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Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Proposed Rules
United States means the United States and all executive departments, independent establishments, administrative agencies, and instrumentalities of the United States, including corporations of which all or substantially all of the stock is owned by the United States, by the foregoing departments, establishments, agencies, instrumentalities, and including nonappropriated fund instrumentalities.
When used in a geographic sense, the United States means the 50 States, the District of Columbia, Puerto Rico, the Virgin Islands, Outer Continental Shelf lands as defined in the Outer Continental Shelf Lands Act, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, Wake Island, and Johnston Island.
Wage and Hour Division means the Wage and Hour Division, U.S.
Department of Labor.
Wage determination includes any determination of minimum hourly wage rates or fringe benefits made by the Secretary of Labor pursuant to the provisions of the Service Contract Act or the Davis-Bacon Act. This term includes the original determination and any subsequent determinations modifying, superseding, correcting, or otherwise changing the provisions of the original determination.
Worker means any person engaged in performing work on or in connection with a contract covered by the Executive Order, and whose wages under such contract are governed by the Fair Labor Standards Act, the Service Contract Act, or the Davis-Bacon Act, other than individuals employed in a bona fide executive, administrative, or professional capacity, as those terms are defined in 29 CFR part 541, regardless of the contractual relationship alleged to exist between the individual and the employer. The term worker includes workers performing on or in connection with a covered contract whose wages are calculated pursuant to special certificates issued under 29 U.S.C.
214c, as well as any person working on or in connection with a covered contract and individually registered in a bona fide apprenticeship or training program registered with the U.S. Department of Labors Employment and Training Administration, Office of Apprenticeship, or with a State Apprenticeship Agency recognized by the Office of Apprenticeship. A worker performs on a contract if the worker directly performs the specific services called for by the contract. A worker performs in connection with a contract if the workers work activities are necessary to the performance of a
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contract but are not the specific services called for by the contract.
23.30

Coverage.

a This part applies to any new contract, as defined in 23.20, with the Federal Government, unless excluded by 23.40, provided that:
1i It is a procurement contract for construction covered by the DavisBacon Act;
ii It is a contract for services covered by the Service Contract Act;
iii It is a contract for concessions, including any concessions contract excluded from coverage under the Service Contract Act by Department of Labor regulations at 29 CFR 4.133b; or iv It is a contract entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public; and 2 The wages of workers under such contract are governed by the Fair Labor Standards Act, the Service Contract Act, or the Davis-Bacon Act.
b For contracts covered by the Service Contract Act or the Davis-Bacon Act, this part applies to prime contracts only at the thresholds specified in those statutes. For procurement contracts where workers wages are governed by the Fair Labor Standards Act, this part applies when the prime contract exceeds the micro-purchase threshold, as defined in 41 U.S.C. 1902a.
c This part only applies to contracts with the Federal Government requiring performance in whole or in part within the United States, which when used in a geographic sense in this part means the 50 States, the District of Columbia, Puerto Rico, the Virgin Islands, Outer Continental Shelf lands as defined in the Outer Continental Shelf Lands Act, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, Wake Island, and Johnston Island. If a contract with the Federal Government is to be performed in part within and in part outside the United States and is otherwise covered by the Executive Order and this part, the minimum wage requirements of the Order and this part would apply with respect to that part of the contract that is performed within the United States.
d This part does not apply to contracts for the manufacturing or furnishing of materials, supplies, articles, or equipment to the Federal Government, including those that are subject to the Walsh-Healey Public Contracts Act, 41 U.S.C. 6501 et seq.

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23.40

Exclusions.

a Grants. The requirements of this part do not apply to grants within the meaning of the Federal Grant and Cooperative Agreement Act, as amended, 31 U.S.C. 6301 et seq.
b Contracts or agreements with Indian Tribes. This part does not apply to contracts or agreements with Indian Tribes under the Indian SelfDetermination and Education Assistance Act, as amended, 25 U.S.C.
5301 et seq.
c Procurement contracts for construction that are excluded from coverage of the Davis-Bacon Act.
Procurement contracts for construction that are not covered by the Davis-Bacon Act are not subject to this part.
d Contracts for services that are exempted from coverage under the Service Contract Act. Service contracts, except for those expressly covered by 23.30a1iii or iv, that are exempt from coverage of the Service Contract Act pursuant to its statutory language at 41 U.S.C. 6702b or its implementing regulations, including those at 29 CFR
4.115 through 4.122 and 29 CFR
4.123d and e, are not subject to this part.
e Employees who are exempt from the minimum wage requirements of the Fair Labor Standards Act under 29
U.S.C. 213a and 214ab. Except for workers who are otherwise covered by the Davis-Bacon Act or the Service Contract Act, this part does not apply to employees who are not entitled to the minimum wage set forth at 29 U.S.C.
206a1 of the Fair Labor Standards Act pursuant to 29 U.S.C. 213a and 214ab. Pursuant to the exclusion in this paragraph e, individuals that are not subject to the requirements of this part include but are not limited to:
1 Learners, apprentices, or messengers. This part does not apply to learners, apprentices, or messengers whose wages are calculated pursuant to special certificates issued under 29
U.S.C. 214a.
2 Students. This part does not apply to student workers whose wages are calculated pursuant to special certificates issued under 29 U.S.C.
214b.
3 Individuals employed in a bona fide executive, administrative, or professional capacity. This part does not apply to workers who are employed by Federal contractors in a bona fide executive, administrative, or professional capacity, as those terms are defined and delimited in 29 CFR part 541.
f FLSA-covered workers performing in connection with covered contracts for less than 20 percent of their work hours
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