR parts 1, 22, and 52, 
which was published in the Federal Register at 81 FR 67732 on September 
30, 2016, is adopted as a final rule without change.

[FR Doc. 2018-17826 Filed 8-21-18; 8:45 am]
BILLING CODE 6820-EP-P

42570 Federal Register / Vol. 83, No. 163 / Wednesday, August 22, 2018 / Rules and Regulations

Standards Act, this rule applies when the Interested parties may obtain a copy Acquisition Regulation (FAR) to
contract exceeds the micro-purchase of the FRFA from the Regulatory implement Executive Order (E.O.), Non-
threshold, as defined in FAR 2.101. When Secretariat Division. The Regulatory Retaliation for Disclosure of
performance is in part within and in part
outside the United States, the rule applies to
Secretariat Division has submitted a Compensation Information. The interim
the part of the contract or subcontract copy of the FRFA to the Chief Counsel rule also implemented a final rule
performed within the United States. Data for Advocacy of the Small Business issued by the Department of Labor.
available through the Federal Procurement Administration. DATES: Effective: August 22, 2018.
Data System (FPDS) for Fiscal Year 2015,
VI. Paperwork Reduction Act FOR FURTHER INFORMATION CONTACT: Ms.
reveals contracts were awarded to 18,874
unique small business vendors for services, Zenaida Delgado, Procurement Analyst,
The Paperwork Reduction Act (44
which contained the FAR clause at 52.222– at 202–969–7207 for clarification of
U.S.C. Chapter 35) applies. However,
41, Service Contract Labor Standards. content. For information pertaining to
the information collection requirements
Additionally, contracts were awarded to status or publication schedules, contact
6,753 unique small business vendors for to the paperwork burden were
the Regulatory Secretariat Division at
construction, which contained the FAR previously approved for the DOL
202–501–4755. Please cite FAC 2005–
clause at 52.222–6, Construction Wage Rate regulations under OMB Control
100, FAR Case 2016–007.
Requirements, for a total of 25,627 unique Numbers 1235–0018, Records to be kept
small businesses. by Employers—Fair Labor Standards SUPPLEMENTARY INFORMATION:
The DOL final rule identifies records to be Act, 1235–0021, Employment
kept by all firms, including small entities (29 I. Background
Information Form, and 1235–0029,
CFR 13.25). Some records are already DoD, GSA, and NASA published an
required under the Fair Labor Standards Act, Government Contractor Paid Sick Leave.
interim rule in the Federal Register at
Service Contract Labor Standards statute, the List of Subjects in 48 CFR Parts 1, 11, 81 FR 67732 on September 30, 2016, to
Wage Rate Requirements (Construction) 22, and 52
statute, and their governing regulations. DOL implement E.O. 13665, Non-retaliation
noted in their final rule (81 FR 67598 at Government procurement. for Disclosure of Compensation
67669) that OMB assigned control number Information. The E.O. was signed April
Dated: July 31, 2018.
1235–0029 for the recordkeeping 8, 2014, and was published in the
requirements related to paid sick leave. The William F. Clark, Federal Register at 79 FR 20749 on
information collection requirement under Director, Office of Government-wide April 11, 2014. E.O. 13665 amends E.O.
1235–0029 includes recordkeeping and Acquisition Policy, Office of Acquisition 11246 to provide for a uniform policy
regulatory familiarization. Policy, Office of Government-wide Policy.
Regarding initial implementation, DOL
for the Federal Government to prohibit
assumed firms that need to create a sick leave Interim Rule Adopted as Final Without Federal contractors from discriminating
policy will each spend 10 hours of time Change against employees and job applicants
developing this policy, regardless of the who inquire about, discuss, or disclose
number of employees, and firms with a ■ Accordingly, the interim rule their own compensation or the
program in place will spend one hour, amending 48 CFR parts 1, 11, 22, and compensation of other employees or
regardless of the number of employees. DOL 52 which was published in the Federal applicants. The interim FAR rule also
also stated in its final rule that ‘‘Transfers Register at 81 FR 91627 on December implemented the final rule issued by the
from small contractors and costs to small 16, 2016, is adopted as a final rule
contractors in Year 1 are less than 0.02
Office of Federal Contract Compliance
without change. Programs (OFCCP) of the Department of
percent of revenues on average and are no
more than 0.17 percent in any industry’’. [FR Doc. 2018–17824 Filed 8–21–18; 8:45 am] Labor (DOL) to implement E.O. 13665.
Therefore, according to DOL its final rule BILLING CODE 6820–EP–P The DOL final rule, entitled
would not have a significant impact on small ‘‘Government Contractors, Prohibitions
businesses. This FAR rule finalizes the Against Pay Secrecy Policies and
interim rule without change and neither DEPARTMENT OF DEFENSE Actions’’, was published in the Federal
increases nor decreases the cost of the Register at 80 FR 54934, on September
interim rule (81 FR 91627), which has been GENERAL SERVICES 11, 2015. The DOL rule revises 41 CFR
in effect since January 1, 2017. ADMINISTRATION
There are no known significant alternatives part 60–1. Two respondents submitted
to the rule that would accomplish the stated comments on the interim FAR rule.
NATIONAL AERONAUTICS AND
objectives of the E.O. and DOL regulation. In II. Discussion and Analysis
its final rule, DOL introduced several
SPACE ADMINISTRATION
changes and clarifications that may ease the The Civilian Agency Acquisition
compliance burden. For instance, DOL 48 CFR Parts 1, 22, and 52 Council and the Defense Acquisition
provided greater detail and clarity about how [FAC 2005–100; FAR Case 2016–007; Item Regulations Council (the Councils)
companies with paid time off policies can II; Docket No. 2016–0007; Sequence No. 1] reviewed the public comments in the
use those policies to satisfy their obligations
under the E.O. In addition, if a collective
development of the final rule. A
RIN 9000–AN10
bargaining agreement (CBA) ratified before discussion of the comments is provided
September 30, 2016, applies to an employee’s Federal Acquisition Regulation: Non- as follows:
work performed on or in connection with a Retaliation for Disclosure of A. Summary of Significant Changes
covered contract and provides at least 56 Compensation Information
hours of paid sick time each year, the There are no changes to the interim
employee will be exempted from the AGENCY: Department of Defense (DoD), rule.
requirements of the E.O. and 29 CFR part 13 General Services Administration (GSA),
until CBA termination or January 1, 2020, B. Analysis of Public Comments
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and National Aeronautics and Space
whichever is earlier. Comment: Both respondents strongly
Administration (NASA).
The rule was also modified to allow
employers to meet the requirements of this ACTION: Final rule. supported the interim FAR rule. Both
rule through multiemployer plans or other respondents stated that the interim rule
funds, plans, or programs. This may ease the SUMMARY: DoD, GSA, and NASA is necessary to bring an end to pay
burden for those employers in industries adopted as final, without change, an secrecy policies and practices that
with transitory or mobile workforces. interim rule amending the Federal perpetuate discrimination, including the

