Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 72985 

1OFCCP also enforces the Vietnam Era Veterans’ 

Readjustment Assistance Act of 1974, as amended, 

38 U.S.C. 4212, which requires affirmative action 

and prohibits employment discrimination against 

certain protected veterans and section 503 of the 

Rehabilitation Act of 1973, as amended, which 

prohibits discrimination on the basis of disability 

and requires affirmative action on behalf of 

qualified individuals with disabilities. 

EPA all data supporting the 

determination. 

Under 40 CFR 766.32(b), any request 

for a waiver must be made 60 days 

before resumption of manufacture or 

importation of a chemical substance not 

being manufactured, imported, or 

processed as of June 5, 1987. 

C. NFC Request for Waiver From Testing 

and Reporting Requirements 

EPA received submissions from NFC 

dated March 18, 2014 (Refs. 1 and 2), 

May 16, 2014 (Ref. 3), and August 7, 

2014 (Ref. 4), which collectively 

requested that NFC be granted a waiver 

from the testing and reporting 

requirements of the ‘‘Polyhalogenated 

Dibenzo-p-Dioxins/Dibenzofurans; 

Testing and Reporting Requirements’’ 

(Dioxins/Furans Test Rule) 40 CFR part 

766 for the import of chloranil. EPA 

published a notice of receipt of the 

waiver request and requested public 

comment in the Federal Register on 

June 17, 2014 (Ref. 5); the Agency 

received no public comments. The 

waiver request indicates that NFC 

intends to import chloranil, a chemical 

substance subject to testing under 40 

CFR part 766, for the manufacture of a 

crude pigment. EPA determined that the 

information provided by NFC was 

insufficient to establish that any adverse 

economic impact from testing would 

likely be large enough to ‘‘drive the 

chemical substance off the market, or 

prevent resumption of manufacture or 

import of the chemical substance’’ (Ref. 

6). EPA therefore denied NFC’s waiver 

request (Ref. 7). 

III. References 

The following is a listing of the 

documents that are specifically 

referenced in this document. The docket 

includes these documents and other 

information considered by EPA, 

including documents that are referenced 

within the documents that are included 

in the docket, even if the referenced 

document is not physically located in 

the docket. For assistance in locating 

these other documents, please consult 

the technical person listed under FOR

FURTHER INFORMATION CONTACT. 

1. NFC. Letter from Phillip McCarter to 

Wendy Cleland-Hamnett, EPA/

OPPT. March 18, 2014 (Received by 

EPA on March 27, 2014). 

2. NFC. Technical Correction to Letter 

from Phillip McCarter to Wendy 

Cleland-Hamnett, EPA/OPPT. 

March 18, 2014 (Received by EPA 

on April 2, 2014). 

3. NFC. Letter from Phillip McCarter to 

Tanya Hodge Mottley EPA/OPPT. 

May 16, 2014 (Received by EPA on 

May 21, 2014). 

4. NFC. Letter from Phillip McCarter to 

Wendy Cleland-Hamnett, EPA/

OPPT. August 7, 2014 (Received by 

EPA on August 8, 2014). 

5. Receipt of Request for Waiver from 

Testing; Proposed Rule. Federal 

Register (79 FR 34484, June 17, 

2014) (FRL–9911–88). 

6. EPA. Nation Ford Chemical Waiver 

Petition for Dioxin/Furan Test Rule 

Regarding Import of Chloranil— 

Economic Assessment (contains no 

confidential business information). 

October 9, 2014. 

7. EPA. Letter from Wendy ClelandHamnett, EPA/OPPT, to Phillip 

McCarter, NFC. October 17, 2014. 

IV. Congressional Review Act (CRA) 

The Congressional Review Act (5 

U.S.C. 801 et seq.), does not apply 

because this action is not a rule, for 

purposes of 5 U.S.C. 804(3). 

List of Subjects in 40 CFR Part 766 

Environmental protection, Chloranil, 

Dibenzofurans, Dioxins, Hazardous 

substances. 

Dated: December 1, 2014. 

Wendy C. Hamnett, 

Director, Office of Pollution Prevention and 

Toxics. 

[FR Doc. 2014–28824 Filed 12–8–14; 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, and 60– 

50 

RIN 1250–AA07 

Implementation of Executive Order 

13672 Prohibiting Discrimination 

Based on Sexual Orientation and 

Gender Identity by Contractors and 

Subcontractors 

AGENCY: Office of Federal Contract 

Compliance Programs, Labor. 

ACTION: Final rule. 

SUMMARY: The Office of Federal Contract 

Compliance Programs (OFCCP) is 

revising the regulations implementing 

Executive Order (EO) 11246, as 

amended, in accordance with Executive 

Order (EO) 13672, ‘‘Further 

Amendments to Executive Order 11478, 

Equal Employment Opportunity in the 

Federal Government, and Executive 

Order 11246, Equal Employment 

Opportunity,’’ which was signed by 

President Barack Obama on July 21, 

2014. EO 13672 amended EO 11246, 

which previously only prohibited 

discrimination by Federal contractors 

and subcontractors on the bases of race, 

color, religion, sex, and national origin 

and required them to take affirmative 

measures to prevent discrimination on 

those bases from occurring. More 

specifically, EO 13672 amended section 

202 and section 203 of EO 11246, by 

substituting the phrase ‘‘sex, sexual 

orientation, gender identity, or national 

origin’’ for ‘‘sex or national origin.’’ This 

final rule implements EO 13672 by 

making the same substitution wherever 

the phrase ‘‘sex or national origin’’ 

appears in the regulations implementing 

EO 11246. 

DATES: Effective date: These regulations 

are effective April 8, 2015. 

Applicability date: These regulations 

will apply to Federal contractors who 

hold contracts entered into or modified 

on or after April 8, 2015. 

FOR FURTHER INFORMATION CONTACT: 

Debra A. Carr, Director, Division of 

Policy and Program Development, 

Office of Federal Contract Compliance 

Programs, at 200 Constitution Avenue, 

NW., Room C–3325, Washington, DC 

20210, or by calling (202) 693–0103 

(voice) or (202) 693–1337(TTY). The 

alternative formats available for copies 

of this rule are large print and electronic 

file on computer disk. The rule also is 

available on the Internet on the 

Regulations.gov Web site at http://

www.regulations.gov or on the OFCCP 

Web site at http://www.dol.gov/ofccp. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

The Office of Federal Contract 

Compliance Programs (OFCCP) is a civil 

rights and worker protection agency that 

enforces Executive Order 11246, as 

amended, which, prior to the issuance 

of Executive Order 13672, prohibited 

employment discrimination by 

companies doing business with the 

Federal Government on the bases of 

race, color, religion, sex, and national 

origin and required those companies to 

take affirmative steps to ensure 

nondiscrimination on those grounds.1

On July 21, 2014, President Barack 

Obama issued EO 13672, ‘‘Further 

Amendments to Executive Order 11478, 

Equal Employment Opportunity in the 

Federal Government, and Executive 

Order 11246, Equal Employment 


rmajette on DSK2VPTVN1PROD with RULES
72986 Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 

2The White House, FACT SHEET: Taking Action 

to Support LGBT Workplace Equality is Good For 

Business, (July 21, 2014), http://

www.whitehouse.gov/the-press-office/2014/07/21/

fact-sheet-taking-action-support-lgbt-workplaceequality-good-business-0 (last accessed Nov. 28, 

2014). 

3Unless otherwise stated, the term ‘‘contractor’’ 

includes both ‘‘contractors’’ and ‘‘subcontractors,’’ 

and the term ‘‘contract’’ also includes 

‘‘subcontracts.’’ 

4While the text of 41 CFR 60–1.11 contains the 

full list of protected characteristics, that section has 

been indefinitely suspended as per Notice of 

Further Deferral of Effective Dates of Regulations, 

46 FR 18951 (Mar. 27, 1981) and Payment of 

Membership Fees and Other Expenses to Private 

Organizations; Proposed Rule Withdrawal, 46 FR 

19004 (Mar. 27, 1981), and thus cannot be 

amended. 

5 In accordance with its long-standing practice, 

OFCCP will continue to utilize the analytical 

framework of Title VII of the Civil Rights Act of 

1964, 42 U.S.C. 2000e et seq., to determine whether 

discrimination has occurred under Executive Order 

11246. See OFCCP, FCCM § 2H01 (July 2013), 

available at http://www.dol.gov/ofccp/regs/

compliance/fccm/FCCM_FINAL_508c.pdf (last 

accessed November 28, 2014); see also OFCCP v. 

