16138 Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 

TABLE 2 

Site name Full site deletion (full) or media/parcels/ 

description for partial deletion Email address for public comments 

McKin Co ........................................................... Full .................................................................... bryant.john@epa.gov. 

Tybouts Corner Landfill ...................................... 2 parcels soil and groundwater approx. 78 

acres.

hinkle.chris@epa.gov, vallone.chris@epa.gov. 

C&R Battery Co., Inc ......................................... Full .................................................................... guerroero.karla@epa.gov. 

Chem-Solv, Inc .................................................. Full .................................................................... hinkle.chris@epa.gov, vallone.chris@epa.gov. 

Koppers Co., Inc (Charleston Plant) .................. 98 acres of soils, sediments and tidal marsh .. zellar.craig@epa.gov. 

Brantley Landfill ................................................. Full .................................................................... jackson.brad@epa.gov. 

Summit National ................................................. Land/soil portion of landfill, adjacent removal 

areas, and 45 down gradient parcels.

Deletions@usepa.onmicrosoft.com. 

Himco Dump ...................................................... 11.5-acre land/soil portion of the site plus adjacent soils.Deletions@usepa.onmicrosoft.com. 

Bee Cee Manufacturing Co ............................... Full .................................................................... wennerstrom.david@epa.gov. 

Omaha Lead ...................................................... 23 residential parcels ....................................... wennerstrom.david@epa.gov. 

Libby Asbestos ................................................... OU 6 including 42 miles of railroad right of 

way between and in the towns of Libby and 

Troy, MT.

zinner.dania@epa.gov. 

EPA maintains the NPL as the list of 

sites that appear to present a significant 

risk to public health, welfare, or the 

environment. Deletion from the NPL 

does not preclude further remedial 

action. Whenever there is a significant 

release from a site deleted from the NPL, 

the deleted site may be restored to the 

NPL without application of the hazard 

ranking system. Deletion of a site from 

the NPL does not affect responsible 

party liability in the unlikely event that 

future conditions warrant further 

actions. 

List of Subjects in 40 CFR Part 300 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

substances, Hazardous waste, 

Intergovernmental relations, Natural 

resources, Oil pollution, Penalties, 

Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply. 

Authority: 33 U.S.C. 1251 et seq.; 42 U.S.C. 

9601–9657; E.O. 13626, 77 FR 56749, 3 CFR, 

2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 

3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 

FR 2923, 3 CFR, 1987 Comp., p. 193. 

Dated: March 10, 2022. 

Dana Stalcup, 

Acting Office Director, Office of Superfund 

Remediation and Technology Innovation. 

[FR Doc. 2022–05555 Filed 3–21–22; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF LABOR 

Office of Federal Contract Compliance 

Programs 

41 CFR Parts 60–1, 60–2, 60–4, 60–20, 

60–30, 60–40, 60–50, 60–300, and 60– 

741 

RIN 1250–AA14 

Pre-Enforcement Notice and 

Conciliation Procedures 

AGENCY: Office of Federal Contract 

Compliance Programs, Labor. 

ACTION: Notice of proposed rulemaking; 

request for comments. 

SUMMARY: To promote the efficient and 

effective enforcement of laws and 

regulations applicable to Federal 

contractors and subcontractors, the 

Office of Federal Contract Compliance 

Programs (OFCCP) proposes to modify 

regulations that delineate procedures 

and standards the agency follows when 

issuing pre-enforcement notices and 

securing compliance through 

conciliation. This proposal would 

support OFCCP in fulfilling its mission 

to ensure equal employment 

opportunity. 

DATES: To be assured of consideration, 

comments must be received on or before 

April 21, 2022. 

ADDRESSES: You may submit comments, 

identified by Regulation Identifier 

Number (RIN) 1250–AA14, by any of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: (202) 693–1304 (for comments 

of six pages or less). 

• Mail: Tina T. Williams, Director, 

Division of Policy and Program 

Development, OFCCP, Room C–3325, 

200 Constitution Avenue NW, 

Washington, DC 20210. 

Instructions: Please submit only one 

copy of your comments by only one 

method. Commenters submitting file 

attachments on http://

www.regulations.gov are advised that 

uploading text-recognized documents, 

i.e., documents in a native file format or 

documents that have undergone optical 

character recognition (OCR), enable staff 

at the Department to more easily search 

and retrieve specific content included in 

your comment for consideration. Please 

be advised that comments received will 

become a matter of public record and 

will be posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

Commenters submitting comments by 

mail should transmit comments early to 

ensure timely receipt prior to the close 

of the comment period, as the 

Department continues to experience 

delays in the receipt of mail. 

Docket: For access to the docket to 

read background documents or 

comments, go to the Federal 

eRulemaking Portal at http://

www.regulations.gov. Copies of this 

notice of proposed rulemaking will be 

made available, upon request, in the 

following formats: Large print, Braille, 

audiotape, and disc. To obtain this 

notice of proposed rulemaking in an 

alternate format, contact OFCCP at the 

telephone numbers or address listed 

below. 

FOR FURTHER INFORMATION CONTACT: Tina 

T. Williams, Director, Division of Policy 

and Program Development, OFCCP, 200 

Constitution Avenue NW, Room C– 

3325, Washington, DC 20210. 

Telephone: (202) 693–0103. 

SUPPLEMENTARY INFORMATION: 


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1Hereinafter, the term ‘‘contractor’’ is used to 

refer collectively to Federal contractors and 

subcontractors that fall under OFCCP’s authority, 

unless otherwise expressly stated. This approach is 

consistent with OFCCP’s regulations, which define 

‘‘contract’’ to include subcontracts and ‘‘contractor’’ 

to include subcontractors. 

2Nondiscrimination Obligations of Federal 

Contractors and Subcontractors: Procedures to 

Resolve Potential Employment Discrimination, 85 

FR 71553 (Nov. 10, 2020). The final rule, which 

took effect on December 10, 2020, was published 

after OFCCP considered comments it received on a 

notice of proposed rulemaking, Nondiscrimination 

Obligations of Federal Contractors and 

Subcontractors: Procedures To Resolve Potential 

Employment Discrimination, 84 FR 71875 (Dec. 30, 

2019). 

3See 41 CFR 60–1.4, 60–4.3, 60–300.5, 60–741.5. 4 85 FR 71553, 71554. 

5The 2020 rule also requires OFCCP to 

demonstrate that the unexplained disparity is 

practically significant and, for disparate impact 

cases, OFCCP must identify the specific policy or 

practice of the contractor causing the adverse 

impact, unless OFCCP can demonstrate that the 

elements of the contractor’s selection procedures 

are incapable of separation for analysis. See 41 CFR 

60–1.33. 

6 41 CFR 60–1.28; see also Compliance 

Responsibility for Equal Employment Opportunity, 

43 FR 49240, 49247 (Oct. 20, 1978); Revision of 

Chapter, 33 FR 7804, 7810 (May 28, 1968). 

Overview 

OFCCP administers and enforces 

Executive Order 11246, as amended 

(E.O. 11246); Section 503 of the 

Rehabilitation Act of 1973, as amended, 

29 U.S.C. 793 (Section 503); and the 

Vietnam Era Veterans’ Readjustment 

Assistance Act of 1974, as amended, 38 

U.S.C. 4212 (VEVRAA); and their 

implementing regulations, 41 CFR 

chapter 60. Collectively, these laws 

require Federal contractors and 

subcontractors 1 to take affirmative 

action to ensure equal employment 

opportunity, and not discriminate on 

the basis of race, color, religion, sex, 

sexual orientation, gender identity, 

national origin, disability, or status as a 

protected veteran. Additionally, E.O. 

11246 prohibits a contractor from 

discharging or otherwise discriminating 

against applicants or employees who 

inquire about, discuss, or disclose their 

compensation or that of others, subject 

to certain limitations. 

In November 2020, OFCCP published 

a final rule, ‘‘Nondiscrimination 

Obligations of Federal Contractors and 

Subcontractors: Procedures to Resolve 

Potential Employment Discrimination’’ 

(the ‘‘2020 rule’’),2 amending its 

regulations to codify the required use of 

two notification procedures, the 

Predetermination Notice and the Notice 

of Violation. The 2020 rule requires 

OFCCP to issue a Predetermination 

Notice that provides contractors with an 

initial written notice of preliminary 

indicators of discrimination and 

requests that contractors respond. If 

after providing contractors an 

opportunity to respond, OFCCP finds a 

violation of an equal opportunity 

clause,3 OFCCP will issue a Notice of 

Violation to the contractor requiring 

corrective action and inviting 

conciliation through a written 

agreement. The contractor then has an 

additional opportunity to respond and 

resolve the matter. Where OFCCP and 

the contractor have been unable to 

resolve these findings, and OFCCP has 

reasonable cause to believe that a 

contractor has violated an equal 

opportunity clause, the Director may 

issue a Show Cause Notice requiring the 

contractor to show cause for why 

monitoring, enforcement proceedings, 

or other appropriate action to ensure 

compliance should not be instituted. 

The 2020 rule also provided for an early 

conciliation option for contractors that 

wish to bypass these notice procedures 

and resolve preliminary indicators of 

discrimination directly through a 

conciliation agreement. 

In addition to requiring the use of the 

Predetermination Notice and Notice of 

Violation, the 2020 rule established 

enforcement standards that, as 

explained in the preamble to the final 

rule, were not ‘‘compelled. . . by [Title 

VII of the Civil Rights Act of 1964] and 

OFCCP case law’’ but rather were 

promulgated ‘‘as an exercise of 

[OFCCP’s] enforcement discretion to 

focus OFCCP’s resources on those cases 

with the strongest evidence,’’ ‘‘increase 

the number of contractors the agency 

evaluates,’’ and to provide ‘‘guardrails 

on the agency’s issuance of preenforcement notices.’’ 4

Upon further review and assessment 

of the impact of the 2020 rule on OFCCP 

enforcement, OFCCP believes that the 

2020 rule’s inflexible evidentiary 

requirements mandate overly 

particularized and confusing 

evidentiary definitions that impede 

OFCCP’s ability to tailor the preenforcement process to the specific facts 

and circumstances of each case, delay 

information exchange with contractors, 

and create obstacles to remedying 

discrimination. The 2020 rule’s rigid 

requirements for issuing a 

Predetermination Notice and Notice of 

Violation in some instances exceed 

what courts have required for proof at 

trial and run counter to the general 

principle that the evidentiary standard 

pursuant to Title VII of the Civil Rights 

Act of 1964 (‘‘Title VII’’) is a flexible one 

dependent on the unique facts at issue. 

These heightened and overly formulaic 

evidentiary standards are particularly 

unsuitable at the Predetermination 

Notice stage of a compliance evaluation, 

where OFCCP provides contractors with 

preliminary notice of indicators of 

discrimination so that contractors may 

provide a response to clarify and resolve 

areas of dispute. 

In addition, mandating the same 

heightened and inflexible evidentiary 

requirements for both the 

Predetermination Notice and the Notice 

of Violation creates inefficient and 

duplicative processes, which hinders 

OFCCP’s ability to provide contractors 

with early notification of indicators of 

discrimination found by the agency. 

Moreover, the 2020 rule attempted to 

codify complex evidentiary issues, 

many of which are inherently open to 

debate, thus encouraging contractors to 

raise collateral challenges to OFCCP’s 

pre-enforcement notice procedures, 

rather than providing a substantive 

response to the indicators and findings 

of discrimination. 

Further, the 2020 rule requires that 

OFCCP disclose to the contractor at the 

pre-enforcement stage the quantitative 

and qualitative evidence relied upon by 

OFCCP to support indicators or findings 

of discriminatory intent ‘‘in sufficient 

detail to allow contractors to investigate 

allegations and meaningfully 

respond.’’ 5 While the 2020 rule 

provided that OFCCP may withhold 

personally identifiable information in 

certain circumstances, the disclosure of 

qualitative evidence creates a risk that 

an employer will uncover identities of 

those who experience or report 

discrimination at this investigatory stage 

of the proceeding, which may have a 

chilling effect on the willingness of 

victims and witnesses to participate in 

OFCCP’s investigation and also 

potentially lead to retaliation against 

those who report discrimination. Upon 

careful consideration, OFCCP believes 

that the 2020 regulations negatively 

impact America’s workers by delaying 

the resolution of discrimination findings 

and constraining OFCCP’s ability to 

effectively enforce the full scope of the 

protections that the President and 

Congress have entrusted to the agency. 

In this rulemaking, OFCCP proposes 

to modify the 2020 rule to rescind the 

rigid evidentiary standards and 

definitions, while retaining and refining 

the required pre-enforcement 

procedures for issuing the 

Predetermination Notice and the Notice 

of Violation. OFCCP’s regulations have 

included use of the Show Cause Notice 

since the agency’s inception.6 This 

proposal will clarify OFCCP’s use of the 

Predetermination Notice and the Notice 

of Violation as pre-enforcement 

procedures, similar to the Show Cause 

Notice regulation, which has never 


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16140 Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 

7 85 FR 71553, 71571–71574, codified at 41 CFR 

60–1.33(a)(5), 60–300.62(a)(5), 60–741.62(a)(5). 

8See Directive 2018–01, Use of Predetermination 

Notices (Feb. 27, 2018), available at https://

www.dol.gov/agencies/ofccp/directives/2018-01 

(last accessed Dec. 5, 2021). 

9 85 FR 71553, 71554. 

10The notices are used at different preenforcement stages. See FCCM, Chapter 8, 

Resolution of Noncompliance (last updated Jan. 7, 

2021), available at https://www.dol.gov/agencies/ 

ofccp/manual/fccm/chapter-8-resolutionnoncompliance (last accessed Dec. 3, 2021). OFCCP 

also uses the Notice of Violation and Show Cause 

Notice to identify other types of potential violations 

of law, such as denial of access or other types of 

nondiscrimination violations like recordkeeping 

deficiencies. 

11See Directive 2018–01, Use of Predetermination 

Notices (Feb. 27, 2018), available at https://

www.dol.gov/agencies/ofccp/directives/2018-01 

(last accessed Dec. 5, 2021). 

12See 84 FR 71875. Show Cause Notices were 

already codified in OFCCP’s regulations prior to the 

2020 rule, at 41 CFR 60–1.28, 60–300.64, 60– 

741.64. 

13Conciliation agreements were also already 

codified in OFCCP’s regulations prior to the 2020 

rule, at 41 CFR 60–1.33, 60–300.62, and 60– 

741.62—the same sections that the 2020 rule 

amended to include the Predetermination Notice, 

the Notice of Violation, the early conciliation 

option, and a severability clause specific only to 

that section. 

included the specific type of evidentiary 

standards the 2020 rule introduced. The 

proposed modifications would allow 

OFCCP to tailor the pre-enforcement 

process to the specific facts and 

circumstances of each case, consistent 

with judicial interpretations of the 

applicable legal authorities, which will 

in turn allow OFCCP to more effectively 

redress unlawful discrimination. 

In addition, to promote greater 

efficiency in resolving cases, OFCCP 

proposes to modify the 2020 rule’s 

provision that required a contractor to 

provide a response within 30 calendar 

days of receiving a Predetermination 

Notice.7 The proposal returns the 

Predetermination Notice response 

period to the 15 calendar day period in 

effect prior to the 2020 rule (which 

OFCCP may extend for good cause).8 In 

the proposal, OFCCP also clarifies this 

provision to state that any response 

must be received by OFCCP within 15 

calendar days (absent a deadline 

extension). 

OFCCP also proposes to retain the 

regulatory language regarding early 

resolution, which provides that 

contractors may waive these notice 

procedures if they enter directly into a 

conciliation agreement. Finally, the 

proposal would delete the severability 

clause that applied just to certain 

sections of OFCCP’s regulations and 

replace it with severability clauses 

covering the entirety of each part of 

OFCCP’s regulatory scheme. 