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Federal Register / Vol. 83, No. 163 / Wednesday, August 22, 2018 / Rules and Regulations 42571

gender pay gap. The respondents also contractor firms. Defining small as firms with List of Subjects in 48 CFR Parts 1, 22,
presented rationale as to why the less than $35.5 million in revenue, then there and 52
interim rule will benefit businesses, are 315,902 small contractor firms. Thus, the
total number of small contractor firms that Government procurement.
individual workers, and the economy.
may be impacted by the rule range from Dated: July 31, 2018.
Response: Noted. 315,902 to 328,552. William F. Clark,
III. Executive Orders 12866 and 13563 Recordkeeping and reporting requirements
of the interim rule involved regulatory Director, Office of Government-wide
Executive Orders (E.O.s) 12866 and familiarization and administrative costs Acquisition Policy, Office of Acquisition
13563 direct agencies to assess all costs associated with incorporating revised Policy, Office of Government-wide Policy.
and benefits of available regulatory language into policies, instructions, notices Interim Rule Adopted as Final Without
alternatives and, if regulation is to employees, and subcontracts. In Change
necessary, to select regulatory implementing the additional prohibition, the
approaches that maximize net benefits interim rule required that contractors and ■ Accordingly, the interim rule
(including potential economic, subcontractors disseminate the amending 48 CFR parts 1, 22, and 52,
environmental, public health and safety nondiscrimination provision, using language which was published in the Federal
prescribed by the Director of the Office of Register at 81 FR 67732 on September
effects, distributive impacts, and
Federal Contract Compliance Programs
equity). E.O. 13563, Improving 30, 2016, is adopted as a final rule
(OFCCP), including incorporating the
Regulation and Regulatory Review, nondiscrimination provision into existing without change.
emphasizes the importance of employee manuals and handbooks and [FR Doc. 2018–17826 Filed 8–21–18; 8:45 am]
quantifying both costs and benefits, of posting it electronically or in conspicuous BILLING CODE 6820–EP–P
reducing costs, of harmonizing rules, places available to employees and applicants.
and of promoting flexibility. This is not An analysis of estimated costs of the
a significant regulatory action and, regulatory changes was performed in the DEPARTMENT OF DEFENSE
therefore, was not subject to review DOL final rule published in the Federal
under section 6(b) of E.O. 12866, Register at 80 FR 54934, on September 11, GENERAL SERVICES
2015. However, this final rule does not have ADMINISTRATION
Regulatory Planning and Review, dated
any impact on small entities, because the
September 30, 1993. This rule is not a interim rule has already been in effect since
major rule under 5 U.S.C. 804. NATIONAL AERONAUTICS AND
September 30, 2016, and the final rule does
not make any changes to the interim rule. SPACE ADMINISTRATION
IV. Executive Order 13771
DoD, GSA, and NASA are not aware of any
This rule is not subject to E.O. 13771, significant alternatives to the rule that would 48 CFR Parts 2, 4, 5, 6, 7, 8, 9, 14, 16,
Reducing Regulation and Controlling accomplish the stated objectives of the E.O. 17, 18, 19, 22, 23, 25, 28, 31, 36, 41, 49,
Regulatory Costs, because this rule is and the DOL implementing regulations. 52, and 53
not a significant regulatory action under It is necessary for the rule to apply to small
entities, because E.O. 11246, as amended, [FAC 2005–100; Item III; Docket No. 2018–
E.O. 12866. 0002; Sequence No. 1]
applies to all contracts above $10,000 that are
V. Regulatory Flexibility Act not completely exempted. Every effort has
been made to minimize the burdens imposed. Federal Acquisition Regulation;
DoD, GSA, and NASA have prepared Technical Amendments