Honeywell, 77–OFC–3, Sec’y of Labor Dec. and 

Order on Mediation, June 2, 1993, at 14 and 16 & 

Sec’y of Labor Dec. and Remand Order, March 2, 

1994; OFCCP v. Illinois Institute of Technology, 80– 

OFC–11, Sec’y Final Order, December 23, 1982; 

OFCCP v. Firestone, 80–OFC–15, Sec’y Dec., July 

13, 1980, rev’d on other grounds, Firestone v. 

Marshall, 507 F. Supp. 1330 (E.D. Tex. 1981). 

Opportunity.’’ The new EO added 

sexual orientation and gender identity 

to the prohibited bases of discrimination 

in EO 11246 (‘‘the protected bases’’).2

In pertinent part, Section 2 of EO 

13672 amended numbered paragraphs 1 

and 2 of section 202 and paragraph (d) 

of section 203 of EO 11246. Section 202 

sets forth language that Government 

agencies must insert into all covered 

contracts and prime contractors must 

insert into covered subcontracts (‘‘the 

Equal Opportunity Clause’’). Prior to the 

issuance of EO 13672, numbered 

paragraph 1 of the Equal Opportunity 

Clause prohibited discrimination and 

required that contractors take 

affirmative action to ensure that job 

applicants and employees are treated 

without regard to their race, color, 

religion, sex, or national origin. 

EO 13672 amended section 202, 

numbered paragraph 1, by adding 

‘‘sexual orientation’’ and ‘‘gender 

identity’’ to the bases upon which 

Federal contractors 3 are prohibited from 

discriminating against job applicants 

and employees. It further amended the 

paragraph by requiring that contractors 

take affirmative action to ensure that 

applicants are employed, and that 

employees are treated, without regard to 

their sexual orientation or gender 

identity during their employment. EO 

13672 states, specifically, that section 

202, numbered paragraph 1, of EO 

11246 is ‘‘revised by substituting ‘sex, 

sexual orientation, gender identity or 

national origin’ for ‘sex, or national 

origin.’’’ 

Section 202, numbered paragraph 2, is 

also part of the Equal Opportunity 

Clause. This paragraph requires that 

solicitations or advertisements for 

employees state that the contractor 

considers all applicants for employment 

without regard to any of the protected 

bases. Executive Order 13672 

specifically amended this paragraph by 

substituting ‘‘sex, sexual orientation, 

gender identity, or national origin’’ for 

‘‘sex or national origin.’’ 

Section 203(d) of EO 11246 provides 

that prospective contractors may be 

required by the Secretary of Labor to 

provide a statement from any labor 

union or any agency referring workers 

or providing or supervising 

apprenticeships or other training with 

which the prospective contractor deals 

stating that their practices and policies 

do not discriminate in employment on 

any of the protected bases, as part of 

their Compliance Report. Executive 

Order 13672 amended the text of 203(d) 

by substituting ‘‘sex, sexual orientation, 

gender identity, or national origin’’ for 

‘‘sex or national origin.’’ 

Section 3 of EO 13672 directs the 

Secretary of Labor to ‘‘prepare 

regulations to implement the 

requirements of section 2’’ within 90 

days of the date of the order. Section 5 

of EO 13672 provides that section 2 

applies to Federal contracts ‘‘entered 

into on or after the effective date of the 

rules’’ promulgated by the Department 

of Labor in accordance with section 3 of 

the order. The existing OFCCP 

regulation, modeled on language from 

EO 11246 itself, defines a ‘‘Government 

contract’’ as ‘‘any agreement or 

modification thereof between any 

contracting agency and any person 

* * *’’, and thus this rule also applies 

to contracts modified on or after the 

effective date of these regulations. See 

41 CFR 60–1.3 (emphasis added). 

Accordingly, revisions have been made 

to 41 CFR part 60–1—Obligations of 

Contractors and Subcontractors, 41 CFR 

part 60–2—Affirmative Action 

Programs, 41 CFR part 60–4— 

Construction Contractors—Affirmative 

Action Requirements, and 41 CFR part 

60–50—Guidelines on Discrimination 

because of Religion or National Origin. 

The regulatory changes made by this 

final rule directly implement the 

changes to EO 11246 made by EO 

13672; specifically, the replacement of 

the words ‘‘sex, or national origin’’ with 

the words ‘‘sex, sexual orientation, 

gender identity, or national origin’’ 

throughout the EO 11246 implementing 

regulations.4 No other regulatory 

changes are being made. 

The only affirmative action 

requirements affected by this final rule 

are those contained in 41 CFR part 60– 

1. Contractors satisfy this obligation by 

including the updated Equal 

Opportunity Clause in new or modified 

subcontracts and purchase orders, 

ensuring that applicants and employees 

are treated without regard to their 

sexual orientation and gender identity, 

and by updating the equal opportunity 

language used in job solicitations and 

posting updated notices. See 41 CFR 

60–1.4(a) paragraphs 1, 2, and 7 of the 

Equal Opportunity Clause, and 60– 

1.4(b)(1) paragraphs 1, 2, and 7 of the 

Equal Opportunity Clause. This final 

rule makes no changes to the provisions 

governing reporting and information 

collection set forth at 41 CFR 60–1.7 and 

60–1.12(c). The obligations updated by 

this final rule are separate from the 

additional affirmative action 

requirements set forth in 41 CFR parts 

60–2 and 60–4 that comprise the 

contents of contractors’ written 

affirmative action programs. No changes 

are being made to the written 

affirmative action program requirements 

of 41 CFR part 60–2, or the affirmative 

action requirements contained in § 60– 

4.3(a)(7) of 41 CFR part 60–4, and thus 

those programs will continue to be 

limited to gender, race, and ethnicity. 

While the terms ‘‘sexual orientation’’ 

and ‘‘gender identity’’ will now appear 

in two sections within part 60–2 that 

include the full list of protected bases 

(in §§ 60–2.16(e)(2) and 60–2.35), the 

final rule does not require contractors to 

set placement goals on the bases of 

sexual orientation or gender identity, 

nor does it require contractors to collect 

and analyze any data on these bases. 

Section 60–2.16(e)(2) simply states that 

placement goals for women and 

minorities under the existing 

regulations may not be used as a basis 

for discrimination on one of the bases 

protected by EO 11246, including sexual 

orientation and gender identity. The 

affected provision of § 60–2.35 indicates 

that both statistical and non-statistical 

data will be considered in determining 

whether contractors have complied with 

their nondiscrimination obligations; it 

does not require contractors to collect 

any statistical data.5

In addition, as section 204(c) of EO 

11246, which provides an exemption for 

religious organizations, was not 

amended by EO 13672, this rule does 

not make changes to the corresponding 

regulation at 41 CFR 60–1.5(a)(5), which 


rmajette on DSK2VPTVN1PROD with RULES
Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 72987 

6This regulation states: ‘‘Section 202 of Executive 

Order 11246, as amended, shall not apply to a 

Government contractor or subcontractor that is a 

religious corporation, association, educational 

institution, or society, with respect to the 

employment of individuals of a particular religion 

to perform work connected with the carrying on by 

such corporation, association, educational 

institution, or society of its activities. Such 

contractors and subcontractors are not exempted or 

excused from complying with the other 

requirements contained in this Order.’’ 

7Although the Administrative Procedure Act’s 

notice and comment requirement does not apply to 

matters relating to public contracts, 5 U.S.C. 553(a), 

it is the policy of the Department of Labor not to 

rely upon that exemption. See 29 CFR 2.7. 

tracks the language of the Executive 

Order.6

Lastly, although EO 13672 adds 

‘‘gender identity’’ as an independent 

basis upon which discrimination is 

prohibited under EO 11246, nothing in 

EO 13672 or this final rule diminishes 

the pre-existing coverage of 

discrimination on the basis of gender 

identity or discrimination on the basis 

of transgender status as a form of sex 

discrimination. See Price Waterhouse v. 

Hopkins, 490 U.S. 228 (1989); Macy v. 

Holder, EEOC Appeal No. 0120120821 

(April 20, 2012); OFCCP Directive 2014– 

02, ‘‘Gender Identity and Sex 

Discrimination,’’ effective August 19, 

2014 (available online at http://

www.dol.gov/ofccp/regs/compliance/

directives/dir2014_02.html). 

Publication as a Final Rule 

OFCCP is promulgating this final rule 

without notice or an opportunity for 

public comment (‘‘notice and 

comment’’) because the Administrative 

Procedure Act’s (‘‘APA’’) ‘‘good cause’’ 

exemption allows the agency to 

dispense with notice and comment 

when ‘‘impracticable, unnecessary, or 

contrary to the public interest.’’ 5 U.S.C. 

553(b)(B).7 Notice and comment are 

unnecessary when changes to 

regulations merely restate the changes 

in the enabling authority they 

implement. Gray Panthers Advocacy 

Committee v. Sullivan, 936 F.2d 1284, 

1291 (D.C. Cir. 1991), citing Komjathy v. 

National Transportation Safety Board, 

832 F.2d 1294, 1296–97 (D.C. Cir. 1987). 

Because these final rules merely amend 

41 CFR parts 60–1, 60–2, 60–4, and 60– 

50 to conform with the amendments 

made to EO 11246 by EO 13672, 

amendments as to which OFCCP lacks 

discretion as to whether to make, notice 

and comment are unnecessary and the 

‘‘good cause’’ exemption applies to this 

final rule. 

OFCCP has previously relied on the 

‘‘good cause’’ exemption in amending 

its rules under EO 11246 without notice 

and comment to implement EO 11375, 

which amended Executive Order 11246 

to add sex as a basis of prohibited 

discrimination and replaced the term 

‘‘creed’’ with ‘‘religion;’’ OFCCP’s rule 

amended the regulations in the same 

way. Obligations of Contractors and 

Subcontractors; Miscellaneous 

Amendments; Final Rule; 34 FR 744 

(Jan. 17, 1969). Similarly, when EO 

13279 added a religious exemption to 

EO 11246, OFCCP promulgated a rule 

without notice and comment under the 

good cause exemption by restating the 

religious exemption as a new provision 

in its regulations. Affirmative Action 

Obligations of Government Contractors, 

Executive Order 11246, as Amended; 

Exemption for Religious Entities; Final 

Rule; 68 FR 56392 (Sept. 30, 2003). 

Sections Revised 

Several sections in 41 CFR chapter 60 

are being revised by this final rule: 

§§ 60–1.1, 60–1.4(a)(1), 60–1.4(a)(2), 60– 

1.4(b)(1)(1), 60–1.4(b)(1)(2), 60–1.8, 60– 

1.10, 60–1.20, 60–1.41(a), 60–1.41(c), 

60–1.42(a), 60–2.16(e)(2), 60–2.35, 60– 

4.3(a)(10), and 60–50.5. As noted above, 

in each of these sections, wherever the 

words ‘‘sex, or national origin’’ appear, 

they have been replaced with the words 

‘‘sex, sexual orientation, gender 

identity, or national origin,’’ as required 

by EO 13672. No other revisions have 

been made. However, for the 

convenience of the reader, the entire 

section or paragraph containing the 

revised language is reprinted in this 

final rule. 

Regulatory Procedures 

Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives, and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health, and safety 

effects, distributive impacts, and equity, 

dignity, and fairness concerns). Here, 

the specific changes being made to the 

regulations are required by the 

amendments to Executive Order 11246 

made by Executive Order 13672, and 

thus no less burdensome alternatives 

existed. Although this rule is not 

economically significant within the 

meaning of Executive Order 12866, it 

has been reviewed by the Office of 

Management and Budget (OMB). 

This rule replaces the words ‘‘sex, or 

national origin’’ with the words ‘‘sex, 

sexual orientation, gender identity, or 

national origin’’ wherever they appear 

in the current regulations. No other 

revisions have been made. 

Benefits of this rule include equity, 

fairness, and human dignity. Such 

benefits are difficult to quantify but 

nevertheless are important and 

specifically recognized by Executive 

Order 13563. In addition, employment 

discrimination on the basis of sexual 

orientation or gender identity, like 

employment discrimination on other 

bases prohibited by EO 11246, may have 

economic consequences. It, like other 

forms of discrimination, may lead to 

reduced productivity and lower profits. 

Contractor employees who face 

discrimination on the basis of sexual 

orientation or gender identity on the job 

may experience lower self-esteem, 

greater anxiety and conflict, and less job 

satisfaction. Such employees may also 

receive less pay and have less 

opportunity for advancement. Job 

applicants who experience 

discrimination on the basis of sexual 

orientation or gender identity may not 

be considered for a job at all, even 

though they may be well-qualified. This 

rule is designed to address these 

problems to ensure a fair and inclusive 

work environment in the context of 

Federal contractors. 

The expected costs to employers 

resulting from this rule are: Regulatory 

familiarization, incorporation of the 

modified new language into the equal 

opportunity clauses they currently use 

in covered subcontracts and purchase 

orders, the reporting of any visa denials, 

and administrative costs associated with 

providing required notices to employees 

and modifying existing job posting 

templates. OFCCP expects that other 

changes made by this rule—such as the 

prohibition of segregation of facilities on 

the basis of sexual orientation or gender 

identity will have minimal costs to 

employers. This rule does not require 

contractors to set goals for employing 

persons on the basis of sexual 

orientation or gender identify, collect 

and maintain statistics on applicants or 

employees on the basis of sexual 

orientation or gender identity, or 

conduct statistical analysis of applicants 

or employees on the basis of sexual 

orientation or gender identity. 

Therefore, the costs of performing such 

activities are not included in this 

analysis. 

Assumptions 

The estimated labor cost to 

contractors and subcontractors is based 

on U.S. Department of Labor, Bureau of 

Labor Statistics (BLS) data in the 

publication ‘‘Employer Costs for 

Employee Compensation’’ issued in 

December 2013, which lists total 


rmajette on DSK2VPTVN1PROD with RULES
72988 Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 

8There is at least one reason to believe the SAM 

data yields an underestimate of the number of 

entities affected by this rule and other reasons to 

believe the data yields an overestimate. SAM does 

not necessarily include all subcontractors, thus 

potentially leading to an underestimate, but this 

limitation of the data is offset somewhat because of 

the overlap among contractors and subcontractors; 

a firm may be a subcontractor on some activities but 

have a contract on others and thus be included in 

the SAM data. 

9The other options include using an insignia 

approved by the Director of OFCCP in job 

advertisements and including a single 

advertisement in a group of advertisements which 

includes the statement that ‘‘all qualified applicants 

will receive consideration for employment without 

regard to race, color, religion, sex, sexual 

orientation, gender identify, or national origin.’’ 

Based on OFCCP’s reviews of job advertisements, 

contractors typically use either the ‘‘equal 

opportunity employer’’ tag line or include ‘‘all 

qualified applicants will receive consideration for 

employment without regard to race, color, religion, 

sex, sexual orientation, gender identify, or national 

origin.’’ 

compensation for management, 

professional, and related occupations as 

$51.58 per hour and for administrative 

support as $24.23 per hour. OFCCP 

estimates that 25 percent of the burden 

will fall to management, professional, 

and related occupations and 75 percent 

will be administrative support. 

For purposes of analyzing the 

economic effect of rules on federal 

contractors, OFCCP typically assumes 

500,000 contractor companies or firms 

may be affected by these provisions 

because 500,000 contractor firms are 

registered in the General Service 

Administration’s System for Award 

Management (SAM). OFCCP recognizes 

that using SAM likely results in an 

overestimation of the number of covered 

contractors and subcontractors. For 

example, the SAM data includes 

recipients of Federal grants and Federal 

financial assistance, none of which are 

covered by this Rule. The SAM data also 

includes firms that do not meet the 

jurisdictional dollar threshold of EO 

11246. In addition, a large percentage of 

Federal contractors already prohibit 

discrimination based on sexual 

orientation and gender identity and/or 

operate in states or localities that do, 

and will therefore already be in 

compliance with the requirements of 

this Rule. This approach is consistent 

with the approach used in other recent 

OFCCP and WHD rulemakings.8

However, the estimate of 500,000 

contractor companies or firms does not 

include new companies and firms that 

become contractors in the future. 

OFCCP does not currently have a 

reliable data source or method for 

estimating the number of new contractor 

companies or firms each year. 

Cost of Regulatory Familiarization 

OFCCP expects that human resources 

or personnel managers at each 

contractor establishment or firm will 

spend time becoming familiar with the 

amended requirements. In order to 

minimize the burden of these changes, 

OFCCP will publish compliance 

assistance materials such as, but not 

limited to, fact sheets and ‘‘Frequently 

Asked Questions.’’ OFCCP will also host 

webinars for the contractor community 

that will describe the amended 

requirements and engage in outreach to 

identify any specific challenges 

contractors believe they face, or may 

face, when complying with the 

requirements. 

Therefore, OFCCP estimates that it 

will take 60 minutes or 1 hour for a 

management professional at each 

contractor establishment to either read 

the compliance assistance materials 

provided by OFCCP or participate in an 

OFCCP webinar to learn more about the 

amended requirements. Consequently, 

the estimated burden for rule 

familiarization is 500,000 hours 

(500,000 contractor companies × 1 hour 

= 500,000 hours). We calculate the total 

estimated cost as $25,790,000 (500,000 

hours × $51.58/hour = $25,790,000). 

Cost of Specific Provisions 

Sections 60–1.4(a) and (b) and 60– 

4.3(a) require contractors to incorporate 

this modified new language into the 

equal opportunity clauses they currently 

use in covered subcontracts and 

purchase orders. The amended Equal 

Opportunity Clause may be 

incorporated by reference. OFCCP 

estimates that contractors and 

subcontractors will spend 

approximately 15 minutes modifying 

existing contract templates to ensure the 

additional language is added. The 

estimated burden for this provision is 

125,000 hours (500,000 contractors × 

0.25 hours). The estimated cost for 

incorporating the changes into the Equal 

Opportunity Clause is $3,883,438 

((125,000 hours × 0.25 × $51.58) + 

(125,000 × 0.75 × $24.23) = $3,883,438). 

Sections 1.4(a)(1) and 1.4(b)(1) require 

contractors to notify job applicants and 

employees of their nondiscrimination 

policy by posting specific notices, 

provided by contracting officers, in 

conspicuous places. OFCCP recognizes 

that this rule requires contractors to 

update their existing postings to comply 

with the revised regulations. OFCCP 

estimates that it will take 15 minutes (or 

0.25 hours) for contractors to locate the 

revised notice on OFCCP’s Web site and 

one hour to print, copy and replace 

current posters with the revised notice. 

Therefore, OFCCP estimates that the 

burden of this provision is 625,000 

hours (500,000 contractor companies × 

1.25 hours). OFCCP assumes that 95 

percent of the time for this activity 

(finding the notice online; printing, 

copying, and posting the notice) will be 

at the administrative support level and 

5 percent (reviewing the notice) will be 

at the management, professional, and 

related occupations level. Thus, the cost 

for this provision is $15,998,438 

((625,000 hours × 0.05 × $51.58) + 

(625,000 hours × 0.95 × $24.23) = 

$15,998,438). OFCCP believes that 

contractors will have some operations 

and maintenance costs associated with 

this provision and those costs are 

detailed in the Operations and 

Maintenance discussion, below. 

Sections 60–1.4(a), paragraph 2 of the 

Equal Opportunity Clause, and 1.4(b), 

paragraph 2 of the Equal Opportunity 

Clause, require contractors to expressly 

state in solicitations for employees that 

all qualified applicants will receive 

consideration for employment without 

regard to race, color, religion, sex, 

sexual orientation, gender identity, or 

national origin. Section 60–1.41(a) 

details the options available to 

contractors for complying with this 

requirement, which range from stating 

in employment solicitations that ‘‘all 

qualified applicants will receive 

consideration for employment without 

regard to race, color, religion, sex, 

sexual orientation, gender identity, or 

national origin’’ to simply including the 

phrase ‘‘an equal opportunity 

employer.’’ 9 While some contractors 

include the detailed list, others include 

the phrase ‘‘equal opportunity 

employer.’’ OFCCP estimates that 50 

percent of contractors will include the 

detailed list, and the remainder will use 

‘‘an equal opportunity employer.’’ Thus, 

OFCCP acknowledges that 50 percent or 

250,000 contractors that include the 

detailed list will thus be affected by this 

change. OFCCP believes that contractors 

will modify their existing solicitation or 

job advertisement templates to 

incorporate the revised terminology. A 

substantial number of contractors are 

unlikely to see an increased cost, 

though, as most costs involved with 

advertisements and solicitations are not 

based on the number of words or 

specific words included. Therefore, 

OFCCP believes that the cost of the 

solicitation or advertisement will not be 

greatly impacted by adding the words 

‘‘sexual orientation’’ and ‘‘gender 

identity’’ to the advertisement. OFCCP 

believes that contractors will spend 

approximately 15 minutes modifying 

existing job posting templates to ensure 

the additional words are added. The 

burden for this provision is 62,500 

hours (250,000 contractors × 0.25 


rmajette on DSK2VPTVN1PROD with RULES
Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 72989 

10This estimated range is derived from four 

separate sources: (1) Brian W. Ward, Ph.D. et al., 

Centers for Disease Control and Prevention, Sexual 

Orientation and Health Among U.S. Adults: 

National Health Interview Survey, 2013 (July 15, 

2014), http://www.cdc.gov/nchs/data/nhsr/

nhsr077.pdf (last accessed Nov. 28, 2014) (Survey 

of approximately 35,000 adults, age 18 and over 

found 2.3 percent identified as gay/lesbian or 

bisexual. An additional 1.1 percent identified as 

‘‘something else.’’); (2) Gary J. Gates and Frank 

Newport, The Gallup Organization, Special Report: 

3.4% of U.S. Adults Identify as LGBT (October 18, 

2012), http://www.gallup.com/poll/158066/specialreport-adults-identify-lgbt.aspx?utm_

source=alert&utm_medium=email&utm_

campaign=syndication&utm_

content=morelink&utm_

term=All%20Gallup%20Headlines (last accessed 

Nov. 28, 2014) (Gallup poll of a representative 

sample of 120,000 adults conducted in 2012 found 

3.4 percent identified as LGBT); (3) Movement 

Advancement Project, Center for American 

Progress, Human Rights Campaign, A Broken 

Bargain: Discrimination, Fewer Benefits, and More 

Taxes for LGBT Workers at 5 (June 2013), http://

www.americanprogress.org/issues/lgbt/report/2013/

06/04/65133/a-broken-bargain/ (last accessed Nov. 

28, 2014) (2011 study aggregating results of five 

separate surveys conducted between 2004 and 2009 

found 3.5 percent of those surveyed identified as 

lesbian, gay, or bisexual and 0.3 percent identified 

as transgender); and (4) Jennifer C. Pizer, Brad 

Sears, Christy Mallory, and Nan D. Hunter, 

Evidence of Persistent and Pervasive Workplace 

Discrimination Against LGBT People: The Need for 

Federal Legislation Prohibiting Discrimination and 

Providing for Equal Employment Benefits, 45 Loy. 

L.A. L. Rev. 715, 717 (2012), http://

williamsinstitute.law.ucla.edu/wp-content/uploads/

Pizer-Mallory-Sears-Hunter-ENDA-LLR-2012.pdf 

(last accessed Nov. 28, 2014) (analyzing a 2002 

study from the National Survey of Family Growth 

finding 4 percent of the U.S. workforce identified 

as lesbian, gay, bisexual, or transgender). 

11Recent BLS data indicates that in October 2014 

there were approximately 156 million people in the 

civilian labor force. U.S. Department of Labor 

Bureau of Labor Statistics, Table A–1, Employment 

Status of the Civilian Population by Sex and Age, 

online at http://www.bls.gov/news.release/

empsit.t01.htm (last accessed Nov. 28, 2014). The 

estimated range of LGBT workers in the civilian 

labor force was derived by applying the 2.3 to 4.0 

percent range to the total number of people in the 

civilian labor force, while the estimated range of 

LGBT federal contractor workers was derived by 

applying the 2.3 to 4.0 percent range to the 

contractor work force data from SAM (65 million). 

12U.S. Department of Commerce, International 

Trade Administration, National Travel and Tourism 

Office, 2013 U.S. Resident Travel: Business and 

Convention Travel, available at http://

travel.trade.gov/outreachpages/download_data_

table/2013-US-Business.pdf (last accessed Nov. 28, 

2014). This data excludes U.S. resident travel to 

Canada. OFCCP does not believe the exclusion of 

Canadian travel will have any impact on the burden 

incurred. 

13See id.; U.S. Department of Commerce, 

International Trade Administration, National Travel 

and Tourism Office, 2013 United States Resident 

Travel Abroad, available at http://travel.trade.gov/ 

outreachpages/download_data_table/ 

2013_US_Travel_Abroad.pdf (last accessed Sept. 

30, 2014). 

14This figure is derived from tables in the two 

above-cited International Trade Administration 

reports. 

hours). The cost for incorporating the 

changes into the Equal Opportunity 

Clause is $1,941,719 ((62,500 hours × 

0.25 × $51.58) + (62,500 × 0.75 × $24.23) 

= $1,941,719). 

Section 60–1.8 requires contractors to 

ensure that facilities provided for 

employees are not segregated by any of 

the covered bases. This rule adds sexual 

orientation and gender identity as 

prohibited bases of segregation in the 

existing provision. OFCCP believes that 

this modification will not incur 

additional burden, as the provision does 

not require contractors to modify or 

construct additional facilities, but rather 

only provide equal access to any 

facilities that exist. 

Section 60–1.10 prohibits contractors 

from discriminating against employees 

for work to be performed in the United 

States or abroad. It provides an 

exemption for employees hired outside 

the United States. Further, if a 

contractor is unable to obtain a visa of 

entry for an employee or potential 

employee to a country in which or with 

which it is doing business, and it 

believes that refusal is due to a basis 

covered by EO 11246, as amended by 

EO 13672, then the contractor must 

immediately notify the OFCCP and the 

Department of State. Neither OFCCP nor 

the current office directors or senior 

officials in the Department of State’s 

Bureau of Political-Military Affairs have 

received any visa denial notifications 

related to the existing protected 

categories. 

There is no precise way of calculating 

how many LGBT employees of federal 

contractors will travel to foreign 

countries for work-related purposes. 

Although there is no single, 

authoritative source of labor force 

population data regarding sexual 

orientation and gender identity, separate 

independent surveys published between 

2011 and 2014 estimate that between 2.3 

and 4.0 percent of the U.S. population 

identify as LGBT.10 This represents 

approximately 3.6 to 6.2 million LGBT 

individuals in the civilian labor force, 

approximately 1.5 to 2.6 million of who 

are employed by federal contractors.11

According to the Department of 

Commerce’s International Trade 

Administration, 4,875,000 U.S. 

residents departed the country for 

business or convention purposes in 

2013, representing approximately 3.1 

percent of the civilian labor force.12 In 

the absence of data as to what percent 

of the LGBT employees in the federal 

contractor workforce would depart the 

country for business or convention 

purposes, a conservative estimate is that 

6.1 percent (double the rate of the 

general national civilian labor force) of 

LGBT employees in the federal 

contractor workforce may visit foreign 

countries for work purposes, yielding a 

total of 91,500 to 158,600 LGBT 

employees each year. 

The International Trade 

Administration tracks patterns as to 

what destinations United States 

residents travel to, both in general and 

for work purposes.13 There is very 

limited precedent for LGBT individuals 

being denied entry on the basis of 

sexual orientation or gender identity. 

There are two countries with 

immigration laws that prohibit entry of 

‘‘homosexual’’ persons, but there is no 

indication that these laws are actively 

enforced. Statistically, therefore, the 

percent of United States resident 

business travel to countries where LGBT 

individuals may face denial of entry on 

the basis of sexual orientation or gender 

identity, due to law or custom, is less 

than 1 percent.14 As an overestimate, 

presuming all LGBT federal contractor 

employees who visit these countries for 

work purposes are denied a visa on the 

basis of sexual orientation or gender 

identity, this would lead to 915 to 1,586 

incidences (or 1 percent of total LGBT 

employees who travel abroad for 

business) per year. To adjust this 

calculation from an incidence count to 

the estimate of burden on contractors, 

OFCCP assumes a ratio of one incident 

per contractor, thus an estimated 1,586 

contractors could be impacted by this 

provision. 

OFCCP estimates that it will take two 

hours for a contractor to identify from 

the Federal Acquisition Regulation 

(FAR) a contact at the Department of 

State, and prepare and send the 

notification of visa denial to the 

Department of State and OFCCP. 

Therefore, the burden is 3,172 hours per 

year (1,586 contractors × 2 hours). 

Because of the nature of this provision, 

OFCCP estimates that 50 percent of the 

time addressing this provision will be 

management and 50 percent of the time 

will be administrative. Thus, using the 

high end of the estimate, the cost of this 

provision is estimated as $120,235 

((3,172 hours × 0.50 × $51.58) + (3,172 

hours × 0.50 × $24.23) = $120,235). 

The revised regulations incorporate 

the terms ‘‘sexual orientation’’ and 

‘‘gender identity’’ into §§ 60–2.16 and 

60–4.3. As modified, these provisions 

state that goals and timetables or 

affirmative action standards shall not be 

used to discriminate against any person 

because of their race, color, religion, 

sex, sexual orientation, gender identity, 

or national origin. Because these 

incorporations merely clarify that 

affirmative action programs may not be 

used to carry out discrimination 

prohibited by other sections of the 

regulations, and do not require any 


rmajette on DSK2VPTVN1PROD with RULES
72990 Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 

change in contractors’ procedures or 

practices, OFCCP believes that there are 

no additional burdens associated with 

this modification. 

Section 60–2.35 states that each 

contractor’s compliance status with EO 

11246 and its implementing regulations 

will be determined by analysis of 

statistical data and other non-statistical 

information. The change in the 

regulation adds sexual orientation and 

gender identity to the prohibited bases 

of discrimination. However, as with 

religion, contractors are not required to 

collect, keep, or report data on gender 

identity or sexual orientation. As this 

provision merely explains OFCCP’s 

processes, no additional burden is 

incurred. 

Section 60–50.5 clarifies that 

contractors may not use the Guidelines 

contained in part 60–50 to discriminate 

against qualified applicants and 

employees on any of the protected 

bases. The revision to § 60–50.5 

incorporates the terms ‘‘sexual 

orientation’’ and ‘‘gender identity’’ into 

the list of prohibited bases of 

discrimination. This provision does not 

require any action by contractors, and 

thus does not incur any additional 

burden. 

Operations and Maintenance Costs 

OFCCP estimates that contractors will 

have some operations and maintenance 

costs in addition to the burden 

calculated above. Sections 60–1.4(a), 

paragraph 1 of the Equal Opportunity 

Clause, and 60–1.4(b), paragraph 1 of 

the Equal Opportunity Clause, require 

contractors to post a specific notice 

provided by the contracting officer for 

employees and applicants. Section 60– 

1.42 provides the text included in the 

notice. OFCCP estimates that 

contractors will comply with this 

provision by posting the notice on 

bulletin boards. The notice is publicly 

available on OFCCP’s Web site and 

prints on 2 letter-sized sheets of paper. 

OFCCP assumes that on average these 

contractors will post it on 10 bulletin 

boards. Therefore, OFCCP estimates the 

operations and maintenance cost of this 

recurring burden to be $800,000 

(500,000 × 2 pages × 10 copies × $0.08 

= $800,000). 

Summary of Total and Annual Costs 

Contractors affected by this rule will 

have different burdens based on 

whether they are required to report to 

the Department of State and OFCCP. 

Thus, in summarizing the costs, Table 1 

details the burden for those contractors 

that are affected by the visa denial 

reporting provision (‘‘the visa reporting 

provision’’). The recurring cost in Table 

1 is limited to reporting denied visas to 

the Department of State and OFCCP. 

There are no recurring burdens or costs 

for ensuring that facilities are not 

segregated, contractor funded or 

reimbursed memberships are 

nondiscriminatory, placement goals do 

not provide a prohibited preference, nor 

are there any such burdens or costs 

associated with with the nondiscrimination provisions of Part 60–50, 

or by the fact that OFCCP’s 

determination of compliance considers 

both statistical data and non-statistical 

data. Table 2 details the burden for 

those contractors that are not affected by 

the visa reporting provision. There are 

no recurring burdens or costs for this 

reporting provision; however, there are 

one-time costs. 

TABLE 1—BURDEN AND COSTS FOR CONTRACTORS AFFECTED BY THE VISA REPORTING PROVISION

Section Burden hours Costs 

Estimated One-Time Burden: 

Regulatory Familiarization ................................................................................................................................ 1,586 $81,806 

Amending the Equal Opportunity Clause ......................................................................................................... 397 12,334 

Posting the notice for employees and applicants ............................................................................................ 1,983 50,760 

Amending the tag line for solicitations and job advertisements ...................................................................... 198 6,151 

One-time Burden ....................................................................................................................................... 4,164 151,051 

Estimated Recurring Burden: 

Reporting denied visas to Department of State and OFCCP .......................................................................... 3,172 120,235 

Total Annual Recurring Burden ........................................................................................................................ 3,172 120,235 

Estimated Operations and Maintenance .......................................................................................................... 0 2,538 

Total Burden and Cost of the Rule ........................................................................................................... 7,336 273,824 

TABLE 2—BURDEN AND COSTS FOR CONTRACTORS NOT AFFECTED BY THE VISA REPORTING PROVISION

Section Burden hours Costs 

Estimated One-Time Burden: 

Regulatory Familiarization ................................................................................................................................ 498,414 $25,708,194 

Amending the Equal Opportunity Clause ......................................................................................................... 124,604 3,871,135 

Posting the notice for employees and applicants ............................................................................................ 623,018 15,947,703 

Amending the tag line for solicitations and job advertisements .............................................................................. 62,302 1,935,567 

One-time Burden ....................................................................................................................................... 1,308,338 47,462,599 

Total Annual Recurring Burden ................................................................................................................. 0 0 

Estimated Operations and Maintenance ................................................................................................... 0 797,462 

Total Burden and Cost of the Rule .................................................................................................... 1,308,338 48,260,061 

OFCCP estimates the total cost of the 

rule at $273,824 or $173 per affected 

contractor for those contractors affected 

by the visa reporting provision and 

$48,260,061 or $97 per contractor for 

those contractors not affected by the 

visa reporting provision. If combined, 

the total cost of the rule would be 

$48,533,885. Yet, this rule applies to 


rmajette on DSK2VPTVN1PROD with RULES
Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 72991 

15Small Business Administration, 

‘‘Characteristics of Recent Federal Small Business 

Contracting,’’ May 2012, http://www.sba.gov/sites/ default/files/397tot.pdf (last accessed Nov. 28, 

2014). 

contractors who enter into new and 

modified contracts on or after the 

effective date of the rule. Thus, some 

portion of the cost of the rule will not 

be realized in the first year and may be 

manifested over at least five years. 

There are a number of reasons why the 

pattern of impacts over time is difficult 

to estimate: there is limited information 

regarding the number of new Federal 

contractors in a year, the number of 

Federal contractors can be fluid, and the 

terms of contracts may range in 

duration. While it might be plausible to 

assume that approximately 20 percent of 

contracts are new or modified each year, 

this rule applies to contractors, rather 

than contracts, and thus its impacts are 

likely to be relatively high in the first 

year or two, with lesser impacts through 

the fifth year of implementation. After 

all, it is common for contractors to have 

multiple contracts, and compliance with 

this rule will be required when the first 

of such contracts is renewed or 

modified. 

However, there is no precise data with 

which to determine the number of new 

Federal contractors and subcontractors 

each year. Using a 2012 Small Business 

Administration study, OFCCP 

determined that, on average, 17.6 

percent of Federal contractors that are 

small businesses were new to Federal 

contracting.15 Recognizing that there is 

limited information regarding the 

number of new contractors in a year, 

that the terms of contracts may range in 

duration, that the rule applies to 

modifications to existing contracts, and 

taking into account the variety of 

industries affected by this rule, OFCCP 

conservatively assumes for the purposes 

of this analysis that roughly 20 percent 

of Federal contractors will be new each 

year. Thus, Table 3 shows the annual 

cost of this rule over the next five years 

for contractors affected by the reporting 

provision and Table 4 shows the annual 

cost of the rule over the next five years 

for those contractors not affected by the 

reporting provision. 

TABLE 3—ANNUAL COST SUMMARY FOR CONTRACTORS AFFECTED BY THE REPORTING PROVISIONS * 

Contractors One-time cost Recurring cost Total cost 

Year 1 .............................................................................................................. 317 $30,718 $24,047 $54,765 

Year 2 .............................................................................................................. 634 30,718 48,094 78,812 

Year 3 .............................................................................................................. 952 30,718 72,141 102,859 

Year 4 .............................................................................................................. 1,268 30,718 96,188 126,906 

Year 5 .............................................................................................................. 1,586 30,718 120,235 150,953 

* The annual cost summary includes the one-time burden which occurs in the first year the contractor is covered and the recurring burden that 

increases by 20 percent annually up through the fifth year when the entire affected universe will be covered by the rule. 

TABLE 4—ANNUAL COST SUMMARY FOR CONTRACTORS NOT AFFECTED BY THE REPORTING PROVISIONS * 

Contractors Cost 

Year 1 ...................................................................................................................................................................... 99,683 $9,652,012 

Year 2 ...................................................................................................................................................................... 99,683 9,652,012 

Year 3 ...................................................................................................................................................................... 99,683 9,652,012 

Year 4 ...................................................................................................................................................................... 99,683 9,652,012 

Year 5 ...................................................................................................................................................................... 99,683 9,652,012 

* This reflects the one-time cost associated with the provisions of this rule. 

Regulatory Flexibility Act and Executive 

Order 13272 (Consideration of Small 

Entities) 

Because no notice of proposed 

rulemaking is required for the rule 

under 5 U.S.C. 553(b)(B), the 

requirements of the Regulatory 

Flexibility Act and Executive Order 

13272, pertaining to regulatory 

flexibility analysis, do not apply to this 

rule. See 5 U.S.C. 601(2), 603(a). 

Accordingly, OFCCP has not prepared a 

regulatory flexibility analysis. 

Paperwork Reduction Act 

Compliance Date: The requirements 

apply to contracts entered into or 

modified on or after the effective date of 

these rules. Affected parties do not have 

to comply with the amended 

information collections contained in 

this rule until the Department publishes 

a Notice in the Federal Register stating 

that the OMB has approved the 

information collections under the 

Paperwork Reduction Act of 1995 

(PRA), 44 U.S.C. 3501 et seq., or until 

this rule otherwise takes effect, 

whichever is later. 

As part of its continuing effort to 

reduce paperwork burdens, the 

Department conducts a preclearance 

consultation program to provide the 

general public and Federal agencies 

with an opportunity to comment on 

collections of information in accordance 

with the Paperwork Reduction Act of 

1995 (PRA), 44 U.S.C. 3506(c)(2)(A). 

This program helps to ensure that 

requested data can be provided in the 

desired format, reporting burden (time 

and financial resources) is minimized, 

collection instruments are clearly 

understood, and the impact of collection 

requirements on respondents can be 

properly assessed. The PRA typically 

requires an agency to provide notice and 

seek public comments on any collection 

of information contained in a rule. See 

44 U.S.C. 3506(c)(2)(B); 5 CFR 1320.8. 

Persons are not required to respond to 

a collection of information until it is 

approved by OMB under the PRA. 

This rule, which implements the 

provisions of Executive Order 13672, 

contains several provisions that could 

be considered amendments to 

‘‘collections of information’’ as defined 

by the PRA. Specifically, the 

amendments to the Equal Opportunity 

Clause that is incorporated into covered 

subcontracts and purchase orders, to the 

notifications that must be given to 

employees and job applicants, and to 

the visa reporting provision contained 

in section 60–1.10. Sections 60–1.4(a), 

paragraph 1 of the Equal Opportunity 

Clause, and 60–1.4(b), paragraph 1 of 

the Equal Opportunity Clause, require 

contractors to post a notice for job 

applicants and employees. The notice is 


rmajette on DSK2VPTVN1PROD with RULES
72992 Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 

provided by Federal contracting officers. 

The disclosure of information originally 

supplied by the Federal Government to 

the recipient for the purpose of 

disclosure is not included within the 

PRA’s definition of ‘‘collection of 

information.’’ See 5 CFR 1320.3(c). 

OFCCP has determined that the posting 

requirements found in sections 60– 

1.4(a), paragraph 1 of the Equal 

Opportunity Clause, and 60–1.4(b), 

paragraph 1 of the Equal Opportunity 

Clause, do not meet the PRA’s definition 

of ‘‘collection of information.’’ 

Therefore, these provisions are not 

subject to the PRA’s requirement. 

OFCCP, however, determined that the 

amendments to paragraphs 2 and 7 of 

the Equal Opportunity Clauses at 60– 

1.4(a) and 60–1.4(b), and to the 

reporting provisions found at 60–1.10 

could be considered information 

collections, thus an information 

collection request (ICR), has been 

submitted to OMB for approval. 

Concurrently with this final rule, 

OFCCP is publishing a notice of 

proposed amended information 

collection in the Federal Register. See 

44 U.S.C. 3506(c)(2)(B); 5 CFR 1320.8. 

Number of Respondents: 

This rule affects only contractors who 

enter into new or modified contracts 

with the Federal Government; it does 

not apply to those contractors who only 

have contracts entered into or last 

modified before the effective date. Thus, 

all new non-exempt Federal contractors 

with contracts, subcontracts, federally 

assisted construction contracts or 

subcontracts in excess of $10,000 are 

required to comply with the rule. There 

are approximately 500,000 contractor 

firms registered in the General Service 

Administration (GSA)’s System for 

Award Management (SAM). OFCCP 

estimates that approximately 20 percent 

or 100,000 of its Federal contractor 

universe will be affected by this rule 

each year until its full implementation 

in five years. Therefore, OFCCP 

estimates there are 100,000 contractor 

firms affected by this rule annually. 

Summary of Paperwork Burden 

The total estimated burden for 

contractor companies to comply with 

the revised regulations is listed in the 

tables below. It is calculated based on a 

three-year approval of this information 

collection request. Table 5 shows the 

estimated PRA burden for those 

contractors affected by the visa 

reporting provision. Table 6 shows the 

estimated PRA burden for those 

contractors not affected by the visa 

reporting provision. 

TABLE 5—ESTIMATED ANNUAL PRA BURDEN FOR CONTRACTORS AFFECTED BY THE VISA REPORTING PROVISION

[3 years] 

Requirement 

Estimated 

annual burden 

hours 

Monetization 

Amending the Equal Opportunity Clause ................................................................................................................ 79 $2,467 

Amending the tag line for solicitations and job advertisements .............................................................................. 40 1,230 

Reporting denied visas to Department of State and OFCCP ................................................................................. 1,269 48,094 

Total Annual Cost ............................................................................................................................................. 1,388 51,791 

TABLE 6—ESTIMATED ANNUAL PRA BURDEN FOR CONTRACTORS NOT AFFECTED BY THE VISA REPORTING PROVISION

[3 years] 

Requirement 

Estimated 

annual burden 

hours 

Monetization 

Amending the Equal Opportunity Clause ................................................................................................................ 24,921 $774,227 

Amending the tag line for solicitations and job advertisements .............................................................................. 12,460 387,113 

Reporting denied visas to Department of State and OFCCP ................................................................................. 0 0 

Total Annual Cost ............................................................................................................................................. 37,381 1,161,340 

These paperwork burden estimates 

are summarized as follows: 

Type of Review: Amended collection. 

Agency: Office of Federal Contract 

Compliance Programs, Department of 

Labor. 

Title: Implementation of Executive 

Order 13672 Prohibiting Discrimination 

Based on Sexual Orientation and 

Gender Identity by Contractors and 

Subcontractors. 

OMB ICR Reference Number: 1250– 

0NEW. 

Affected Public: Business or other forprofit; individuals. 

Average Number of Annual 

Responses: 100,000. 

Frequency of Response: on occasion. 

Estimated Annual Burden Hours: 

38,769. 

Estimated Total Annual PRA Costs: 

$0. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This rule is not a major rule as 

defined by section 804 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996. This rule will not 

result in an annual effect on the 

economy of $100 million or more; a 

major increase in costs or prices; or 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of the United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

Unfunded Mandates Reform Act of 1995 

For purposes of the Unfunded 

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

1532, this rule does 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 rule in 

accordance with Executive Order 13132 

regarding federalism, and has 

determined that it does not have 

‘‘federalism implications.’’ This rule 

will not ‘‘have substantial direct effects 


rmajette on DSK2VPTVN1PROD with RULES
Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 72993 

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 rule does not have tribal 

implications under Executive Order 

13175 that requires a tribal summary 

impact statement. The rule does not 

have substantial direct effects on one or 

more Indian 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. 

Effects on Families 

The undersigned hereby certifies that 

the rule would not adversely affect the 

well-being of families, as discussed 

under section 654 of the Treasury and 

General Government Appropriations 

Act, 1999. 

Executive Order 13045 (Protection of 

Children) 

This rule would have no 

environmental health risk or safety risk 

that may disproportionately affect 

children. 

Environmental Impact Assessment 

A review of this rule in accordance 

with the requirements of the National 

Environmental Policy Act of 1969 

(NEPA), 42 U.S.C. 4321 et seq.; the 

regulations of the Council on 

Environmental Quality, 40 CFR 1500 et 

seq.; and DOL NEPA procedures, 29 

CFR part 11, indicates the rule would 

not have a significant impact on the 

quality of the human environment. 

There is, thus, no corresponding 

environmental assessment or an 

environmental impact statement. 

Executive Order 13211 (Energy Supply) 

This rule is not subject to Executive 

Order 13211. It will not have a 

significant adverse effect on the supply, 

distribution, or use of energy. 

Executive Order 12630 (Constitutionally 

Protected Property Rights) 

This rule is not subject to Executive 

Order 12630 because it does not involve 

implementation of a policy that has 

takings implications or that could 

impose limitations on private property 

use. 

Executive Order 12988 (Civil Justice 

Reform Analysis) 

This rule was drafted and reviewed in 

accordance with Executive Order 12988 

and will not unduly burden the Federal 

court system. The rule was: (1) 

Reviewed to eliminate drafting errors 

and ambiguities; (2) written to minimize 

litigation; and (3) written to provide a 

clear legal standard for affected conduct 

and to promote burden reduction. 

List of Subjects 

41 CFR Part 60–1 

Administrative practice and 

procedure, Equal employment 

opportunity, Gender identity, 

Government contracts, Reporting and 

recordkeeping requirements, Sexual 

orientation. 

41 CFR Part 60–2 

Equal employment opportunity, 

Gender identity, Government 

procurement, Reporting and 

recordkeeping requirements, Sexual 

orientation. 

41 CFR Part 60–4 

Construction industry, Equal 

employment opportunity, Gender 

identity, Government procurement, 

Reporting and recordkeeping 

requirements, Sexual orientation. 

41 CFR Part 60–50 

Equal employment opportunity, 

Gender identity, Government 

procurement, Religious discrimination, 

Reporting and recordkeeping 

requirements, Sexual orientation. 

Patricia A. Shiu, 

Director, Office of Federal Contract 

Compliance Programs. 

Accordingly, under authority of 

Executive Order 13672 and for the 

reasons set forth in the preamble, 

OFCCP amends Title 41 of the Code of 

Federal Regulations, Chapter 60 as 

follows: 

PART 60–1—OBLIGATIONS OF 

CONTRACTORS AND 

SUBCONTRACTORS 

■ 1. Revise the authority citation for 41 

CFR part 60–1 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. 

■ 2. Revise § 60–1.1 to read as follows: 

§ 60–1.1 Purpose and application. 

The purpose of the regulations in this 

part is to achieve the aims of parts II, III, 

and IV of Executive Order 11246 for the 

promotion and insuring of equal 

opportunity for all persons, without 

regard to race, color, religion, sex, 

sexual orientation, gender identity, or 

national origin, employed or seeking 

employment with Government 

contractors or with contractors 

performing under federally assisted 

construction contracts. The regulations 

in this part apply to all contracting 

agencies of the Government and to 

contractors and subcontractors who 

perform under Government contracts, to 

the extent set forth in this part. The 

regulations in this part also apply to all 

agencies of the Government 

administering programs involving 

Federal financial assistance which may 

include a construction contract, and to 

all contractors and subcontractors 

performing under construction contracts 

which are related to any such programs. 

The procedures set forth in the 

regulations in this part govern all 

disputes relative to a contractor’s 

compliance with his obligations under 

the equal opportunity clause regardless 

of whether or not his contract contains 

a ‘‘Disputes’’ clause. Failure of a 

contractor or applicant to comply with 

any provision of the regulations in this 

part shall be grounds for the imposition 

of any or all of the sanctions authorized 

by the order. The regulations in this part 

do not apply to any action taken to 

effect compliance with respect to 

employment practices subject to title VI 

of the Civil Rights Act of 1964. The 

rights and remedies of the Government 

hereunder are not exclusive and do not 

affect rights and remedies provided 

elsewhere by law, regulation, or 

contract; neither do the regulations limit 

the exercise by the Secretary or 

Government agencies of powers not 

herein specifically set forth, but granted 

to them by the order. 

■ 3. Amend § 60–1.4 by revising 

paragraphs (a) introductory text and 

(a)(1) and (2) and (b) introductory text 

and (b)(1) and (2) to read as follows: 

§ 60–1.4 Equal opportunity clause. 

(a) Government contracts. Except as 

otherwise provided, each contracting 

agency shall include the following equal 

opportunity clause contained in section 

202 of the order in each of its 

Government contracts (and 

modifications thereof if not included in 

the original contract): 

During the performance of this 

contract, the contractor agrees as 

follows: 

(1) The contractor will not 

discriminate against any employee or 

applicant for employment because of 

race, color, religion, sex, sexual 

orientation, gender identity, or national 

origin. The contractor will take 


rmajette on DSK2VPTVN1PROD with RULES
72994 Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 

affirmative action to ensure that 

applicants are employed, and that 

employees are treated during 

employment, without regard to their 

race, color, religion, sex, sexual 

orientation, gender identity, or national 

origin. Such action shall include, but 

not be limited to the following: 

Employment, upgrading, demotion, or 

transfer, recruitment or recruitment 

advertising; layoff or termination; rates 

of pay or other forms of compensation; 

and selection for training, including 

apprenticeship. The contractor agrees to 

post in conspicuous places, available to 

employees and applicants for 

employment, notices to be provided by 

the contracting officer setting forth the 

provisions of this nondiscrimination 

clause. 

(2) The contractor will, in all 

solicitations or advertisements for 

employees placed by or on behalf of the 

contractor, state that all qualified 

applicants will receive consideration for 

employment without regard to race, 

color, religion, sex, sexual orientation, 

gender identity, or national origin. 