The 2020 final rule was the first time 

OFCCP sought to codify the specific 

forms of evidence that the agency must 

rely upon during its pre-enforcement 

process. Through this proposal, OFCCP 

would promote consistency by 

codifying the required use of the 

Predetermination Notice and Notice of 

Violation when the agency identifies 

preliminary indicators or findings of 

discrimination, while allowing the 

agency the flexibility to issue 

appropriate guidance to field staff on 

the use of the procedures. OFCCP would 

continue to ensure transparency by 

sharing this guidance with the public. 

This proposed rulemaking aims to 

create a streamlined, efficient, and 

flexible pre-enforcement and 

conciliation process to ensure OFCCP 

utilizes its resources strategically to 

advance the agency’s mission through 

effective enforcement. OFCCP remains 

committed to providing contractors 

notice when the agency sees 

preliminary indicators of discrimination 

during a compliance evaluation, as such 

notice is mutually beneficial for OFCCP 

and the contractor under review because 

it provides the contractor an 

opportunity to respond and work to 

resolve the issues. 

Purpose of the 2020 Rule 

In its 2020 final rule, OFCCP stated an 

intent to increase clarity and 

transparency for Federal contractors, 

establish clear parameters for OFCCP 

enforcement proceedings, and enhance 

the efficient enforcement of the law. The 

2020 rule identified two primary 

objectives: (1) Increase the number of 

contractors the agency evaluates and (2) 

focus on resolving stronger cases 

through the strategic allocation of 

limited agency resources.9 As detailed 

further below in this proposed 

rulemaking, OFCCP reconsidered the 

2020 rule and assessed its impact on 

OFCCP enforcement processes and has 

found that the 2020 rule’s formulaic and 

inflexible evidentiary standards for preenforcement notices neither assist the 

agency in strategically allocating its 

limited resources nor enable the agency 

to evaluate more contractors. Instead, 

the 2020 rule’s evidentiary mandates 

diminish OFCCP’s ability to provide 

contractors with early notification of 

indicators of discrimination and 

unnecessarily divert agency and 

contractor resources away from 

addressing discrimination by spawning 

time-consuming collateral disputes 

about the implementation of these 

heightened evidentiary standards. This 

decreases rather than increases the 

number of contractors that OFCCP can 

evaluate for compliance with equal 

opportunity laws. OFCCP thus proposes 

to modify the 2020 rule to ensure that 

OFCCP utilizes its resources 

strategically to provide contractors with 

an early opportunity to understand and 

resolve indicators or findings of 

discrimination and to enable the agency 

to protect America’s workers by 

enforcing the full scope of the equal 

opportunity authorities with which it 

has been entrusted. 

Pre-Enforcement Notices 

Historically, OFCCP has issued preenforcement notices in compliance 

evaluations (i.e., the Predetermination 

Notice, Notice of Violation, and Show 

Cause Notice) when the agency is 

seeking to remedy findings of 

discrimination.10 Prior to 2018, the use 

of the Predetermination Notice varied 

by region and by the type of case. In 

2018, OFCCP issued a directive, 

requiring the consistent issuance of 

Predetermination Notices for 

preliminary discrimination findings 

identified during the course of 

compliance evaluations.11

A stated goal of the 2020 rule was to 

provide contractors with greater 

certainty by codifying the historical, 

then-existing procedures for issuing the 

Predetermination Notice and the Notice 

of Violation.12 The preamble to the 2020 

rule stated that the Predetermination 

Notice is intended to encourage 

communication with contractors and 

provide them an opportunity to respond 

to preliminary indicators of 

discrimination prior to OFCCP deciding 

to issue a Notice of Violation. As set 

forth in the 2020 rule, if the contractor 

did not respond to the Predetermination 

Notice or sufficiently rebut the 

preliminary indicators in the 

Predetermination Notice, OFCCP would 

issue the Notice of Violation to inform 

the contractor that the agency found 

violations of one or more of the laws it 

enforces. The Notice of Violation also 

informed the contractor that corrective 

action would be required and invited 

conciliation through a written 

agreement.13

Rather than simply codify OFCCP’s 

then-existing procedures for issuing the 

Predetermination Notice and Notice of 

Violation, the 2020 rule instead 

exercised the agency’s enforcement 

discretion to adopt rigid standards that 

the agency had not historically followed 

for issuing these two notices, 

necessitating that OFCCP alter the 

content of the Predetermination Notice 

and Notice of Violation from what had 

previously been included in the notices. 

As detailed further below, this 

rulemaking proposes to retain the 


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14 85 FR 71553, 71562–71565. 

15For all cases proceeding under a disparate 

treatment theory, subject to certain enumerated 

exceptions, the 2020 rule establishes that OFCCP is 

required to provide qualitative evidence supporting 

a finding of discriminatory intent. For all cases 

proceeding under a disparate impact theory, the 

2020 rule requires OFCCP to identify the policy or 

practice of the contractor causing the adverse 

impact with factual support demonstrating why 

such policy or practice has a discriminatory effect. 

85 FR 71553, 71562–71565. 

16 85 FR 71553, 71562. 

17 85 FR 71553, 71555. The definitions are now 

codified at 41 CFR 60–1.3, 60–300.2(t)–(u), and 60– 

741.2(s)–(t). 

18The definition of quantitative evidence 

includes this standard for statistical significance: 

‘‘. . . a disparity in employment selection rates or 

rates of compensation is statistically significant by 

reference to any one of these statements: (1) The 

disparity is two or more times larger than its 

standard error (i.e., a standard deviation of two or 

more); (2) The Z statistic has a value greater than 

two; or (3) The probability value is less than 0.05. 

It also includes numerical analysis of similarly 

situated individuals, small groups, or other 

characteristics, demographics or outcomes where 

hypothesis-testing techniques are not used.’’ 41 CFR 

60–1.3, 60–300.2(t)–(u), 60–741.2(s)–(t); see also 85 

FR 71553, 71571–71574. 

19 85 FR 71553, 71556. 

20 Id. at 71559–71560. 

21See OFCCP v. Oracle, 2017–OFC–00006, 19 

(Order Denying Cross Motions for Summary 

Judgment Granting in Part Defendant’s Alternative 

Motion for Partial Summary Judgment & Order for 

Additional Briefing on Show Cause Notice & 

Conciliation, Nov. 25, 2019) (‘‘‘Reasonable cause’ is 

something that the [Director of OFCCP] is given the 

discretion to determine[.]’’); see also OFCCP v. 

Oracle, 2017–OFC–00006, 8 (Order Granting 

OFCCP Summary Judgment as to Oracle’s 

Affirmative Defenses Related to the Show Cause 

Continued 

agency’s consistent use of the two preenforcement notices while rescinding 

the 2020 rule’s rigid evidentiary 

mandates. 

Prior to the issuance of the 2020 final 

rule, OFCCP had issued subregulatory 

guidance and internal procedures on the 

use of the Predetermination Notice, as 

well as the Notice of Violation, through 

the Federal Contract Compliance 

Manual (FCCM) and agency directives. 

The agency has utilized this guidance to 

promote transparency and consistency, 

while ensuring the agency has the 

flexibility to update these guidance 

documents to improve procedures and 

align with OFCCP’s strategic 

enforcement measures. The 2020 rule 

also codified a new pre-enforcement 

procedure available for OFCCP and 

contractors to expedite conciliation by 

bypassing the Predetermination Notice 

and Notice of Violation procedures and 

entering directly into a conciliation 

agreement. In this rulemaking, OFCCP 

retains this expedited conciliation 

process and only proposes changes to 

that subsection of the 2020 rule to 

clarify the agency’s role in pursuing the 

expedited conciliation option. 

Evidentiary Standards 

The 2020 rule codified evidentiary 

standards that OFCCP must meet in 

order to issue a Predetermination Notice 

and a Notice of Violation. Under the 

2020 rule, OFCCP’s authority to issue a 

Predetermination Notice or Notice of 

Violation for discrimination cases is 

limited to those situations where 

OFCCP demonstrates that it has specific 

forms of evidence conforming to the 

regulatory thresholds requiring 

quantitative (i.e., statistical or other 

numerical) evidence, practical 

significance, and qualitative evidence of 

discrimination.14 The 2020 rule 

differentiates the procedures followed 

for disparate treatment and disparate 

impact theories of discrimination and 

provides the evidentiary standards 

OFCCP must meet to issue preenforcement notices under each legal 

theory.15 The 2020 rule mandates that, 

upon the contractor’s request, OFCCP 

must provide the model and variables 

used in the agency’s statistical analysis 

and an explanation for any variable that 

was excluded from the statistical 

analysis. The 2020 rule also requires 

OFCCP to explain in detail the basis for 

its findings in pre-enforcement 

notices.16 For the reasons discussed 

below, this rulemaking proposes to 

rescind these formal evidentiary 

standards and disclosure requirements 

in the 2020 rule. 

Definitions 

Finally, the 2020 rule added 

definitions for ‘‘quantitative evidence’’ 

and ‘‘qualitative evidence’’ to OFCCP’s 

regulations purporting to add greater 

clarity and certainty as to the types of 

evidence the agency uses to support the 

issuance of pre-enforcement notices.17

The term ‘‘qualitative evidence’’ is 

defined to include the various types of 

documents, testimony, and interview 

statements that OFCCP collects during 

its compliance evaluations relevant to a 

finding of discrimination, and clarified 

the purposes for which it will be used. 

The term ‘‘quantitative evidence’’ 

establishes the support needed for 

OFCCP to determine that there is a 

statistically significant disparity in a 

contractor’s employment selection or 

compensation outcomes affecting a 

group protected under OFCCP’s laws. 

The definition sets a standard for what 

OFCCP considers statistically 

significant.18 The definition also 

includes quantitative analyses, such as 

cohort analyses, which are comparisons 

of similarly situated individuals or 

small groups of applicants or employees 

that are numerical in nature but do not 

use hypothesis testing techniques. 

Pursuant to the 2020 rule, the term 

‘‘qualitative evidence’’ gives an 

affirmative, descriptive label to the 

types of evidence that fall into that 

category while the term ‘‘quantitative 

evidence’’ better encapsulates OFCCP’s 

analytical evidence given the agency’s 

use of descriptive statistics and nonparametric and cohort analyses, in 

addition to a variety of statistical tests 

based on hypothesis testing.19 OFCCP 

declined to add a specific definition for 

practical significance in the 2020 rule 

because it concluded there is not a 

settled definition in relevant academic 

literature and a variety of measures may 

be appropriate to use in any given case, 

instead describing the common types of 

practical significance measures and 

explaining the metrics the agency would 

customarily use.20 In this proposed 

rulemaking, OFCCP proposes to 

eliminate the definitions for the reasons 

discussed below. 

Modifications To Promote Effective 

Enforcement 

Rescinding Evidentiary Standards 

Codified by the 2020 Rule 

The 2020 rule codifies specific 

evidentiary standards that OFCCP must 

meet in order to issue a 

Predetermination Notice and a Notice of 

Violation. The preamble to the 2020 rule 

concedes, however, that these 

standards, applicable to both the 

Predetermination Notice and the Notice 

of Violation, are not compelled by Title 

VII or OFCCP case law. Indeed, as 

discussed below, the 2020 rule places 

certain obligations on OFCCP that go 

beyond what is required by E.O. 11246 

to state or prove a claim of 

discrimination or by Title VII for proof 

of discrimination after the completion of 

the discovery process upon a full 

evidentiary record in litigation. 

The pre-enforcement notice process is 

intended to place the employer on 

notice of OFCCP’s concerns of 

discrimination. The information 

available to OFCCP during the preenforcement notice stage of a 

compliance evaluation is necessarily 

limited compared to a full evidentiary 

record available to support proof of a 

violation at trial. Thus, imposing proof 

standards for the agency’s initial preenforcement proceedings that 

essentially require the agency to be trial 

ready—and, as discussed in more detail 

below, are even more onerous than are 

required in court to prove a violation 

under Title VII—is incompatible with 

the investigatory stage of a compliance 

evaluation.21 As set forth in OFCCP’s 


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16142 Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 

Notice & Conciliation, Dec. 3, 2019) (denying 

Oracle’s argument that if OFCCP did not meet the 

reasonable cause standard for issuing the show 

cause notice, then all of the evidence gathered was 

gathered in violation of the Fourth Amendment 

stating ‘‘[this argument] presumes that the Show 

Cause Notice has a much more important place than 

can be fairly read into the regulatory scheme’’). 

22 41 CFR 60–1.28, 60–300.64, 60–741.64. 

23See, e.g., 42 U.S.C. 2000e–5(b); cf. OFCCP v. 

Honeywell, 77–OFC–3, 8–9 (Sec’y of Labor Dec. & 

Order on Mediation, June 2, 1993) (comparing the 

show cause procedure to the reasonable cause 

determination made by the Equal Employment 

Opportunity Commission (EEOC), the ALJ found 

that the government letter explaining the 

deficiencies found and recommended remedial 

actions was comparable to a reasonable cause 

determination); U.S. Equal Employment 

Opportunity Commission, ‘‘Definition of Terms,’’ 

available at https://www.eeoc.gov/statistics/ 

definitions-terms (last visited Nov. 8, 2021). 

24 41 CFR 60–1.28, 60–300.64, 60–741.64; cf 

EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th 

Cir. 1984) (EEOC’s cause determination ‘‘does not 

adjudicate rights and liabilities; it merely places the 

defendant on notice of the charges’’) (citing EEOC 

v. E.I. Dupont de Nemours & Co., 373 F. Supp. 

1321, 1338 (D. Del. 1974)). 

25Cf. OFCCP v. Greenwood Mills, Inc., Nos. 00– 

044, 01–089, 2002 WL 31932547, at *4 (ARB Final 

Decision & Order Dec. 20, 2002) (‘‘The legal 

standards developed under Title VII of the Civil 

Rights Act of 1964 apply to cases brought under 

[E.O. 11246].’’). 

26 85 FR 71553, 7155. 

27See generally Heckler v. Chaney, 470 U.S. 821 

(1985); Andrews v. Consolidated Rail Corporation, 

831 F.2d 678, 684 (3rd Cir. 1987) (applying Chaney 

to OFCCP decision to decline enforcement under 

Section 503); Clementson v. Brock, 806 F.2d 1402, 

1404 (9th Cir. 1986) (applying Chaney to OFCCP 

decision to decline enforcement under VEVRAA). 

28Similarly, for claims related to disability 

discrimination, OFCCP would continue to apply the 

nondiscrimination standards of the Americans with 

Disabilities Act of 1990 (ADA), as amended, to 

compliance evaluations pertaining to Section 503. 

See, e.g., 41 CFR 60–741.1(c)(1), 60–742.4. 

29The 2020 rule definitions are codified at 41 

CFR 60–1.3, 60–300.2(t)–(u), 60–741.2(s)–(t). 

30See Int’l Bhd. of Teamsters v. United States, 

431 U.S. 324, 358 (1977) (‘‘[T]he facts necessarily 

will vary in Title VII cases, and the specification 

. . . of the prima facie proof required from (a 

plaintiff) is not necessarily applicable in every 

respect to differing factual situations.’’ (alterations 

omitted) (quoting McDonnell Douglas Corp. v. 

Green, 411 U.S. 792, 802 n. 13(1973)); Adams v. 

Ameritech Servs., Inc., 231 F.3d 414, 425 (7th Cir. 

2000) (‘‘No one piece of evidence has to prove every 

element of the plaintiff’s case[.]’’) (internal citations 

omitted); Anderson v. Douglas & Lomason Co., Inc., 

26 F.3d 1277, 1285 (5th Cir. 1994) (‘‘If statistical 

evidence is insufficient to establish discriminatory 

intent, the plaintiffs may bolster their case by 

introducing historical, individual, or circumstantial 

evidence.’’) (citing Bernard v. Gulf Oil Corp., 841 

F.2d 547, 568 (5th Cir. 1988)). 

longstanding regulations in effect since 

OFCCP’s inception, the agency will 

issue a Show Cause Notice to proceed 

with an enforcement action where it has 

reasonable cause to believe 

discrimination occurred based on the 

information available through its 

investigation.22 This means that, based 

upon the evidence obtained in the 

investigation, the agency believes 

discrimination did occur.23 This does 

not require developing a full evidentiary 

record to support proof at trial, but 

rather providing notice of the agency’s 

findings supporting its belief that 

violations occurred and giving the 

contractor the opportunity to show why 

agency action to ensure compliance 

should not be instituted.24 Thus, even 

this final stage in the pre-enforcement 

process does not impose specific 

evidentiary regulations or trial-level 

proof prior to the institution of an 

enforcement action. 

The Predetermination Notice is the 

initial written notice in a multi-stage 

notification and information exchange 

process provided to contractors to 

promote a mutual understanding of the 

issues and facilitate voluntary 

resolution. Prior to the 2020 regulation, 

the Predetermination Notice served to 

foster communication with contractors 

about preliminary indicators of 

discrimination, providing the contractor 

with an early opportunity to understand 

and respond to OFCCP’s preliminary 

findings. This process enables the 

sharing of additional information that 

may assist OFCCP in resolving the 

preliminary findings or conducting a 

more refined analysis of the data before 

determining whether to issue a Notice of 

Violation. 

In order to issue a Predetermination 

Notice under the 2020 rule, OFCCP 

must meet the same evidentiary 

standards as required to issue a Notice 

of Violation. As a result, the 2020 rule 

has created inefficiencies and delay in 

OFCCP’s pre-enforcement process. In 

addition, the 2020 rule has in certain 

respects created higher evidentiary 

requirements for E.O. 11246 matters 

than Title VII matters, which unduly 

circumscribes OFCCP’s ability to 

prosecute discriminatory practices and 

is contrary to the approach generally 

followed by OFCCP and recognized in 

relevant case law.25

While the 2020 rule purported to 

‘‘focus OFCCP’s resources on those 

cases with the strongest evidence,’’ 26

upon further reconsideration OFCCP 

believes the rule hindered the agency’s 

ability to focus on those cases with the 

strongest evidence by adopting a 

formulaic approach to evidentiary 

standards rather than viewing the 

strength of the evidence in light of the 

particular facts and circumstances at 

issue in each case. OFCCP has 

concluded that rigid evidentiary 

standards are unnecessary and unduly 

constrain the agency’s broad 

enforcement discretion as to the cases it 

decides to litigate and those it does 

not.27 OFCCP has been diligent in 

managing its limited resources for 

decades to focus on the strongest cases 

without the need for blanket evidentiary 

standards. To promote more effective 

enforcement, OFCCP proposes to return 

to its long-standing practice of focusing 

agency resources without imposing 

blanket evidentiary standards, pursuing 

those cases supported by strong 

evidence tailored to the facts of each 

case. Further, OFCCP believes that the 

2020 rule has failed to meet its 

objectives of providing clarity and 

promoting efficiency. As described in 

more detail below, these strict 

evidentiary standards have instead led 

to delays in resolutions by increasing 

disagreements between OFCCP and 

contractors about the requirements for 

Predetermination Notices. 

With this proposal, OFCCP would 

apply Title VII standards to the facts 

and circumstances of each compliance 

evaluation to provide contractors with 

notice of the nature of OFCCP’s 

concerns.28 OFCCP proposes to adopt 

this approach to advance a policy of 

promoting consistency between Title VII 

and E.O. 11246 and to remove 

unnecessary constraints on the agency’s 

ability to pursue meritorious cases. 

Taking this approach will help OFCCP 

advance the overriding policy goal of 

promoting nondiscrimination by 

strengthening the enforcement of federal 

protections under E.O. 11246. OFCCP 

also would promote transparency and 

consistency by continuing to codify the 

required use of the Predetermination 

Notice when the agency identifies 

preliminary indicators of 

discrimination. 

1. ‘‘Quantitative’’ and ‘‘Qualitative’’ 

Evidence 

The 2020 rule requires that OFCCP, 

with only narrow exceptions, provide 

both ‘‘quantitative’’ and ‘‘qualitative’’ 

evidence before issuing a 

Predetermination Notice or a Notice of 

Violation, and provides definitions for 

what constitutes ‘‘quantitative’’ and 

‘‘qualitative’’ evidence.29 These 

provisions of the 2020 rule depart from 

traditional Title VII standards in two 

respects. First, Title VII does not 

prescribe the different and specific 

forms of evidence described in the 2020 

rule in order to establish a prima facie 

case of discrimination, much less 

investigatory findings of violation.30

Interpretive Title VII case law 

demonstrates that there are multiple 

ways to establish a prima facie case of 

discrimination, including through 

statistical evidence alone, as long as the 


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31See Bazemore v. Friday, 478 U.S. 385, 400 

(1986) (‘‘Whether . . . [statistics] . . . carry the 

plaintiffs’ ultimate burden will depend in a given 

case on the factual context of each case in light of 

all the evidence presented by both the plaintiff and 

the defendant.’’); Int’l Bhd. of Teamsters, 431 U.S. 

at 339 (finding that statistics may be used to 

establish a prima facie case, but cautioning that the 

‘‘usefulness [of statistics] depends on all of the 

surrounding facts and circumstances’’) (internal 

citations omitted); see also Isabel v. City of 

Memphis, 404 F.3d 404, 412 (6th Cir. 2005) 

(‘‘[W]hen the Supreme Court stated that a plaintiff 

may rely solely on statistical evidence to establish 

a prima facie case of disparate impact . . . it did 

not say what kind of statistical evidence should be 

relied on. Neither the Supreme Court nor this Court 

has ever limited a plaintiff’s choices in Title VII 

cases involving statistical analysis in any way.’’) 

(citing Wards Cove Packing Co. v. Atonio, 490 U.S. 

642, 656–57 (1989)). 

32See Watson v. Fort Worth Bank & Trust, 487 

U.S. 977, 995 n.3 (1988) (noting that the Supreme 

Court has ‘‘not suggested that any particular 

number of ‘standard deviations’ can determine 

whether a plaintiff has made out a prima facie case 

in the complex area of employment 

discrimination’’); Gay v. Waiters’ & Dairy 

Lunchmen’s Union, Local No. 30, 694 F.2d 531, 551 

(9th Cir. 1982) (‘‘It would be improper to posit a 

quantitative threshold above which statistical 

evidence of disparate racial impact is sufficient as 

a matter of law to infer discriminatory intent, and 

below which it is insufficient as a matter of law.’’). 

33See FCCM, Chapter 2E00, Types of Evidence, 

available at https://www.dol.gov/agencies/ofccp/ 

manual/fccm/2e-collecting-information-analysis/ 

2e00-types-evidence (last accessed Dec. 3, 2021) 

(explaining that during its compliance evaluations, 

OFCCP seeks a variety of other types of 

nonstatistical evidence, including anecdotal 

evidence). 34 85 FR 71564. 

35 Int’l Bhd. of Teamsters, 431 U.S. at 358. 

36Thomas v. Eastman Kodak Co., 183 F. 3d 38, 

58 n.12 (1st Cir. 1999) (citing Hodgens v. Gen. 

Dynamics Corp., 144 F.3d 151, 171 n. 13 (1st Cir. 

1998)). 

37 42 U.S.C. 2000e–2(k)(1)(A)(i); see also Ricci v. 

DeStefano, 557 U.S. 557, 578 (2009) (‘‘An employer 

may defend against liability [for disparate impact 

discrimination] by demonstrating that the practice 

is ‘job-related for the position in question and 

consistent with business necessity.’ ’’); Wards Cove 

Packing Co., 490 U.S. at 659 (‘‘[T]he employer 

carries the burden of producing evidence of a 

business justification for his employment 

practice.’’). 

38By way of example, because a plaintiff in 

disparate impact cases must, where possible, 

identify the particular employment practice that is 

causing the adverse impact, see 42 U.S.C. 2000e– 

Continued 

plaintiff ultimately satisfies its burden 

of proof.31

As the U.S. Supreme Court and lower 

courts have long recognized, Title VII 

requires a case-by-case evaluation of the 

facts and circumstances.32 There is no 

one-size-fits-all blanket formula for 

establishing discrimination. Yet, the 

2020 rule circumscribes OFCCP’s 

authority to pursue only those cases that 

meet bright line statistical thresholds or 

rely on specific types of evidence. To be 

sure, OFCCP recognizes the utility of 

anecdotal evidence in support of 

discrimination cases generally and will 

continue to make efforts to gather such 

evidence during its compliance 

evaluations.33 However, to require as a 

baseline rule that the agency proffer 

evidence falling within multiple and 

different categories regardless of the 

factual circumstances of a case— 

especially at the investigative stage— 

goes beyond well-established Title VII 

principles. In addition, a number of the 

regulatory requirements impose a 

standard that is inherently fact specific, 

open to dispute, and ultimately 

unnecessary to adjudicate at this initial 

stage of the proceeding, including the 

requirement that OFCCP provide 

‘‘qualitative evidence supporting a 

finding of discriminatory intent for all 

cases proceeding under a disparate 

treatment theory’’ (emphasis added), 

subject to certain enumerated 

exceptions. Such disputes created 

protracted delays in remedying 

violations of the law. Moreover, the 

2020 rule requires that OFCCP disclose 

to the contractor at this preliminary 

stage the quantitative and qualitative 

evidence relied upon by OFCCP to 

support findings of discriminatory 

intent ‘‘in sufficient detail to allow 

contractors to investigate allegations 

and meaningfully respond.’’ 34

Mandating the disclosure of anecdotal 

evidence at this pre-determination stage 

may have a chilling effect on the 

willingness of victims and witnesses to 

participate in OFCCP’s investigation 

due to concerns that an employer may 

uncover their identities, which could 

lead to retaliation. The preamble to the 

2020 rule acknowledges that OFCCP 

may withhold ‘‘personal identifying 

information from the description of the 

qualitative evidence if the information 

is protected from disclosure under 

recognized governmental privileges, or 

if providing that information would 

otherwise violate confidentiality or 

privacy protections afforded by law;’’ 

yet, even in those circumstances where 

OFCCP may withhold an individual’s 

identity, witnesses may remain 

concerned about the employer’s ability 

to ascertain their identity from the 

anecdotal information provided at this 

pre-determination stage. 

As such, OFCCP proposes to rescind 

the 2020 rule requirement to provide 

both ‘‘quantitative’’ and ‘‘qualitative’’ 

evidence before issuing a 

Predetermination Notice or Notice of 

Violation. As described above, disputes 

over this requirement resulted in 

protracted delays for remedying 

violations. Eliminating this 

unnecessary, rigid requirement allows 

the agency more flexibility, better 

ensures prompt resolutions, and 

strengthens its ability to protect workers 

and enforce the law. Eliminating this 

requirement also allows OFCCP to better 

align its enforcement with Title VII 

evidentiary standards. 

Because OFCCP is proposing to 

rescind this requirement, the definitions 

of ‘‘quantitative evidence’’ and 

‘‘qualitative evidence’’ included in the 

2020 rule to support the evidentiary 

scheme would no longer be necessary. 

Even when evaluated outside of the 

2020 rule’s evidentiary framework, 

upon further consideration, OFCCP now 

believes these definitions, and 

particularly the definition for 

‘‘qualitative evidence,’’ to be confusing, 

overly particularized, and inconsistent 

with the general principle that the Title 

VII evidentiary standard is a flexible one 

dependent on the unique facts at 

issue.35 First, the 2020 rule’s definition 

of ‘‘qualitative evidence’’ begins with a 

series of lengthy, highly specific 

examples that may not be present in 

many systemic discrimination cases. 

Although the 2020 rule stated that 

qualitative evidence ‘‘includes but is not 

limited to’’ these examples, some 

contractors now assert that OFCCP must 

present evidence of these highly specific 

examples in its cases, creating delays to 

OFCCP’s pre-enforcement conciliation 

procedures. However, the 2020 rule’s 

first example—‘‘biased statements, 

remarks, attitudes, or acts based upon 

membership in a protected class, 

particularly when made by a decision 

maker involved in the action under 

investigation’’—includes the sort of 

direct, ‘‘smoking gun’’ evidence that, 

while certainly probative of 

discrimination, is ‘‘rarely found in 

today’s sophisticated employment 

world.’’ 36 The next example—evidence 

about ‘‘misleading or contradictory 

information’’ given by an employer to 

an employee or applicant ‘‘in 

circumstances suggesting discriminatory 

treatment’’—also describes narrow 

factual scenarios that may not be 

present in many cases, substantially 

limiting the utility of the definition. The 

‘‘qualitative evidence’’ definition is also 

overly focused on evidence of 

discriminatory intent in disparate 

treatment cases. Even though it includes 

one example related to disparate impact 

cases—evidence related to ‘‘the business 

necessity (or lack thereof) of a 

challenged policy or practice’’—that 

example is problematic because it is: (1) 

A category of evidence that is the 

employer’s burden to demonstrate, after 

the agency establishes a prima facie 

case; 37 and (2) not the only sort of 

‘‘qualitative’’ evidence that plaintiffs 

typically introduce or rely upon in the 

course of a disparate impact case.38


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2(k)(1)(B)(i), it is commonplace for a plaintiff to 

introduce testimony or interview statements from 

expert witnesses or company officials regarding its 

selection or compensation system that would 

provide necessary context and help to identify the 

particular employment practice at issue. Similarly, 

evidence regarding less discriminatory alternative 

employment practices is a common feature in 

disparate impact cases. 42 U.S.C. 2000e– 

2(k)(1)(A)(ii). 

39OFCCP applies ADA standards to compliance 

evaluations pertaining to Section 503. See supra at 

n. 28. 

40Practical Significance in EEO Analysis 

Frequently Asked Questions, Question #1 (last 

updated Jan. 15, 2021), available at www.dol.gov/ 

agencies/ofccp/faqs/practicalsignificance (last 

accessed Dec. 5. 2021). See also 85 FR 71553, 

71559. 

41 85 FR 71556. 

42See Elliot Ko, Big Enough to Matter: Whether 

Statistical Significance or Practical Significance 

Should Be the Test for Title VII Disparate Impact 

Claims, 101 Minn. L.R. 869, 889 (2016) (‘‘Title VII 

does not require plaintiffs to prove that an 

employment practice had a ‘large’ impact on a 

protected class. Title VII just requires plaintiffs to 

prove that ‘a particular employment practice’ had 

a disparate impact on a protected class.... Title VII 

only requires proof of a ‘disparate impact,’ not proof 

of a ‘very’ disparate impact that is large enough to 

warrant societal or moral condemnation.’’). 

43 Jones v. City of Boston, 752 F.3d 38 (1st Cir. 

2014); Apsley v. Boeing Co., 691 F.3d 1184 (10th 

Cir. 2012); Stagi v. Nat’l R.R. Passenger Corp., 2010 

WL 3273173 (3d Cir. Aug. 16, 2010). 

44 Jones, 752 F.3d at 53. 

45 Id. 

46 Id. (internal citations omitted). 

47 Id. (internal citations omitted). 

48Stagi, 2010 WL 3273173 at *5 (citing Castaneda 

v. Partida, 430 U.S. 482, 496 n.17 (1977)); see also 

Meditz v. City of Newark, 658 F.3d 364, 372 (3d Cir. 

2011) (using only a measure of statistical 

significance to determine whether plaintiff 

established a prima facie case of disparate impact). 

49Brown v. Nucor Corp., 785 F.3d 895, 908, 935 

(4th Cir. 2015); Isabel v. City of Memphis, 404 F.3d 

404, 412, 418 (6th Cir. 2005); Ensley Branch of 

NAACP v. Seibels, 31 F.3d 1548, 1555 (11th Cir. 

1994); Waisome v. Port Auth. of N.Y. & N.J., 948 

F.2d 1370, 1376 (2d Cir. 1991); Clady v. County of 

Los Angeles, 770 F.2d 1421, 1428–29 (9th Cir. 

1985); Fisher v. Procter & Gamble Mfg. Co., 613 

F.2d 527, 545 (5th Cir. 1980). 

50 Ko, supra n. 42, at 881–84. 

51See Practical Significance in EEO Analysis 

Frequently Asked Questions (last updated Jan. 15, 

2021), at https://www.dol.gov/agencies/ofccp/faqs/ 

practical-significance (last accessed Dec. 5, 2021). 

Finally, the definition includes 

‘‘whether the contractor has otherwise 

complied with its non-discrimination 

obligations’’ as a type of permissible 

qualitative evidence. Upon 

reconsideration, OFCCP has concerns 

that this provision could easily be 

misinterpreted to mean that when a 

contractor complies with some of its 

nondiscrimination obligations, it 

somehow lessens the weight of evidence 

of noncompliance with other 

nondiscrimination obligations. 

Accordingly, OFCCP proposes to 

remove the two definitions added in the 

2020 rule. OFCCP will continue to 

evaluate its cases in line with wellestablished Title VII evidentiary 

standards and will continue to provide 

compliance assistance and other 

guidance materials on these standards 

as appropriate.39

2. Practical Significance 

Practical significance refers to 

whether an observed disparity in 

employment opportunities or outcomes 

reflects meaningful harm to the 

disfavored group, focusing on the 

contextual impact or importance of the 

disparity rather than its likelihood of 

occurring by chance.40 For allegations 

included in a Predetermination Notice 

and Notice of Violation, the 2020 rule 

requires that OFCCP demonstrate 

practical significance, and the preamble 

includes quantitative ranges for various 

measures indicating whether it is 

‘‘likely’’ or ‘‘unlikely’’ that practical 

significance is present.41

Whether Title VII specifically requires 

a finding of practical significance is an 

unsettled question. The text of Title VII 

contains no specific requirement that 

practical significance must be 

demonstrated.42 Of the circuit courts 

that have expressly addressed the issue, 

three have concluded that Title VII does 

not require a showing of practical 

significance.43 For example, in Jones v. 

City of Boston, the First Circuit 

explicitly held that a plaintiff’s failure 

to demonstrate practical significance 

could not preclude that plaintiff from 

relying on evidence of statistical 

significance to establish a prima facie 

case of disparate impact.44 In doing so, 

the Court noted that the requirements a 

plaintiff must otherwise meet under 

Title VII ‘‘secure most of the advantages 

that might be gained’’ from a test of 

practical significance.45 First, the ‘‘need 

to show statistical significance will 

eliminate small impacts as fodder for 

litigation . . . because proving that a 

small impact is statistically significant 

generally requires large samples sizes, 

which are often unavailable.’’ 46 Second, 

the subsequent steps required for a 

plaintiff to successfully recover under 

Title VII provide an additional 

safeguard in that the employer may 

rebut the prima facie case.47 Similarly, 

in Stagi v. National Railroad Passenger 

Corp., the Third Circuit explicitly 

declined to require a showing of 

practical significance, and instead 

required only that the plaintiffs meet the 

well-established thresholds for 

statistical significance in order to meet 

their prima facie case.48

Other circuit courts have considered 

measures of practical significance in 

determining whether a plaintiff in a 

disparate impact case has satisfied a 

prima facie case.49 These cases have 

generally adopted a holistic approach to 

the evidence required in a given case 

depending on the facts at issue.50

However, unlike with statistical 

significance, courts have not similarly 

coalesced around uniform quantitative 

measures for what constitutes sufficient 

practical significance. Consequently, the 

2020 rule did not specify which 

measure of many available options 

OFCCP should utilize as a threshold for 

practical significance during its 

compliance evaluations of selection and 

compensation procedures. As OFCCP 

has stated in its Frequently Asked 

Questions published even prior to the 

2020 rule, the agency utilizes a variety 

of measures for evaluating practical 

significance as appropriate to the 

employment issue under review and the 

specific facts of each case.51

As part of its enforcement discretion, 

OFCCP has historically utilized 

practical significance measures where 

appropriate in compliance evaluations 

based on the specific facts of the case 

without the need for regulations. In 

addition, the particular ranges that were 

discussed in the preamble of the 2020 

rule may not be appropriate in all cases 

depending on the other evidence that 

exists. It also remains unsettled whether 

Title VII requires a finding of practical 

significance, and, if so, what level of 

practical significance is sufficient and 

appropriate to the process under review. 

Accordingly, OFCCP believes it is not 

advisable to attempt to regulate the 

standards for practical significance, and 

proposes to remove the requirement to 

demonstrate practical significance 

before issuing a Predetermination 

Notice or Notice of Violation. Moving 

forward, however, OFCCP would still 

consider practical significance measures 

where appropriate as part of a holistic 

evaluation of the cases it investigates 

along with statistical significance and 

all other evidence gathered in the course 

of the investigation. 

Addressing Barriers to Enforcement 

Created by the 2020 Rule 

OFCCP believes that rescinding the 

inflexible evidentiary standards would 

also advance OFCCP’s policy goal of 

alleviating duplicative and inefficient 

processes created by the 2020 rule that 

undermine effective enforcement of 

equal employment opportunity laws. 

For instance, the Predetermination 

Notice originally served to foster 

communication with contractors about 

preliminary indicators of 

discrimination. However, at the 

preliminary stage, these rigid 

evidentiary standards also invite 


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52OFCCP compliance reviews proceed in three 

stages: Desk audit, on-site review, and off-site 

analysis. See 41 CFR 60–1.20(a)(1), 60–300.60(a), 

60–741.60(a). 

53See Directive 2018–01, Use of Predetermination 

Notices (Feb. 27, 2018), available at https://

www.dol.gov/agencies/ofccp/directives/2018-01 

(last accessed Dec. 5, 2021). 

54 41 CFR 60–1.4, 60–4.3, 60–300.5, 60–741.5. 55 85 FR 71553, 71554–71569. 

additional delay by engendering 

disputes about the scope of evidence 

contractors must provide and whether 

OFCCP has satisfied the rule’s 

heightened requirements. The 2020 

rule’s regulatory standards thus serve to 

prevent OFCCP from providing early 

communication of preliminary 

indicators of discrimination and delays 

the prompt resolution of these 

preliminary indicators and the exchange 

of more information to perform 

additional analysis. Pursuant to the 

2020 rule, to issue the Predetermination 

Notice, OFCCP must meet the same 

evidentiary standards that the agency 

must meet to issue a Notice of Violation. 

As a result, the 2020 rule conflates a 

notice that is intended to convey 

preliminary indicators of discrimination 

(the Predetermination Notice) with a 

notice intended to inform the contractor 

that corrective action is required and to 

invite conciliation through a written 

agreement (the Notice of Violation). 

OFCCP believes that conflating these 

two notices by requiring duplicative 

evidentiary standards unnecessarily 

consumes resources and delays 

OFCCP’s ability to timely raise 

preliminary indicators of 

discrimination. As the two notices were 

originally meant to serve separate, 

unique purposes, this rulemaking 

proposes to restore the function of the 

Predetermination Notice to convey 

preliminary indicators of discrimination 

and foster the exchange of information 

and communication toward efficient 

resolution. 

To retain the Predetermination Notice 

and distinguish it from the Notice of 

Violation, OFCCP proposes to modify 

the 2020 rule to enable the agency to 

streamline the compliance evaluation 

process and issue the Predetermination 

Notice earlier where appropriate. 

OFCCP will issue a Predetermination 

Notice describing the preliminary 

indicators of discrimination and any 

other potential violations OFCCP has 

identified, asking the contractor to 

respond. In some circumstances, this 

may be after the agency has completed 

the desk audit and prior to the on-site 

review,52 while in other cases, 

depending on the facts and 

circumstances, the agency will issue the 

Predetermination Notice after OFCCP 

has begun an on-site review and 

obtained the information necessary to 

identify preliminary indicators of 

discrimination. 

To promote greater efficiency in 

resolving cases, OFCCP proposes to 

modify the 2020 rule’s provision which 

required a contractor to provide a 

response within 30 calendar days of 

receiving a Predetermination Notice. 

The proposal will return the 

Predetermination Notice response 

period to the 15-calendar-day period in 

effect prior to the 2020 rule (which 

OFCCP may extend for good cause).53 In 

the proposal, OFCCP also clarifies this 

provision to state that any response 

must be received by OFCCP within 15 

calendar days (absent a deadline 

extension). 

After OFCCP issues a 

Predetermination Notice, where the 

contractor does not sufficiently rebut 

the preliminary indicators of 

discrimination, and OFCCP finds a 

violation of one or more of its equal 

opportunity clauses,54 OFCCP will issue 

a Notice of Violation to the contractor 

identifying the violations, describing the 

recommended corrective actions, and 

inviting conciliation through a written 

agreement. OFCCP proposes changes to 

the Notice of Violation regulation 

similar to the changes proposed for the 

Predetermination Notice, to remove 

barriers to resolution. For the Notice of 

Violation regulatory provision, the 

proposed changes make clear that 

OFCCP can include additional 

violations in a subsequent Show Cause 

Notice without amendment to the 

Notice of Violation to prevent 

enforcement delays. The proposed 

changes to the Notice of Violation 

regulation also clearly state that OFCCP 

will provide contractors an opportunity 

to conciliate additional violations 

identified in the Show Cause Notice. 

The proposal contains similar changes 

in the Predetermination Notice 

provision, allowing OFCCP to add 

additional violations in a subsequent 

Notice of Violation or Show Cause 

Notice without amending the 

Predetermination Notice. The proposed 

changes provide that OFCCP may issue 

a Show Cause Notice where OFCCP has 

reasonable cause to believe that a 

contractor has violated the equal 

opportunity clause. The proposed 

changes also clarify that the agency may 

issue a Show Cause Notice without first 

issuing a Predetermination Notice or 

Notice of Violation when the contractor 

has failed to provide access to its 

premises for an on-site review, or 

refuses to provide access to witnesses, 

records, or other information. 

These proposed changes stem from 

OFCCP’s experience implementing the 

2020 rule as well as its policy judgment 

on how OFCCP can strengthen 

enforcement of its requirements and 

promote consistency with Title VII. The 

2020 rule stated that key objectives 

included promoting more effective 

enforcement, increasing the number of 

contractors that the agency evaluates, 

and increasing fairness for contractors 

by providing more transparency and 

certainty on the agency’s resolution 

procedures.55 However, the 2020 rule 

has not met these objectives. The 2020 

rule instead resulted in time-consuming 

disputes with contractors over the 

application of the new requirements. 

For example, upon receipt of the 

Predetermination Notice, contractors 

have disputed the application of the 

2020 rule’s evidentiary requirements, 

causing additional delay that diverts 

resources from the central issue of 

resolving indicators and findings of 

discrimination. Additionally, several 

contractors have argued that the 

anecdotal evidence that OFCCP shared 

to support its case failed to meet the 

‘‘qualitative evidence’’ definition 

included in the 2020 rule. Other 

contractors have argued that the 

qualitative evidence that OFCCP 

provided was insufficient because the 

agency failed to disclose the identity of 

the interviewees who provided relevant 

statements at the Predetermination 

Notice stage. Contractors have also 

disputed whether OFCCP met the 

required threshold for practical 

significance under the 2020 rule, 

arguing that the agency has failed to 

meet the threshold or even disagreeing 

with the 2020 rule’s standard altogether. 

In each of these cases, the disputes 

raised by contractors have delayed 

OFCCP’s completion of compliance 

evaluations. These delays would not 

have occurred but for the 2020 rule and 

its rigid evidentiary requirements for a 

Predetermination Notice that are prone 

to dispute and in some respects go 

beyond what is required for proof of 

discrimination under Title VII. OFCCP 

proposes modifications to these preenforcement notice and conciliation 

procedures to streamline the issuance of 

these notices by removing inefficiency 

and delay caused by the 2020 rule. 

Restoring Flexibility to OFCCP’s 

Procedures 

This proposed rulemaking also seeks 

to restore flexibility to OFCCP’s preenforcement notice and conciliation 


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56Update of Commission’s Conciliation 

Procedures, 86 FR 2974 (Jan. 14, 2021), annulled. 

Before it was annulled, the rule amended the 

EEOC’s procedures governing its conciliation 

process for charges alleging violations of Title VII, 

the ADA, the Genetic Information 

Nondiscrimination Act, and/or the Age 

Discrimination in Employment Act. The EEOC rule 

implemented requirements regarding the 

information EEOC must provide in preparation for 

and during conciliation about the factual and legal 

bases for the Commission’s position and findings 

for charges where it has found reasonable cause. 

57President Biden signed the joint resolution of 

Congress into law on June 30, 2021. See 

Commission’s Conciliation Procedures, Public Law 

117–22, June 30, 2021, 135 Stat 294. 

58See 167 Cong. Rec. H3110–H3111 (daily ed. 

June 24, 2021). (‘‘[T]he rule incentivizes employers 

to focus litigation on whether the EEOC failed to 

satisfy the rule’s new requirements instead of 

whether the employer engaged in unlawful 

discrimination’’ (statement of Rep. Scott); also, the 

‘‘. . . [EEOC rule] threatens to delay or potentially 

deny justice for individuals who face workplace 

discrimination’’ (statement of Rep. Bonamici). 

59 167 Cong. Rec. H3110, 3111 (daily ed. June 24, 

2021) (noting that repealing the conciliation rule 

would, inter alia, remove ‘‘onerous and rigid new 

procedures;’’ nullify ‘‘unnecessary and burdensome 

standards that would likely result in increased 

charge backlogs, and lengthier charge investigation, 

resolution and litigation times;’’ give EEOC ‘‘the 

flexibility to tailor settlements to the facts and 

circumstances of each case;’’ and ‘‘ensure that 

justice for workers subject to discrimination is not 

delayed, or potentially denied, due to costly and 

time-consuming collateral litigation’’) (Statement of 

Administration Policy). 

60 167 Cong. Rec. H3110, 3112 (daily ed. June 24, 

2021) (‘‘Instead of ensuring that discrimination 

charges are resolved fairly, the EEOC’s final rule 

imposes several new obligations and disclosures 

that: significantly weight the conciliation process in 

favor of employers; delay justice and increase the 

likelihood of harm to working people; divert scarce 

EEOC staff time and resources away from 

investigating discrimination; and contravene 

controlling U.S. Supreme Court precedent.’’) (Letter 

from the Leadership Conference on Civil and 

Human Rights). 

61 Mach Mining, LLC v. EEOC, 575 U.S. 480, 492 

(2015) (‘‘Every aspect of Title VII’s conciliation 

provision smacks of flexibility. To begin with, the 

EEOC need only ‘endeavor’ to conciliate a claim, 

without having to devote a set amount of time or 

resources to that project. [42 U.S.C.] § 2000e–5(b). 

Further, the attempt need not involve any specific 

steps or measures; rather, the Commission may use 

in each case whatever ‘informal’ means of 

‘conference, conciliation, and persuasion’ it deems 

appropriate.’’). 

62See 167 Cong. Rec. H3110–H3111 (daily ed. 

June 24, 2021) (statement of Rep. Scott). 

63 42 U.S.C. 2000e-5(b) (‘‘If the Commission 

determines after such investigation that there is 

reasonable cause to believe that the charge is true, 

the Commission shall endeavor to eliminate any 

such alleged unlawful employment practice by 

informal methods of conference, conciliation, and 

persuasion.’’). 

64 Mach Mining, LLC, 575 U.S. at 480. 

65 Joint Resolution Providing for congressional 

disapproval under chapter 8 of title 5, United States 

Code, of the rule submitted by the Equal 

Employment Opportunity Commission relating to 

‘‘Update of Commission’s Conciliation Procedures’’. 

COMMISSION’S CONCILIATION PROCEDURES, 

PL 117–22, June 30, 2021, 135 Stat 294. 

66 167 Cong. Rec. H3110, 3111 (daily ed. June 24, 

2021) (Statement of Administration Policy). 

67 41 CFR 60–1.20(b) (noting that if ‘‘deficiencies 

are found to exist, OFCCP shall make reasonable 

efforts to secure compliance through conciliation 

and persuasion’’). OFCCP has identical discretion 

under VEVRAA and Section 503. See 41 CFR 60– 

300.60(b), 60–741.60(b). 

68See 41 CFR 60–1.20(b), 60–300.60(b), 60– 

741.60(b). 

69 41 CFR 60–1.33, 60–300.62, 60–741.62. 

70See FCCM, Chapter 8, Resolution of 

Noncompliance, available at https://www.dol.gov/ 

agencies/ofccp/manual/fccm/chapter-8-resolutionnoncompliance (last accessed Dec. 3, 2021). 

71See, e.g., Directive 2018–01, Use of 

Predetermination Notices, (Feb. 27, 2018), available 

at https://www.dol.gov/agencies/ofccp/directives/ 

2018-01 (last accessed Dec. 5, 2021); ‘‘Practical 

Significance in EEO Analysis Frequently Asked 

Questions’’ (last updated Jan. 15, 2021), available at 

https://www.dol.gov/agencies/ofccp/faqs/practicalsignificance (last accessed Dec. 5, 2021). 

72 41 CFR 60–1.33, 60–300.62, 60–741.62. 

procedures. OFCCP needs flexibility in 

its investigatory and conciliation 

procedures to effectively resolve 

employment discrimination. In January 

of 2021, the Equal Employment 

Opportunity Commission (EEOC) 

published a final rule concerning its 

conciliation procedures.56 The U.S. 

Congress subsequently passed a law 57

to disapprove and annul the EEOC rule, 

based on concerns similar to those 

underlying this proposed rulemaking, 

such as the increase in employer 

litigation about the process, the delay of 

resolution of discrimination claims, and 

mandated disclosures unfairly 

weighting the process in favor of 

employers and subjecting workers to 

heightened risk of retaliation, as 

reflected in the Congressional Record.58

The Congressional Record also includes 

a statement from President Biden’s 

administration 59 and a letter submitted 

by the Leadership Conference on Civil 

and Human Rights signed by 24 civil 

rights organizations.60 The supportive 

statements and letter all cited to a 

unanimous decision by the Supreme 

Court in Mach Mining, LLC v. EEOC that 

described the wide latitude that Title 

VII gives EEOC to conciliate in pursuit 

of voluntary compliance with the law.61

EEOC’s experience with the conciliation 

process is instructive. Before the Court’s 

decision in Mach Mining, employers 

routinely raised time-consuming 

challenges to whether EEOC satisfied its 

discretionary conciliation requirements. 

For example, the workers in Mach 

Mining—women alleged to have been 

excluded from coal mining jobs on the 

basis of sex—were forced to wait nine 

years after the first charge was filed for 

relief after years of litigation over 

procedural challenges to the 

conciliation process. EEOC’s nowrescinded January 2021 conciliation 

rulemaking sought to codify rigid 

standards that would enable employers 

to shift the focus away from the core 

issue of whether discrimination 

occurred and instead attempt to avoid 

liability by pursuing resource intensive 

satellite proceedings over whether 

discretionary conciliation processes had 

been satisfied. As stated by 

Representative Scott in support of 

overturning this EEOC rule, EEOC 

‘‘must have discretion to use whatever 

informal means of settlement are 

appropriate’’ instead of applying a rigid 

conciliation process ‘‘across the board, 

one-size-fits-all, in every case of 

workplace discrimination.’’ 62 This 

authority to have administrative 

discretion in conciliation was directly 

granted to EEOC by Congress,63

confirmed by a unanimous opinion from 

the U.S. Supreme Court,64 re-affirmed 

by Congress through the annulment of 

EEOC’s conciliation procedures rule,65

and recognized by the current President 

of the United States.66

OFCCP has similar discretion to 

conciliate compliance under E.O. 11246, 

Section 503, and VEVRAA 67—to right 

the wrong of employment 

discrimination. When OFCCP 

determines that a Federal contractor is 

deficient in its compliance with E.O. 

11246, Section 503, or VEVRAA, OFCCP 

must make ‘‘reasonable efforts’’ to 

secure compliance through conciliation 

and persuasion,68 under the procedures 

set forth in Chapter 60 of the U.S. Code 

of Federal Regulations,69 the FCCM,70

and subregulatory guidance.71 OFCCP 

views the Title VII flexibility principle 

cited by Congress as similarly vital to 

OFCCP’s work in securing compliance 

with E.O. 11246, Section 503, and 

VEVRAA. As such, OFCCP proposes to 

clarify that the ‘‘reasonable efforts’’ 

standard it must satisfy when 

attempting to secure compliance with 

its laws should be interpreted 

consistently with the Title VII language 

requiring EEOC to ‘‘endeavor to 

eliminate any such alleged unlawful 

employment practice by informal 

methods of conference, conciliation, 

and persuasion,’’ to ensure OFCCP has 

the same flexibility in the 

administration of its laws as that 

recognized under Title VII by Congress 

and the U.S. Supreme Court for EEOC. 

The 2020 rule’s codification of 

OFCCP’s resolution procedures 72

imposes hurdles to the effective exercise 

of OFCCP’s enforcement discretion. 

With this proposed rule, OFCCP seeks 

to restore the flexibility it had prior to 

December 10, 2020, applying Title VII 

standards to the facts and circumstances 

of each compliance evaluation, while 

preserving certainty and transparency 

for Federal contractors by requiring the 


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73As noted previously, supra at n. 28, OFCCP 

would continue to apply ADA standards to 

compliance evaluations pertaining to Section 503. 74Effective October 1, 2010, the coverage 

threshold under Section 503 increased from 

$10,000 to $15,000, in accordance with the 

inflationary adjustment requirements in 41 U.S.C. 

1908. See Federal Acquisition Regulation; Inflation 

Adjustment of Acquisition-Related Thresholds, 75 

FR 53129 (Aug. 30, 2010). 

75Effective October 1, 2015, the coverage 

threshold under VEVRAA increased from $100,000 

to $150,000, in accordance with the inflationary 

adjustment requirements in 41 U.S.C. 1908. See 

Federal Acquisition Regulation; Inflation 

Adjustment of Acquisition-Related Thresholds, 80 

FR 38293 (July 2, 2015). 

76 In addition, OFCCP’s 2020 final rule relating to 

the E.O. 11246 religious exemption included a 

severability clause that applied only to provisions 

within 41 CFR 60–1.5. Implementing Legal 

Requirements Regarding the Equal Opportunity 

Clause’s Religious Exemption, 85 FR 79324, 79372 

(Dec. 9, 2020), codified at 41 CFR 60–1.5(f). OFCCP 

has proposed to rescind that rule, including the 

severability clause. 86 FR 62115 (Nov. 9, 2021). 

use of a Predetermination Notice and 

Notice of Violation.73

Statement of Legal Authority 

Issued in 1965, and amended several 

times in the intervening years, E.O. 

11246 has two principal purposes. First, 

it prohibits covered Federal contractors 

and subcontractors from discriminating 

against employees and applicants 

because of race, color, religion, sex, 

sexual orientation, gender identity, 

national origin, or because they inquire 

about, discuss, or disclose their 

compensation or that of others, subject 

to certain limitations. Second, it 

requires covered Federal contractors 

and subcontractors to take affirmative 

action to ensure equal employment 

opportunity. 

The requirements in E.O. 11246 

generally apply to any business or 

organization that (1) holds a single 

Federal contract, subcontract, or 

federally assisted construction contract 

in excess of $10,000; (2) has Federal 

contracts or subcontracts that combined 

total in excess of $10,000 in any 12- 

month period; or (3) holds Government 

bills of lading, serves as a depository of 

Federal funds, or is an issuing and 

paying agency for U.S. savings bonds 

and notes in any amount. Supply and 

service contractors with 50 or more 

employees and a single Federal contract 

or subcontract of $50,000 or more also 

must develop and maintain an 

affirmative action program that 

complies with 41 CFR part 60–2. 

Construction contractors have different 

affirmative action requirements under 

E.O. 11246 at 41 CFR part 60–4. 

Enacted in 1973, and amended since, 

the purpose of Section 503 of the 

Rehabilitation Act of 1973 is twofold. 

First, Section 503 prohibits employment 

discrimination on the basis of disability 

by Federal contractors. Second, it 

requires each covered Federal contractor 

to take affirmative action to employ and 

advance in employment qualified 

individuals with disabilities. The 

requirements in Section 503 generally 

apply to any business or organization 

that holds a single Federal contract or 

subcontract in excess of $15,000.74

Contractors with 50 or more employees 

and a single Federal contract or 

subcontract of $50,000 or more also 

must develop and maintain an 

affirmative action program that 

complies with 41 CFR part 60–741, 

subpart C. 

Enacted in 1974 and amended in the 

intervening years, VEVRAA prohibits 

Federal contractors and subcontractors 

from discriminating against employees 

and applicants because of status as a 

protected veteran (defined by the statute 

to include disabled veterans, recently 

separated veterans, Armed Forces 

Service Medal Veterans, and active duty 

wartime or campaign badge veterans). It 

also requires each covered Federal 

contractor and subcontractor to take 

affirmative action to employ and 

advance in employment these veterans. 

The requirements in VEVRAA generally 

apply to any business or organization 

that holds a single Federal contract or 

subcontract in excess of $150,000.75

Contractors with 50 or more employees 

and a single Federal contract or 

subcontract of $150,000 or more also 

must develop and maintain an 

affirmative action program that 

complies with 41 CFR part 60–300, 

subpart C. 

Pursuant to these laws, receiving a 

Federal contract comes with a number 

of responsibilities. Contractors are 

required to comply with all provisions 

of these laws as well as the rules, 

regulations, and relevant orders of the 

Secretary of Labor. Where OFCCP finds 

noncompliance under any of the three 

laws or their implementing regulations, 

it utilizes established procedures to 

either facilitate resolution or proceed to 

administrative enforcement as necessary 

to secure compliance. A contractor 

found in violation who fails to correct 

violations of OFCCP’s regulations may, 

after the opportunity for a hearing, have 

its contracts canceled, terminated, or 

suspended and/or may be subject to 

debarment. 

Proposed Revisions 

This rulemaking proposes to amend 

41 CFR parts 60–1, 60–300, and 60–741 

by removing unnecessary and confusing 

evidentiary standards and definitions 

that the 2020 rule requires, while 

retaining and refining the preenforcement procedures for issuing the 

Predetermination Notice and the Notice 

of Violation. The proposed revisions 

would enable OFCCP to apply Title VII 

standards to the facts and circumstances 

of each compliance evaluation and 

clarify that OFCCP’s conciliation 

standards align with the flexibility and 

enforcement discretion afforded under 

Title VII for endeavoring to secure 

compliance through conciliation. The 

rulemaking would also amend each 

part’s regulatory provision on Show 

Cause Notices, relocating the provision 

to the same section as the other codified 

pre-enforcement notices and codifying 

when OFCCP will amend the Show 

Cause Notice consistent with current 

practice. 

The rulemaking further proposes to 

amend 41 CFR parts 60–1, 60–2, 60–4, 

60–20, 60–30, 60–40, 60–50, 60–300, 

and 60–741. The 2020 rule added the 

first severability clause to OFCCP’s 

regulations, but it only applies to the 

resolution procedures sections for each 

of OFCCP’s legal authorities (i.e., 41 

CFR 60–1.33, 60–300.62, and 60– 

741.42).76 OFCCP has determined that, 

if there is a severability clause in any 

part of its regulations, it should apply to 

all of its regulations, rather than just 

certain specific sections. Thus, OFCCP 

proposes to include a severability clause 

in each part of its regulations, such that 

if a court of competent jurisdiction 

found any provision(s) of the part to be 

invalid, it would not affect any other 

provision of the part or chapter. The 

severability clauses currently only 

applicable to 41 CFR 60–1.33, 60– 

300.62, and 60–741.42 would be 

removed. 

Revised Sections 

41 CFR PART 60–1—OBLIGATIONS 

OF CONTRACTORS AND 

SUBCONTRACTORS 

Subpart A—Preliminary Matters; Equal 

Opportunity Clause; Compliance 

Reports 

Section 60–1.3 Definitions 

The NPRM proposes to amend § 60– 

1.3 by removing the definitions for 

‘‘Qualitative evidence’’ and 

‘‘Quantitative evidence.’’ These 

definitions operate in tandem with the 

evidentiary standards that are currently 

creating hurdles to the effective 

enforcement of OFCCP laws and would 

be rendered unnecessary by other 

proposed changes to this part. 


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Subpart B—General Enforcement; 

Compliance Review and Complaint 

Procedure 

Section 1.20 Compliance Evaluations 

The NPRM proposes to clarify the 

‘‘reasonable efforts’’ standard in § 60– 

1.20(b) that OFCCP must satisfy when 

attempting to secure compliance 

through conciliation, to make clear that 

OFCCP’s conciliation standards align 

with Title VII. 

Section 1.28 Show Cause Notices 

The NPRM proposes to remove and 

reserve § 60–1.28, to relocate ‘‘Show 

cause notices’’ to § 60–1.33 with the 

other pre-enforcement notices in this 

part. 

Section 60–1.33 Resolution Procedures 

The NPRM proposes to revise § 60– 

1.33 by changing the title to ‘‘Preenforcement notice and conciliation 

procedures’’; removing unnecessary 

regulatory standards impeding OFCCP’s 

ability to resolve preliminary indicators 

and findings of discrimination; 

incorporating a relocated subsection on 

Show Cause Notices to improve 

regulatory organization; clarifying 

OFCCP’s use of the Show Cause Notice 

including when a contractor denies 

access to its premises, to witnesses, or 

to records; making general clarifying 

edits to improve procedural efficacy 

including OFCCP’s role in the early 

conciliation option; and removing the 

severability clause specific to this 

section. 

Subpart C—Ancillary Matters 

Section 60–1.48 Severability 

The NPRM proposes to add § 60–1.48, 

a severability clause. 

41 CFR PART 60–2—AFFIRMATIVE 

ACTION PROGRAMS 

Subpart C—Miscellaneous 

Section 60–2.36 Severability 

The NPRM proposes to add § 60–2.36, 

a severability clause. 

41 CFR PART 60–4—CONSTRUCTION 

CONTRACTORS—AFFIRMATIVE 

ACTION REQUIREMENTS 

Section 60–4.10 Severability 

The NPRM proposes to add § 60–4.10, 

a severability clause. 

41 CFR PART 60–20— 

DISCRIMINATION ON THE BASIS OF 

SEX 

Section 60–20.9 Severability 

The NPRM proposes to add § 60–20.9, 

a severability clause. 

41 CFR PART 60–30—RULES OF 

PRACTICE FOR ADMINISTRATIVE 

PROCEEDINGS TO ENFORCE EQUAL 

OPPORTUNITY UNDER EXECUTIVE 

ORDER 11246 

GENERAL PROVISIONS 

Section 60–30.38 Severability 

The NPRM proposes to add § 60– 

30.38, a severability clause. 

41 CFR PART 60–40—EXAMINATION 

AND COPYING OF OFCCP 

DOCUMENTS 

Subpart A—General 

Section 60–40.9 Severability 

The NPRM proposes to add § 60–40.9, 

a severability clause. 

41 CFR PART 60–50—GUIDELINES ON 

DISCRIMINATION BECAUSE OF 

RELIGION OR NATIONAL ORIGIN 

Section 60–50.6 Severability 

The NPRM proposes to add § 60–50.6, 

a severability clause. 

41 CFR PART 60–300—AFFIRMATIVE 

ACTION AND NONDISCRIMINATION 

OBLIGATIONS OF FEDERAL 

CONTRACTORS AND 

SUBCONTRACTORS REGARDING 

DISABLED VETERANS, RECENTLY 

SEPARATED VETERANS, ACTIVE 

DUTY WARTIME OR CAMPAIGN 

BADGE VETERANS, AND ARMED 

FORCES SERVICE MEDAL VETERANS 

Subpart A—Preliminary Matters; Equal 

Opportunity Clause 

Section 60–300.2 Definitions 

The NPRM proposes to amend § 60– 

300.2 by removing the definitions for 

‘‘Qualitative evidence’’ and 

‘‘Quantitative evidence.’’ These 

definitions would be rendered 

unnecessary by other proposed changes 

to this part. 

Subpart D—General Enforcement and 

Complaint Procedures 

Section 60–300.60 Compliance 

Evaluations 

The NPRM proposes to clarify the 

‘‘reasonable efforts’’ standard in § 60– 

300.60 (b) that OFCCP must satisfy 

when attempting to secure compliance 

through conciliation, to make clear that 

OFCCP’s conciliation standards align 

with Title VII. 

Section 60–300.62 Resolution 

Procedures 

The NPRM proposes to revise § 60– 

300.62 by changing the title to ‘‘Preenforcement notice and conciliation 

procedures’’; removing unnecessary 

regulatory standards impeding OFCCP’s 

ability to resolve preliminary indicators 

and findings of discrimination; 

incorporating a relocated subsection on 

Show Cause Notices to improve 

regulatory organization; clarifying 

OFCCP’s use of the Show Cause Notice 

including when a contractor denies 

access to its premises, to witnesses, or 

to records; making general clarifying 

edits to improve procedural efficacy 

including OFCCP’s role in the early 

conciliation option; and removing the 

severability clause specific to this 

section. 

Section 60–300.64 Show Cause 

Notices 

The NPRM proposes to remove and 

reserve § 60–300.64, to relocate ‘‘Show 

cause notices’’ to § 60–300.62 with the 

other pre-enforcement notices in this 

part. 

Subpart E—Ancillary Matters 

Section 60–300.85 Severability 

The NPRM proposes to add § 60– 

300.85, a severability clause. 

41 CFR PART 60–741—AFFIRMATIVE 

ACTION AND NONDISCRIMINATION 

OBLIGATIONS OF FEDERAL 

CONTRACTORS AND 

SUBCONTRACTORS REGARDING 

INDIVIDUALS WITH DISABILITIES 

Subpart A—Preliminary Matters; Equal 

Opportunity Clause 

Section 60–741.2 Definitions 

The NPRM proposes to amend § 60– 

741.2 by removing the definitions for 

‘‘Qualitative evidence’’ and 

‘‘Quantitative evidence.’’ These 

definitions would be rendered 

unnecessary by other proposed changes 

to this part. 

Subpart D—General Enforcement and 

Complaint Procedures 

Section 60–741.60 Compliance 

Evaluations 

The NPRM proposes to clarify the 

‘‘reasonable efforts’’ standard in § 60– 

741.60 (b) that OFCCP must satisfy 

when attempting to secure compliance 

through conciliation, to make clear that 

OFCCP’s conciliation standards align 

with Title VII. 

Section 60–741.62 Resolution 

Procedures 

The NPRM proposes to revise § 60– 

741.62 by changing the title to ‘‘Preenforcement notice and conciliation 

procedures’’; removing unnecessary 

regulatory standards impeding OFCCP’s 

ability to resolve preliminary indicators 

and findings of discrimination; 

incorporating a relocated subsection on 


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77OFCCP obtained the total number of supply 

and service contractors from the most recent EEO– 

1 Report data available, which is from fiscal year 

(FY) 2018. 

78OFCCP obtained the total number of 

construction establishments (12,609) from FY 2019 

USASpending data, available at https://

www.usaspending.gov/#/download_center/award_

data_archive (last accessed Dec. 8, 2021). The 

agency then used the ratio of contractor 

establishments to contractor firms (1.02) from US 

Census Bureau data, available at https://

www.census.gov/data/tables/2017/econ/economiccensus/naics-sector-23.html (last accessed Dec. 8, 

2021). 12,609/1.02 = 12,362 construction 

contractors. 

Show Cause Notices to improve 

regulatory organization; clarifying 

OFCCP’s use of the Show Cause Notice 

including when a contractor denies 

access to its premises, to witnesses, or 

to records; making general clarifying 

edits to improve procedural efficacy 

including OFCCP’s role in the early 

conciliation option; and removing the 

severability clause specific to this 

section. 

Section 60–741.64 Show Cause 

Notices 

The NPRM proposes to remove and 

reserve § 60–741.64, to relocate ‘‘Show 

cause notices’’ to § 60–741.62 with the 

other pre-enforcement notices in this 

part. 

Subpart E—Ancillary Matters 

Section 60–741.84 Severability 

The NPRM proposes to add § 60– 

741.84, a severability clause. 

Regulatory Procedures 

Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation 

and Regulatory Review) 

Under Executive Order 12866 (E.O. 

12866), the Office of Management and 

Budget’s (OMB) Office of Information 

and Regulatory Affairs (OIRA) 

determines whether a regulatory action 

is significant and, therefore, subject to 

the requirements of E.O. 12866 and 

OMB review. Section 3(f) of E.O. 12866 

defines a ‘‘significant regulatory action’’ 

as an action that is likely to result in a 

rule that: (1) Has an annual effect on the 

economy of $100 million or more, or 

adversely affects in a material way a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

or tribal governments or communities 

(also referred to as economically 

significant); (2) creates serious 

inconsistency or otherwise interferes 

with an action taken or planned by 

another agency; (3) materially alters the 

budgetary impacts of entitlement grants, 

user fees, or loan programs, or the rights 

and obligations of recipients thereof; or 

(4) raises novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in E.O. 12866. This proposed 

rulemaking has been designated a 

‘‘significant regulatory action,’’ although 

not economically significant, under 

section 3(f) of E.O. 12866. OMB has 

reviewed this proposal. 

Executive Order 13563 (E.O. 13563) 

directs agencies to adopt a regulation 

only upon a reasoned determination 

that its benefits justify its costs; tailor 

the regulation to impose the least 

burden on society, consistent with 

obtaining the regulatory objectives; and 

in choosing among alternative 

regulatory approaches, select those 

approaches that maximize net benefits. 

E.O. 13563 recognizes that some 

benefits are difficult to quantify and 

provides that, where appropriate and 

permitted by law, agencies may 

consider and discuss qualitatively 

values that are difficult or impossible to 

quantify, including equity, human 

dignity, fairness, and distributive 

impacts. 

A. Need for Rulemaking 

OFCCP believes that the 2020 rule 

created rigid constraints that are not 

required by Title VII and/or impede the 

agency’s effective enforcement of E.O. 

11246, Section 503, and VEVRAA. This 

has delayed information exchange with 

contractors and created obstacles to a 

timely resolution of preliminary 

indicators and findings of 

discrimination and greater compliance. 

The 2020 rule has also resulted in timeconsuming collateral disputes over the 

implementation of the rule’s regulatory 

standards—diverting limited agency and 

contractor resources away from 

resolving concerns of discrimination. 

This diversion of resources and delay in 

the pre-enforcement process will reduce 

rather than increase the number of 

contractors that OFCCP is able to 

evaluate for compliance. 

This NPRM aims to create a 

streamlined, efficient, and flexible 

process to ensure OFCCP utilizes its 

limited resources as strategically as 

possible to advance the agency’s 

mission. In a return to prior agency 

policy, OFCCP will apply Title VII 

standards to the facts and circumstances 

of each compliance evaluation, 

including during the pre-enforcement 

notice and conciliation stages. Doing so 

will remove unnecessary constraints 

that impede effective enforcement by 

limiting the agency’s enforcement 

discretion, and prevent delays in case 

resolutions due to the 2020 rule. 

Removing the blanket regulatory 

requirements will also allow OFCCP to 

pursue enforcement in cases that, albeit 

actionable under Title VII, are more 

difficult to pursue under the 2020 rule. 

OFCCP remains committed to providing 

contractors early notice when the 

agency identifies preliminary indicators 

of systemic discrimination during a 

compliance evaluation. Such notice is 

mutually beneficial for OFCCP and the 

contractor under review because it 

provides the contractor with an earlier 

opportunity to respond to potential 

issues before OFCCP makes a 

determination on violations. Providing 

earlier notice to contractors can result in 

the prompt and mutually satisfactory 

resolution of cases, which minimizes 

unnecessary burdens on contractors and 

agency staff. Going forward, OFCCP 

would provide updated guidance to its 

compliance officers on the preenforcement procedures. This guidance 

would reflect current case law, provide 

OFCCP needed flexibility, and be 

available to the public to promote 

transparency. 

B. Discussion of Impacts 

In this section, OFCCP presents a 

summary of the costs associated with 

the modifications in this proposed 

rulemaking. OFCCP utilizes the 

Employment Information Report (EEO– 

1) data, which identifies the number of 

supply and service contractors that 

could be scheduled for a compliance 

evaluation and thus impacted by the 

proposed modification. The EEO–1 

Report must be filed by covered Federal 

contractors who: (1) Have 50 or more 

employees; (2) are prime contractors or 

first-tier subcontractors; and (3) have a 

contract, subcontract, or purchase order 

amounting to $50,000 or more. OFCCP 

schedules only contractors who meet 

those thresholds for compliance 

evaluations. The number of supply and 

service contractors possibly impacted by 

the proposed modification is 24,251.77

OFCCP also utilizes USASpending 

data, which identifies the number of 

construction contractors that could be 

scheduled for a compliance evaluation 

and thus impacted by the proposed 

modification. The USASpending data 

accounts for all construction contractors 

with contracts greater than $10,000 who 

meet the thresholds for compliance 

evaluations. The number of construction 

contractors possibly impacted by the 

proposed modification is 12,362.78

While OFCCP acknowledges that all 

Federal contractors may learn their EEO 

requirements in order to comply with 

the laws that OFCCP enforces, only 

those contractors scheduled for a 

compliance evaluation are directly 

impacted by the proposed modification. 


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79 24,251 supply and service contractors + 12,362 

construction contractors = 36,613 contractors. 

80BLS, Occupational Employment Statistics, 

Occupational Employment and Wages, May 2020, 

available at www.bls.gov/oes/current/oes_nat.htm 

(last accessed Dec. 8, 2021). 

81BLS, Employer Costs for Employee 

Compensation, available at www.bls.gov/ncs/ 

data.htm (last accessed Dec. 8, 2021). Wages and 

salaries averaged $26.53 per hour worked in 

December 2020, while benefit costs averaged 

$12.07, which is a benefits rate of 46 percent. 

82Cody Rice, U.S. Environmental Protection 

Agency, ‘‘Wage Rates for Economic Analyses of the 

Toxics Release Inventory Program,’’ (June 10, 2002), 

available at www.regulations.gov/ 

document?D=EPA–HQ–OPPT–2014–0650–0005 (last 

accessed Dec. 8, 2021). 

Scheduled contractors are likely to have 

a need to know the pre-enforcement 

procedures because they may need to 

interact with OFCCP. The total number 

of contractors possibly impacted by the 

proposed modification is 36,613.79

OFCCP has determined that either a 

Human Resources Manager (SOC 11– 

3121) or a Lawyer (SOC 23–1011) would 

review the proposed modification. 

OFCCP estimates that 50 percent of the 

reviewers would be human resources 

managers and 50 percent would be inhouse counsel. Thus, the mean hourly 

wage rate reflects a 50/50 split between 

human resources managers and lawyers. 

The mean hourly wage of a human 

resources manager is $64.70 and the 

mean hourly wage of a lawyer is 

$71.59.80 Therefore, the average hourly 

wage rate is $68.15 (($64.70 + $71.59)/ 

2). OFCCP adjusted this wage rate to 

reflect fringe benefits such as health 

insurance and retirement benefits, as 

well as overhead costs such as rent, 

utilities, and office equipment. OFCCP 

uses a fringe benefits rate of 46 

percent 81 and an overhead rate of 17 

percent,82 resulting in a fully loaded 

hourly compensation rate of $111.08 

($68.15 + ($68.15 × 46 percent) + 

($68.15 × 17 percent)). The estimated 

labor cost to contractors is reflected in 

Table 1, below. 

TABLE 1—LABOR COST

Major occupational groups 

Average 

hourly wage 

rate 

Fringe benefit 

rate Overhead rate 

Fully loaded 

hourly 

compensation 

Human Resources Managers and Lawyers .................................................... $68.15 46% 17% $111.08 

1. Cost of Rule Familiarization 

OFCCP acknowledges that 5 CFR 

1320.3(b)(1)(i) requires agencies to 

include in the burden analysis for a 

proposed rulemaking the estimated time 

it takes for contractors to review and 

understand the instructions for 

compliance. To minimize the burden, 

OFCCP will publish compliance 

assistance materials regarding the 

proposed rule, once final. 

OFCCP believes that a human 

resources manager or lawyer will take a 

minimum of 30 minutes (1⁄2 hour) to 

read the proposed rule or read the 

compliance assistance materials 

provided by OFCCP. Consequently, the 

estimated burden for rule 

familiarization is 18,307 hours (36,613 

contractor firms × 1⁄2 hour). OFCCP 

calculates the total estimated cost of 

rule familiarization as $2,033,542 

(18,307 hours × $111.08/hour) in the 

first year, which amounts to a 10-year 

annualized cost of $231,450 at a 

discount rate of 3 percent (which is 

$6.32 per contractor firm) or $270,589 at 

a discount rate of 7 percent (which is 

$7.39 per contractor firm). Table 2, 

below, reflects the estimated regulatory 

familiarization costs for the proposed 

rule. 

TABLE 2—REGULATORY FAMILIARIZATION COST

Total number of contractors .................................................................................................................................................................. 36,613. 

Time to review rule ............................................................................................................................................................................... 30 minutes. 

Human Resources Managers fully loaded hourly compensation ......................................................................................................... $111.08. 

Regulatory familiarization cost in the first year ..................................................................................................................................... $2,033,542. 

Annualized cost with 3 percent discounting ......................................................................................................................................... $231,450. 

Annualized cost per contractor with 3 percent discounting .................................................................................................................. $6.32. 

Annualized cost with 7 percent discounting ......................................................................................................................................... $270,589. 

Annualized cost per contractor with 7 percent discounting .................................................................................................................. $7.39. 

2. Benefits 

E.O. 13563 recognizes that some rules 

have benefits that are difficult to 

quantify or monetize but are 

nevertheless important and states that 

agencies may consider such benefits. 

This proposed rule has equity and 

fairness benefits, which are explicitly 

recognized in E.O. 13563. The proposal 

is designed to achieve these benefits by: 

• Supporting more effective 

enforcement of OFCCP’s equal 

opportunity laws by eliminating 

procedural inefficiencies and 

heightened evidentiary standards 

created by the 2020 rule; 

• Facilitating earlier and more 

efficient resolutions; 

• Ensuring greater certainty and 

consistency in case resolutions by 

maintaining adherence to Title VII and 

OFCCP case law standards; 

• Promoting transparency by 

codifying the required use of the 

Predetermination Notice when the 

agency identifies preliminary indicators 

of discrimination; 

• Allowing OFCCP to tailor the preenforcement process to the specific facts 

and circumstances of each case, 

consistent with judicial interpretations 

of the applicable legal authorities, 

which will in turn allow OFCCP to more 

effectively redress unlawful 

discrimination; 

• Advancing a policy of promoting 

consistency between Title VII and E.O. 

11246 and removing unnecessary 

constraints on the agency’s ability to 

pursue meritorious cases. This approach 

will help OFCCP advance the overriding 

policy goal of promoting 

nondiscrimination by strengthening the 

enforcement of federal protections 

under E.O. 11246; 


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• Reducing time-consuming disputes 

over unnecessary standards; and 

• Furthering the strategic allocation 

of agency resources. 

C. Alternatives 

In addition to the approach proposed, 

OFCCP also considered alternative 

approaches. OFCCP considered 

modifying the 2020 rule to rescind the 

entirety of the rule except the correction 

to OFCCP’s agency head title. OFCCP 

also considered modifying the 2020 rule 

by eliminating the Predetermination 

Notice entirely since it currently 

functions as a procedural redundancy. 

However, OFCCP determined that 

retaining both pre-enforcement notices 

in the regulatory text while rescinding 

the inflexible evidentiary requirements 

for the Predetermination Notice and 

Notice of Violation allows the contractor 

and OFCCP to engage in earlier 

discussions that can lead to more 

efficient resolutions. 

OFCCP also considered maintaining 

the current regulations established in 

the 2020 rule. However, as discussed 

earlier in this preamble, OFCCP 

determined that creating a rigid 

regulatory process to govern its preenforcement compliance evaluation 

process is incompatible with the 

flexibility needed for effective 

enforcement. Moreover, the 2020 rule 

places certain obligations on OFCCP at 

this preliminary stage that go beyond 

the substantive legal requirements that 

E.O. 11246, Title VII, and interpretive 

case law require to state a claim and 

prove discrimination at a much later 

stage, upon a full evidentiary record. 

OFCCP has determined that imposing 

such rigid and heightened standards 

early in its pre-enforcement proceedings 

unduly constrains its ability to pursue 

claims of discrimination. The 2020 rule 

also created an inefficient process where 

OFCCP’s Predetermination Notice 

(intended to convey preliminary 

indicators of discrimination) and the 

Notice of Violation (intended to inform 

the contractor that corrective action is 

required and to invite conciliation 

through a written agreement) were 

largely duplicative. Further, the 

mandating of regulatory requirements 

for making inherently fact specific 

determinations, invites time-consuming 

disputes over the application of the 

rule’s requirements. Modifying the 2020 

regulations would help restore the 

enforcement discretion and flexibility 

OFCCP needs to facilitate compliance 

through conciliation by providing preenforcement notice of preliminary 

discrimination indicators and findings, 

and applying Title VII to the facts and 

circumstances of each compliance 

evaluation. OFCCP is proposing 

modification of the regulatory text to 

create a more streamlined and effective 

process for the agency to communicate 

preliminary indicators to contractors, 

provide contractors an opportunity to 

respond, notify contractors of violations, 

and ultimately facilitate greater 

understanding to obtain resolution 

through conciliation. 

Regulatory Flexibility Act and 

Executive Order 13272 (Consideration 

of Small Entities) 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601 et seq., establishes 

‘‘as a principle of regulatory issuance 

that agencies shall endeavor, consistent 

with the objectives of the rule and 

applicable statutes, to fit regulatory and 

informational requirements to the scale 

of the businesses, organizations, and 

governmental jurisdictions subject to 

regulation.’’ Public Law 96–354, 2(b). 

The RFA requires agencies to consider 

the impact of a regulatory action on a 

wide range of small entities, including 

small businesses, nonprofit 

organizations, and small governmental 

jurisdictions. 

Agencies must review whether a 

regulatory action would have a 

significant economic impact on a 

substantial number of small entities. See 

5 U.S.C. 603. If the regulatory action 

would, then the agency must prepare a 

regulatory flexibility analysis as 

described in the RFA. See id. However, 

if the agency determines that the 

regulatory action would not be expected 

to have a significant economic impact 

on a substantial number of small 

entities, then the head of the agency 

may so certify and the RFA does not 

require a regulatory flexibility analysis. 

See 5 U.S.C. 605. The certification must 

provide the factual basis for this 

determination. 

The proposed rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The first year cost for small entities at 

a discount rate of 7 percent for rule 

familiarization is $51.91 per entity 

which is far less than 1 percent of the 

annual revenue of the smallest of the 

small entities affected by the proposal. 

Accordingly, OFCCP certifies that the 

proposed modification will not have a 

significant economic impact on a 

substantial number of small entities. 

Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

requires that OFCCP consider the 

impact of paperwork and other 

information collection burdens imposed 

on the public. See 44 U.S.C. 3507(d). An 

agency may not collect or sponsor the 

collection of information or impose an 

information collection requirement 

unless the information collection 

instrument displays a currently valid 

OMB control number. See 5 CFR 

1320.5(b)(1). 

OFCCP has determined that there 

would be no new requirement for 

information collection associated with 

this proposed rulemaking. The 

information collections contained in the 

existing E.O. 11246, Section 503, and 

VEVRAA regulations are currently 

approved under OMB Control Number 

1250–0001 (Construction Recordkeeping 

and Reporting Requirements), OMB 

Control Number 1250–0003 

(Recordkeeping and Reporting 

Requirements—Supply and Service), 

OMB Control Number 1250–0004 

(Office of Federal Contract Compliance 

Programs Recordkeeping and Reporting 

Requirements Under the Vietnam Era 

Veterans’ Readjustment Assistance Act 

of 1974, as Amended), and OMB Control 

Number 1250–0005 (Office of Federal 

Contract Compliance Programs 

Recordkeeping and Reporting 

Requirements Under Rehabilitation Act 

of 1973, as Amended Section 503). 

Consequently, this proposal does not 

require review by OMB under the 

authority of the Paperwork Reduction 

Act. 

Unfunded Mandates Reform Act of 

1995 

For purposes of the Unfunded 

Mandates Reform Act of 1995, 2 U.S.C. 

1532, this proposed rule would not 

include any federal mandate that may 

result in excess of $100 million in 

expenditures by state, local, and tribal 

governments in the aggregate or by the 

private sector. 

Executive Order 13132 (Federalism) 

OFCCP has reviewed this proposed 

rule in accordance with Executive Order 

13132 regarding federalism and has 

determined that it would not have 

‘‘federalism implications.’’ The 

proposed regulatory action would not 

‘‘have substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government.’’ 

Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This proposed rule would not have 

tribal implications under Executive 

Order 13175 that would require a tribal 

summary impact statement. The 

proposal would not ‘‘have substantial 

direct effects on one or more Indian 


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tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes.’’ 

List of Subjects 

41 CFR Part 60–1 

Administrative practice and 

procedure, Civil rights, Employment, 

Equal employment opportunity, 

Government contracts, Government 

procurement, Investigations, Labor, 

Reporting and recordkeeping 

requirements. 

41 CFR Part 60–2 

Equal employment opportunity, 

Government procurement, Reporting 

and recordkeeping requirements. 

41 CFR Part 60–4 

Construction industry, Equal 

employment opportunity, Government 

procurement, Reporting and 

recordkeeping requirements. 

41 CFR Part 60–20 

Civil rights, Equal employment 

opportunity, Government procurement, 

Labor, Sex discrimination, Women. 

41 CFR Part 60–30 

Administrative practice and 

procedure, Civil rights, Equal 

employment opportunity, Government 

contracts, Government procurement, 

Government property management, 

Individuals with Disabilities, Reporting 

and recordkeeping requirements, 

Veterans. 

41 CFR Part 60–40 

Freedom of information, Reporting 

and recordkeeping requirements. 

41 CFR Part 60–50 

Equal employment opportunity, 

Government procurement, Religious 

discrimination, Reporting and 

recordkeeping requirements. 

41 CFR Parts 60–300 and 60–741 

Administrative practice and 

procedure, Civil rights, Employment, 

Equal employment opportunity, 

Government contracts, Government 

procurement, Individuals with 

disabilities, Investigations, Labor, 

Reporting and recordkeeping 

requirements, Veterans. 

Jenny R. Yang, 

Director, Office of Federal Contract 

Compliance Programs. 

For the reasons stated in the 

preamble, the OFCCP proposes to 

amend 41 CFR parts 60–1, 60–2, 60–4, 

60–20, 60–30, 60–40, 60–50, 60–300, 

and 60–741 as follows: 

PART 60–1—OBLIGATIONS OF 

CONTRACTORS AND 

SUBCONTRACTORS 

■ 1. The authority citation for part 60– 

1 continues to read as follows: 

Authority: Sec. 201, E.O. 11246, 30 FR 

12319, 3 CFR, 1964–1965 Comp., p. 339, as 

amended by E.O. 11375, 32 FR 14303, 3 CFR, 

1966–1970 Comp., p. 684, E.O. 12086, 43 FR 

46501, 3 CFR, 1978 Comp., p. 230, E.O. 

13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 

258 and E.O. 13672, 79 FR 42971. 

§ 60–1.3 [Amended] 

■ 2. Amend § 60–1.3 by removing the 

definitions for ‘‘Qualitative evidence’’ 

and ‘‘Quantitative evidence’’. 

■ 3. Amend § 60–1.20 by revising 

paragraph (b) to read as follows: 

§ 60–1.20 Compliance evaluations. 

* * * * * 

(b) Where deficiencies are found to 

exist, OFCCP will make reasonable 

efforts to secure compliance through 

conciliation and persuasion, pursuant to 

§ 60–1.33. The ‘‘reasonable efforts’’ 

standard shall be interpreted 

consistently with title VII of the Civil 

Rights Act of 1964 and its requirement 

that the Equal Employment Opportunity 

Commission ‘‘endeavor to eliminate any 

such alleged unlawful employment 

practice by informal methods of 

conference, conciliation, and 

persuasion.’’ Before the contractor can 

be found to be in compliance with the 

order, it must make a specific 

commitment, in writing, to correct any 

such deficiencies. The commitment 

must include the precise action to be 

taken and dates for completion. The 

time period allotted shall be no longer 

than the minimum period necessary to 

effect such changes. Upon approval of 

the commitment, the contractor may be 

considered in compliance, on condition 

that the commitments are faithfully 

kept. The contractor shall be notified 

that making such commitments does not 

preclude future determinations of 

noncompliance based on a finding that 

the commitments are not sufficient to 

achieve compliance. 

* * * * * 

§ 60–1.28 [Removed and Reserved] 

■ 4. Remove and reserve § 60–1.28. 

■ 5. Revise § 60–1.33 to read as follows: 

§ 60–1.33 Pre-enforcement notice and 

conciliation procedures. 

(a) Predetermination Notice. If a 

compliance evaluation by OFCCP 

indicates preliminary indicators of 

discrimination, OFCCP will issue a 

Predetermination Notice describing the 

indicators and providing the contractor 

an opportunity to respond. The 

Predetermination Notice may also 

include other potential violations that 

OFCCP has identified at that stage of the 

review. After OFCCP issues the 

Predetermination Notice, the agency 

may identify additional violations and 

include them in a subsequent Notice of 

Violation or Show Cause Notice without 

amending the Predetermination Notice. 

OFCCP will provide the contractor an 

opportunity to conciliate additional 

violations identified in the Notice of 

Violation or Show Cause Notice. Any 

response to a Predetermination Notice 

must be received by OFCCP within 15 

calendar days of receipt of the Notice, 

which deadline OFCCP may extend for 

good cause. If the contractor does not 

respond or OFCCP determines that the 

contractor’s response did not resolve the 

indicators of discrimination in the 

Predetermination Notice, OFCCP will 

proceed with the review. 

(b) Notice of Violation. If a 

compliance evaluation by OFCCP 

indicates a violation of the equal 

opportunity clause, OFCCP will issue a 

Notice of Violation to the contractor 

requiring corrective action and inviting 

conciliation through a written 

agreement. The Notice of Violation will 

identify the violations and describe the 

recommended corrective actions. After 

the Notice of Violation is issued, OFCCP 

may include additional violations in a 

subsequent Show Cause Notice without 

amendment to the Notice of Violation. 

OFCCP will provide the contractor an 

opportunity to conciliate additional 

violations identified in the Show Cause 

Notice. 

(c) Conciliation agreement. If a 

compliance review, complaint 

investigation, or other review by OFCCP 

or its representative indicates a material 

violation of the equal opportunity 

clause, and: 

(1) If the contractor, subcontractor, or 

bidder is willing to correct the 

violations and/or deficiencies; and 

(2) If OFCCP or its representative 

determines that settlement (rather than 

referral for consideration of formal 

enforcement) is appropriate, a written 

conciliation agreement shall be 

required. The agreement shall provide 

for such remedial action as may be 

necessary to correct the violations and/ 

or deficiencies identified, including, 

where appropriate (but not limited to), 

remedies such as back pay, salary 

adjustments, and retroactive seniority. 

(d) Show cause notices. When the 

Director has reasonable cause to believe 

that a contractor has violated the equal 

opportunity clause the Director may 


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issue a notice requiring the contractor to 

show cause, within 30 days, why 

monitoring, enforcement proceedings, 

or other appropriate action to ensure 

compliance should not be instituted. 

OFCCP may issue a Show Cause Notice 

without first issuing a Predetermination 

Notice or Notice of Violation when the 

contractor has failed to provide access 

to its premises for an on-site review or 

refused to provide access to witnesses, 

records, or other information. The Show 

Cause Notice will include each violation 

that OFCCP has identified at the time of 

issuance. Where OFCCP identifies 

additional violations after issuing a 

Show Cause Notice, OFCCP will modify 

or amend the Show Cause Notice. 

(e) Expedited conciliation option. 

OFCCP may agree to waive the 

procedures set forth in paragraphs (a) 

and/or (b) of this section to enter 

directly into a conciliation agreement 

with a contractor. OFCCP may offer the 

contractor this expedited conciliation 

option, but may not require or insist that 

the contractor avail itself of the 

expedited conciliation option. 

■ 6. Add § 60–1.48 to read as follows: 

§ 60–1.48 Severability. 

Should a court of competent 

jurisdiction hold any provision(s) of this 

part to be invalid, such action will not 

affect any other provision of this part. 

PART 60–2—AFFIRMATIVE ACTION 

PROGRAMS 

■ 7. The authority citation for part 60– 

2 continues to read as follows: 

Authority: Sec. 201, E.O. 11246, 30 FR 

12319, E.O. 11375, 32 FR 14303, as amended 

by E.O. 12086, 43 FR 46501, and E.O. 13672, 

79 FR 42971. 

■ 8. Add § 60–2.36 to read as follows: 

§ 60–2.36 Severability. 

Should a court of competent 

jurisdiction hold any provision(s) of this 

part to be invalid, such action will not 

affect any other provision of this part. 

PART 60–4—CONSTRUCTION 

CONTRACTORS—AFFIRMATIVE 

ACTION REQUIREMENTS 

■ 9. The authority citation for part 60– 

4 continues to read as follows: 

Authority: Secs. 201, 202, 205, 211, 301, 

302, and 303 of E.O. 11246, as amended, 30 

FR 12319; 32 FR 14303, as amended by E.O. 

12086; and E.O. 13672, 79 FR 42971. 

■ 10. Add § 60–4.10 to read as follows: 

§ 60–4.10 Severability. 

Should a court of competent 

jurisdiction hold any provision(s) of this 

part to be invalid, such action will not 

affect any other provision of this part. 

PART 60–20—DISCRIMINATION ON 

THE BASIS OF SEX 

■ 11. The authority citation for part 60– 

20 continues to read as follows: 

Authority: Sec. 201, E.O. 11246, 30 FR 

12319, 3 CFR, 1964–1965 Comp., p. 339 as 

amended by E.O. 11375, 32 FR 14303, 3 CFR 

1966–1970 Comp., p. 684; E.O. 12086, 43 FR 

46501, 3 CFR 1978 Comp., p. 230; E.O. 

13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 

258; and E.O. 13672, 79 FR 42971. 

■ 12. Add § 60–20.9 to read as follows: 

§ 60–20.9 Severability. 

Should a court of competent 

jurisdiction hold any provision(s) of this 

part to be invalid, such action will not 

affect any other provision of this part. 

PART 60–30—RULES OF PRACTICE 

FOR ADMINISTRATIVE PROCEEDINGS 

TO ENFORCE EQUAL OPPORTUNITY 

UNDER EXECUTIVE ORDER 11246 

■ 13. The authority citation for part 60– 

30 continues to read as follows: 

Authority: Executive Order 11246, as 

amended, 30 FR 12319, 32 FR 14303, as 

amended by E.O. 12086; 29 U.S.C. 793, as 

amended, and 38 U.S.C. 4212, as amended. 

■ 14. Add § 60–30.38 to read as follows: 

§ 60–30.38 Severability. 

Should a court of competent 

jurisdiction hold any provision(s) of this 

part to be invalid, such action will not 

affect any other provision of this part. 

PART 60–40—EXAMINATION AND 

COPYING OF OFCCP DOCUMENTS 

■ 15. The authority citation for part 60– 

40 continues to read as follows: 

Authority: E.O. 11246, as amended by E.O. 

11375, and as amended by E.O. 12086; 5 

U.S.C. 552. 

■ 16. Add § 60–40.9 to read as follows: 

§ 60–40.9 Severability. 

Should a court of competent 

jurisdiction hold any provision(s) of this 

part to be invalid, such action will not 

affect any other provision of this part or 

chapter. 

PART 60–50—GUIDELINES ON 

DISCRIMINATION BECAUSE OF 

RELIGION OR NATIONAL ORIGIN 

■ 17. The authority citation for part 60– 

50 continues to read as follows: 

Authority: Sec. 201 of E.O. 11246, as 

amended, 30 FR 12319; 32 FR 14303, as 

amended by E.O. 12086; and E.O. 13672, 79 

FR 42971. 