a Final Regulatory Flexibility Analysis Interested parties may obtain a copy
(FRFA) consistent with the Regulatory of the FRFA from the Regulatory AGENCY: Department of Defense (DoD),
Flexibility Act, 5 U.S.C. 601 et seq. The Secretariat Division. The Regulatory General Services Administration (GSA),
FRFA is summarized as follows: Secretariat Division has submitted a and National Aeronautics and Space
DoD, GSA, and NASA are converting to a copy of the FRFA to the Chief Counsel Administration (NASA).
final rule, without change, an interim rule for Advocacy of the Small Business ACTION: Final rule.
that amended the Federal Acquisition Administration.
Regulation (FAR) to implement Executive SUMMARY: This document makes
Order (E.O.) 13665, Non-Retaliation for VI. Paperwork Reduction Act amendments to the Federal Acquisition
Disclosure of Compensation Information. Regulation (FAR) in order to make
E.O. 13665 amended E.O. 11246, Equal The Paperwork Reduction Act (44 editorial changes and to update web
Opportunity in Federal Employment. The U.S.C. chapter 35) does apply; however, links.
interim rule also implemented a final rule the information collection authorization
issued by the Department of Labor (DOL) at is under the DOL final rule issued by DATES: Effective: August 22, 2018.
41 CFR part 60–1, published in the Federal the OFCCP of the DOL, which was FOR FURTHER INFORMATION CONTACT: Ms.
Register at 80 FR 54934, on September 11, published in the Federal Register at 80 Lois Mandell, Regulatory Secretariat
2015. FR 54934, on September 11, 2015, Division (MVCB), 1800 F Street NW,
The objective of this rule is to provide for 2nd Floor, Washington, DC 20405, 202–
a uniform policy for the Federal Government
entitled ‘‘Government Contractors,
to prohibit Federal contractors from Prohibitions Against Pay Secrecy 501–4755. Please cite FAC 2005–100,
discriminating against employees and job Policies and Actions’’, and is assigned Technical Amendments.
applicants who inquire about, discuss, or Office of Management and Budget SUPPLEMENTARY INFORMATION: In order to
disclose their own compensation or the (OMB) Control Number 1250–0008. This update certain elements in 48 CFR parts
compensation of other employees or information collection expires 2, 4, 5, 6, 7, 8, 9, 14, 16, 17, 18, 19, 22,
applicants. December 31, 2018. The other 23, 25, 28, 31, 36, 41, 49, 52, and 53 this
No public comments were received in
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information collection requirements document makes editorial changes to
response to the initial regulatory flexibility cited at 1.106 that apply to FAR clause
analysis.
the FAR.
The rule will apply to all entities, both
52.222–26, assigned OMB control
numbers 1250–0001 and 1250–0003, List of Subjects in 48 CFR Parts 2, 4, 5,
small and other than small. Based on the 6, 7, 8, 9, 14, 16, 17, 18, 19, 22, 23, 25,
most current System for Award Management cover the general recordkeeping
provisions of the laws administered by 28, 31, 36, 41, 49, 52, and 53
data available, defining small as fewer than
500 employees, then there are 328,552 small OFCCP. Government procurement.

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Document Created: 2018-08-22 00:38:17
Document Modified: 2018-08-22 00:38:17

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		Final rule.
Dates		Effective: August 22, 2018.
Contact		Ms. Zenaida Delgado, Procurement Analyst, at 202-969-7207 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAC 2005-100, FAR Case 2016-007.
FR Citation		83 FR 42570
RIN Number		9000-AN10
CFR Citation		48 CFR 1 48 CFR 22 48 CFR 52

83 FR 42570 - Federal Acquisition Regulation: Non-Retaliation for Disclosure of Compensation Information

DEPARTMENT OF DEFENSEGENERAL SERVICES ADMINISTRATIONNATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 83, Issue 163 (August 22, 2018)

DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION