Federal Acquisition Regulation: Non-Retaliation for Disclosure of Compensation Information, 42570-42571 [2018-17826]

Agencies

• DEPARTMENT OF DEFENSE
• General Services Administration
• National Aeronautics and Space Administration

[Federal Register Volume 83, Number 163 (Wednesday, August 22, 2018)]
[Rules and Regulations]
[Pages 42570-42571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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]
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