■ 18. Add § 60–50.6 to read as follows: 

§ 60–50.6 Severability. 

Should a court of competent 

jurisdiction hold any provision(s) of this 

part to be invalid, such action will not 

affect any other provision of this part. 

PART 60–300—AFFIRMATIVE ACTION 

AND NONDISCRIMINATION 

OBLIGATIONS OF FEDERAL 

CONTRACTORS AND 

SUBCONTRACTORS REGARDING 

DISABLED VETERANS, RECENTLY 

SEPARATED VETERANS, ACTIVE 

DUTY WARTIME OR CAMPAIGN 

BADGE VETERANS, AND ARMED 

FORCES SERVICE MEDAL VETERANS 

■ 19. The authority citation for part 60– 

300 continues to read as follows: 

Authority: 29 U.S.C. 793; 38 U.S.C. 4211 

and 4212; E.O. 11758 (3 CFR, 1971–1975 

Comp., p. 841). 

§ 60–300.2 [Amended] 

■ 20. Amend § 60–300.2 by removing 

the definitions for ‘‘Qualitative 

evidence’’ and ‘‘Quantitative evidence. 

■ 21. Amend § 60–300.60 by revising 

paragraph (b) to read as follows: 

§ 60–300.60 Compliance evaluations. 

* * * * * 

(b) Where deficiencies are found to 

exist, OFCCP will make reasonable 

efforts to secure compliance through 

conciliation and persuasion, pursuant to 

§ 60–300.62. The ‘‘reasonable efforts’’ 

standard shall be interpreted 

consistently with title VII of the Civil 

Rights Act of 1964 and its requirement 

that the Equal Employment Opportunity 

Commission ‘‘endeavor to eliminate any 

such alleged unlawful employment 

practice by informal methods of 

conference, conciliation, and 

persuasion.’’ 

* * * * * 

■ 22. Revise § 60–300.62 to read as 

follows: 

§ 60–300.6 2 Pre-enforcement notice and 

conciliation procedures. 

(a) Predetermination Notice. If a 

compliance evaluation by OFCCP 

indicates preliminary indicators of 

discrimination, OFCCP will issue a 

Predetermination Notice describing the 

indicators and providing the contractor 

an opportunity to respond. The 

Predetermination Notice may also 

include other potential violations that 

OFCCP has identified at that stage of the 

review. After OFCCP issues the 

Predetermination Notice, the agency 

may identify additional violations and 

include them in a subsequent Notice of 

Violation or Show Cause Notice without 

amending the Predetermination Notice. 

OFCCP will provide the contractor an 

opportunity to conciliate additional 

violations identified in the Notice of 

Violation or Show Cause Notice. Any 

response to a Predetermination Notice 


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16154 Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 

must be received by OFCCP within 15 

calendar days of receipt of the Notice, 

which deadline OFCCP may extend for 

good cause. If the contractor does not 

respond or OFCCP determines that the 

contractor’s response did not resolve the 

indicators of discrimination in the 

Predetermination Notice, OFCCP will 

proceed with the review. 

(b) Notice of Violation. If a 

compliance evaluation by OFCCP 

indicates a violation of the equal 

opportunity clause, OFCCP will issue a 

Notice of Violation to the contractor 

requiring corrective action and inviting 

conciliation through a written 

agreement. The Notice of Violation will 

identify the violations and describe the 

recommended corrective actions. After 

the Notice of Violation is issued, OFCCP 

may include additional violations in a 

subsequent Show Cause Notice without 

amendment to the Notice of Violation. 

OFCCP will provide the contractor an 

opportunity to conciliate additional 

violations identified in the Show Cause 

Notice. 

(c) Conciliation agreement. If a 

compliance review, complaint 

investigation, or other review by OFCCP 

or its representative indicates a material 

violation of the equal opportunity 

clause, and: 

(1) If the contractor, subcontractor, or 

bidder is willing to correct the 

violations and/or deficiencies; and 

(2) If OFCCP or its representative 

determines that settlement (rather than 

referral for consideration of formal 

enforcement) is appropriate, a written 

conciliation agreement shall be 

required. The agreement shall provide 

for such remedial action as may be 

necessary to correct the violations and/ 

or deficiencies identified, including, 

where appropriate (but not limited to), 

remedies such as back pay, salary 

adjustments, and retroactive seniority. 

(d) Show cause notices. When the 

Director has reasonable cause to believe 

that a contractor has violated the equal 

opportunity clause the Director may 

issue a notice requiring the contractor to 

show cause, within 30 days, why 

monitoring, enforcement proceedings, 

or other appropriate action to ensure 

compliance should not be instituted. 

OFCCP may issue a Show Cause Notice 

without first issuing a Predetermination 

Notice or Notice of Violation when the 

contractor has failed to provide access 

to its premises for an on-site review or 

refused to provide access to witnesses, 

records, or other information. The Show 

Cause Notice will include each violation 

that OFCCP has identified at the time of 

issuance. Where OFCCP identifies 

additional violations after issuing a 

Show Cause Notice, OFCCP will modify 

or amend the Show Cause Notice. 

(e) Expedited conciliation option. 

OFCCP may agree to waive the 

procedures set forth in paragraphs (a) 

and/or (b) of this section to enter 

directly into a conciliation agreement 

with a contractor. OFCCP may offer the 

contractor this expedited conciliation 

option, but may not require or insist that 

the contractor avail itself of the 

expedited conciliation option. 

§ 60–300.64 [Removed and Reserved] 

■ 23. Remove and reserve § 60–300.64. 

■ 24. Add § 60–300.85 to read as 

follows: 

§ 60–300.85 Severability. 

Should a court of competent 

jurisdiction hold any provision(s) of this 

part to be invalid, such action will not 

affect any other provision of this part. 

PART 60–741—AFFIRMATIVE ACTION 

AND NONDISCRIMINATION 

OBLIGATIONS OF FEDERAL 

CONTRACTORS AND 

SUBCONTRACTORS REGARDING 

INDIVIDUALS WITH DISABILITIES 

■ 25. The authority citation for part 60– 

741 continues to read as follows: 

Authority: 29 U.S.C. 705 and 793; E.O. 

11758 (3 CFR, 1971–1975 Comp., p. 841). 

§ 60–741.2 April 20, 2022 [Amended] 

■ 26. Amend § 60–741.2 by removing 

the definitions for ‘‘Qualitative 

evidence’’ and ‘‘Quantitative evidence.’’ 

■ 27. Amend § 60–741.60 by revising 

paragraph (b) to read as follows: 

§ 60–741.6 0 Compliance evaluations. 

* * * * * 

(b) Where deficiencies are found to 

exist, OFCCP will make reasonable 

efforts to secure compliance through 

conciliation and persuasion, pursuant to 

§ 60–741.62. The ‘‘reasonable efforts’’ 

standard shall be interpreted 

consistently with title VII of the Civil 

Rights Act of 1964 and its requirement 

that the Equal Employment Opportunity 

Commission ‘‘endeavor to eliminate any 

such alleged unlawful employment 

practice by informal methods of 

conference, conciliation, and 

persuasion.’’ 

* * * * * 

■ 28. Revise § 60–741.62 to read as 

follows: 

§ 60–741.62 Pre-enforcement notice and 

conciliation procedures. 

(a) Predetermination Notice. If a 

compliance evaluation by OFCCP 

indicates preliminary indicators of 

discrimination, OFCCP will issue a 

Predetermination Notice describing the 

indicators and providing the contractor 

an opportunity to respond. The 

Predetermination Notice may also 

include other potential violations that 

OFCCP has identified at that stage of the 

review. After OFCCP issues the 

Predetermination Notice, the agency 

may identify additional violations and 

include them in a subsequent Notice of 

Violation or Show Cause Notice without 

amending the Predetermination Notice. 

OFCCP will provide the contractor an 

opportunity to conciliate additional 

violations identified in the Notice of 

Violation or Show Cause Notice. Any 

response to a Predetermination Notice 

must be received by OFCCP within 15 

calendar days of receipt of the Notice, 

which deadline OFCCP may extend for 

good cause. If the contractor does not 

respond or OFCCP determines that the 

contractor’s response did not resolve the 

indicators of discrimination in the 

Predetermination Notice, OFCCP will 

proceed with the review. 

(b) Notice of Violation. If a 

compliance evaluation by OFCCP 

indicates a violation of the equal 

opportunity clause, OFCCP will issue a 

Notice of Violation to the contractor 

requiring corrective action and inviting 

conciliation through a written 

agreement. The Notice of Violation will 

identify the violations and describe the 

recommended corrective actions. After 

the Notice of Violation is issued, OFCCP 

may include additional violations in a 

subsequent Show Cause Notice without 

amendment to the Notice of Violation. 

OFCCP will provide the contractor an 

opportunity to conciliate additional 

violations identified in the Show Cause 

Notice. 

(c) Conciliation agreement. If a 

compliance review, complaint 

investigation, or other review by OFCCP 

or its representative indicates a material 

violation of the equal opportunity 

clause, and: 

(1) If the contractor, subcontractor, or 

bidder is willing to correct the 

violations and/or deficiencies; and 

(2) If OFCCP or its representative 

determines that settlement (rather than 

referral for consideration of formal 

enforcement) is appropriate, a written 

conciliation agreement shall be 

required. The agreement shall provide 

for such remedial action as may be 

necessary to correct the violations and/ 

or deficiencies identified, including, 

where appropriate (but not limited to), 

remedies such as back pay, salary 

adjustments, and retroactive seniority. 

(d) Remedial benchmarks. The 

remedial action referenced in paragraph 

(c) of this section may include the 

establishment of benchmarks for the 

contractor’s outreach, recruitment, 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Proposed Rules 16155 

hiring, or other employment activities. 

The purpose of such benchmarks is to 

create a quantifiable method by which 

the contractor’s progress in correcting 

identified violations and/or deficiencies 

can be measured. 

(e) Show cause notices. When the 

Director has reasonable cause to believe 

that a contractor has violated the equal 

opportunity clause the Director may 

issue a notice requiring the contractor to 

show cause, within 30 days, why 

monitoring, enforcement proceedings, 

or other appropriate action to ensure 

compliance should not be instituted. 

OFCCP may issue a Show Cause Notice 

without first issuing a Predetermination 

Notice or Notice of Violation when the 

contractor has failed to provide access 

to its premises for an on-site review or 

refused to provide access to witnesses, 

records, or other information. The Show 

Cause Notice will include each violation 

that OFCCP has identified at the time of 

issuance. Where OFCCP identifies 

additional violations after issuing a 

Show Cause Notice, OFCCP will modify 

or amend the Show Cause Notice. 

(f) Expedited conciliation option. 

OFCCP may agree to waive the 

procedures set forth in paragraphs (a) 

and/or (b) of this section to enter 

directly into a conciliation agreement 

with a contractor. OFCCP may offer the 

contractor this expedited conciliation 

option, but may not require or insist that 

the contractor avail itself of the 

expedited conciliation option. 

§ 60–741.64 [Removed and Reserved] 

■ 29. Remove and reserve § 60–741.64. 

■ 30. Add § 60–741.84 to read as 

follows: 

§ 60–741.84 Severability. 

Should a court of competent 

jurisdiction hold any provision(s) of this 

part to be invalid, such action will not 

affect any other provision of this part. 

[FR Doc. 2022–05696 Filed 3–21–22; 8:45 am] 

BILLING CODE 4510–CM–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[MB Docket No. 22–112; RM–11919; DA 22– 

240; FRS 77494] 

Television Broadcasting Services 

Weston, West Virginia 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: The Commission has before it 

a petition for rulemaking filed by Gray 

Television Licensee, LLC (Petitioner), 

the licensee of WDTV (CBS), channel 5, 

Weston, West Virginia. The Petitioner 

requests the substitution of channel 33 

for channel 5 at Weston in the Table of 

Allotments. 

DATES: Comments must be filed on or 

before April 21, 2022 and reply 

comments on or before May 6, 2022. 

ADDRESSES: Federal Communications 

Commission, Office of the Secretary, 45 

L Street NE, Washington, DC 20554. In 

addition to filing comments with the 

FCC, interested parties should serve 

counsel for the Petitioner as follows: 

Joan Stewart, Esq., Wiley Rein LLP, 

2050 M Street NW, Washington, DC 

20036. 

FOR FURTHER INFORMATION CONTACT: 

Joyce Bernstein, Media Bureau, at (202) 

418–1647 or Joyce.Bernstein@fcc.gov. 

SUPPLEMENTARY INFORMATION: In 

support, the Petitioner states the 

proposed channel substitution serves 

the public interest because it will 

resolve significant over-the-air reception 

problems in WDTV’s existing service 

area. The Petitioner further states that 

the Commission has recognized the 

deleterious effects manmade noise has 

on the reception of digital VHF signals, 

and that the propagation characteristics 

of these channels allow undesired 

signals and noise to be receivable at 

relatively farther distances compared to 

UHF channels and nearby electrical 

devices can cause interference. A total 

of 388,223 persons are predicted to lose 

service using a contour analysis if the 

Bureau grants the channel 33 proposal. 

In evaluating the loss areas, Gray first 

considered to what extent the loss areas 

were served by other CBS affiliates, and 

concluded that all but 4,142 persons 

would continue to receive CBS service 

from other stations in the region, as well 

as continue to be well served by five or 

more television services. 

According to the Petitioner, a terrainlimited analysis using the Commission’s 

TVStudy software demonstrates that 

only 498 persons would no longer 

receive CBS network programming, or 

receive service from five or more full 

power television services. Gray also 

took into account its licensed sister 

station WVFX, which is co-located with 

WDTV and carries CBS network 

programing on a multicast channel. In 

addition, Gray relies on CBS 

programming carried on commonly 

owned and operated station WIYE–LD, 

Parkersburg, West Virginia. We note that 

while low power television stations are 

secondary and can be displaced by full 

power television stations, we believe it 

is unlikely that WIYE–LD will be 

displaced, and determined that there are 

multiple displacement channels 

available if it was displaced. 

This is a synopsis of the 

Commission’s Notice of Proposed 

Rulemaking, MB Docket No. 22–112; 

RM–11919; DA 22–240, adopted March 

9, 2022, and released March 9, 2022. 

The full text of this document is 

available for download at https://

www.fcc.gov/edocs. To request materials 

in accessible formats (braille, large 

print, computer diskettes, or audio 

recordings), please send an email to 

FCC504@fcc.gov or call the Consumer & 

Government Affairs Bureau at (202) 

418–0530 (VOICE), (202) 418–0432 

(TTY). 

This document does not contain 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995, Public Law 104–13. In addition, 

therefore, it does not contain any 

proposed information collection burden 

‘‘for small business concerns with fewer 

than 25 employees,’’ pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, see 44 U.S.C. 

3506(c)(4). Provisions of the Regulatory 

Flexibility Act of 1980, 5 U.S.C. 601– 

612, do not apply to this proceeding. 

Members of the public should note 

that all ex parte contacts are prohibited 

from the time a notice of proposed 

rulemaking is issued to the time the 

matter is no longer subject to 

Commission consideration or court 

review, see 47 CFR 1.1208. There are, 

however, exceptions to this prohibition, 

which can be found in § 1.1204(a) of the 

Commission’s rules, 47 CFR 1.1204(a). 

See §§ 1.415 and 1.420 of the 

Commission’s rules for information 

regarding the proper filing procedures 

for comments, 47 CFR 1.415 and 1.420. 

List of Subjects in 47 CFR Part 73 

Television. 

Federal Communications Commission. 

Thomas Horan, 

Chief of Staff, Media Bureau. 

Proposed Rule 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 73 as follows: 

PART 73—RADIO BROADCAST 

SERVICES 

■ 1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 155, 301, 303, 

307, 309, 310, 334, 336, 339. 

■ 2. In § 73.622(j), amend the PostTransition Table of DTV Allotments 

under West Virginia by revising the 

entry for Weston to read as follows: 


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