* * * * * 

(b) Federally assisted construction 

contracts. (1) Except as otherwise 

provided, each administering agency 

shall require the inclusion of the 

following language as a condition of any 

grant, contract, loan, insurance, or 

guarantee involving federally assisted 

construction which is not exempt from 

the requirements of the equal 

opportunity clause: 

The applicant hereby agrees that it 

will incorporate or cause to be 

incorporated into any contract for 

construction work, or modification 

thereof, as defined in the regulations of 

the Secretary of Labor at 41 CFR chapter 

60, which is paid for in whole or in part 

with funds obtained from the Federal 

Government or borrowed on the credit 

of the Federal Government pursuant to 

a grant, contract, loan insurance, or 

guarantee, or undertaken pursuant to 

any Federal program involving such 

grant, contract, loan, insurance, or 

guarantee, the following equal 

opportunity clause: 

During the performance of this 

contract, the contractor agrees as 

follows: 

(1) The contractor will not 

discriminate against any employee or 

applicant for employment because of 

race, color, religion, sex, sexual 

orientation, gender identity, or national 

origin. The contractor will take 

affirmative action to ensure that 

applicants are employed, and that 

employees are treated during 

employment without regard to their 

race, color, religion, sex, sexual 

orientation, gender identity, or national 

origin. Such action shall include, but 

not be limited to the following: 

Employment, upgrading, demotion, or 

transfer; recruitment or recruitment 

advertising; layoff or termination; rates 

of pay or other forms of compensation; 

and selection for training, including 

apprenticeship. The contractor agrees to 

post in conspicuous places, available to 

employees and applicants for 

employment, notices to be provided 

setting forth the provisions of this 

nondiscrimination clause. 

(2) The contractor will, in all 

solicitations or advertisements for 

employees placed by or on behalf of the 

contractor, state that all qualified 

applicants will receive considerations 

for employment without regard to race, 

color, religion, sex, sexual orientation, 

gender identity, or national origin. 

* * * * * 

■ 4. Revise § 60–1.8 to read as follows: 

§ 60–1.8 Segregated facilities. 

To comply with its obligations under 

the Order, a contractor must ensure that 

facilities provided for employees are 

provided in such a manner that 

segregation on the basis of race, color, 

religion, sex, sexual orientation, gender 

identity, or national origin cannot 

result. The contractor may neither 

require such segregated use by written 

or oral policies nor tolerate such use by 

employee custom. The contractor’s 

obligation extends further to ensuring 

that its employees are not assigned to 

perform their services at any location, 

under the contractor’s control, where 

the facilities are segregated. This 

obligation extends to all contracts 

containing the equal opportunity clause 

regardless of the amount of the contract. 

The term ‘‘facilities,’’ as used in this 

section, means waiting rooms, work 

areas, restaurants and other eating areas, 

time clocks, restrooms, wash rooms, 

locker rooms, and other storage or 

dressing areas, parking lots, drinking 

fountains, recreation or entertainment 

areas, transportation, and housing 

provided for employees; Provided, That 

separate or single-user restrooms and 

necessary dressing or sleeping areas 

shall be provided to assure privacy 

between the sexes. 

■ 5. Revise § 60–1.10 to read as follows: 

§ 60–1.10 Foreign government practices. 

Contractors shall not discriminate on 

the basis of race, color, religion, sex, 

sexual orientation, gender identity, or 

national origin when hiring or making 

employee assignments for work to be 

performed in the United States or 

abroad. Contractors are exempted from 

this obligation only when hiring persons 

outside the United States for work to be 

performed outside the United States (see 

41 CFR 60–1.5(a)(3)). Therefore, a 

contractor hiring workers in the United 

States for either Federal or nonfederally 

connected work shall be in violation of 

Executive Order 11246, as amended, by 

refusing to employ or assign any person 

because of race, color, religion, sex, 

sexual orientation, gender identity, or 

national origin regardless of the policies 

of the country where the work is to be 

performed or for whom the work will be 

performed. Should any contractor be 

unable to acquire a visa of entry for any 

employee or potential employee to a 

country in which or with which it is 

doing business, and which refusal it 

believes is due to the race, color, 

religion, sex, sexual orientation, gender 

identity, or national origin of the 

employee or potential employee, the 

contractor must immediately notify the 

Department of State and the Deputy 

Assistant Secretary of such refusal. 

Subpart B—General Enforcement; 

Compliance Review and Complaint 

Procedure 

■ 6. Amend § 60–1.20 by revising 

paragraph (a) introductory text to read 

as follows: 

§ 60–1.20 Compliance evaluations. 

(a) OFCCP may conduct compliance 

evaluations to determine if the 

contractor maintains nondiscriminatory 

hiring and employment practices and is 

taking affirmative action to ensure that 

applicants are employed and that 

employees are placed, trained, 

upgraded, promoted, and otherwise 

treated during employment without 

regard to race, color, religion, sex, 

sexual orientation, gender identity, or 

national origin. A compliance 

evaluation may consist of any one or 

any combination of the following 

investigative procedures: 

* * * * * 

■ 7. Amend § 60–1.41 by revising the 

introductory text and paragraphs (a) and 

(c) to read as follows: 

§ 60–1.41 Solicitations or advertisements 

for employees. 

In solicitations or advertisements for 

employees placed by or on behalf of a 

prime contractor or subcontractor, the 

requirements of paragraph (2) of the 

equal opportunity clause in § 60–1.4 

shall be satisfied whenever the prime 

contractor or subcontractor complies 

with any of the following: 

(a) States expressly in the solicitations 

or advertising that all qualified 


rmajette on DSK2VPTVN1PROD with RULES
Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 72995 

applicants will receive consideration for 

employment without regard to race, 

color, religion, sex, sexual orientation, 

gender identity, or national origin; 

* * * * * 

(c) Uses a single advertisement, and 

the advertisement is grouped with other 

advertisements under a caption which 

clearly states that all employers in the 

group assure all qualified applicants 

equal consideration for employment 

without regard to race, color, religion, 

sex, sexual orientation, gender identity, 

or national origin; 

* * * * * 

■ 8. Revise § 60–1.42 to read as follows: 

§ 60–1.42 Notices to be posted. 

(a) Unless alternative notices are 

prescribed by the Deputy Assistant 

Secretary, the notices which contractors 

are required to post by paragraphs (1) 

and (3) of the equal opportunity clause 

in § 60–1.4 will contain the following 

language and be provided by the 

contracting or administering agencies: 

Equal Employment Opportunity Is the 

Law—Discrimination Is Prohibited by 

the Civil Rights Act of 1964 and by 

Executive Order No. 11246 

Title VII of the Civil Rights Act of 

1964—Administered by: 

The Equal Employment Opportunity 

Commission 

Prohibits discrimination because of 

Race, Color, Religion, Sex, or National 

Origin by Employers with 15 or more 

employees, by Labor Organizations, 

by Employment Agencies, and by 

Apprenticeship or Training Programs 

Any person who believes he or she has 

been discriminated against should 

contact 

The Equal Employment Opportunity 

Commission, 1801 L Street NW., 

Washington, DC 20507 

Executive Order No. 11246— 

Administered by: 

The Office of Federal Contract 

Compliance Programs 

Prohibits discrimination because of 

Race, Color, Religion, Sex, Sexual 

Orientation, Gender Identity, or 

National Origin, and requires 

affirmative action to ensure equality of 

opportunity in all aspects of 

employment. 

By all Federal Government 

Contractors and Subcontractors, and by 

Contractors Performing Work Under a 

Federally Assisted Construction 

Contract, regardless of the number of 

employees in either case. 

Any person who believes he or she has 

been discriminated against should 

contact 

The Office of Federal Contract 

Compliance Programs, U.S. 

Department of Labor, Washington, DC 

20210 

PART 60–2—AFFIRMATIVE ACTION 

PROGRAMS 

■ 9. Revise the authority citation for 41 

CFR part 60–2 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. 

■ 10. Amend § 60–2.16 by revising 

paragraph (e)(2) to read as follows: 

§ 60–2.16 Placement goals. 

* * * * * 

(e) * * * 

(2) In all employment decisions, the 

contractor must make selections in a 

nondiscriminatory manner. Placement 

goals do not provide the contractor with 

a justification to extend a preference to 

any individual, select an individual, or 

adversely affect an individual’s 

employment status, on the basis of that 

person’s race, color, religion, sex, sexual 

orientation, gender identity, or national 

origin. 

* * * * * 

■ 11. Revise § 60–2.35 to read as 

follows: 

§ 60–2.35 Compliance status. 

No contractor’s compliance status will 

be judged alone by whether it reaches 

its goals. The composition of the 

contractor’s workforce (i.e., the 

employment of minorities or women at 

a percentage rate below, or above, the 

goal level) does not, by itself, serve as 

a basis to impose any of the sanctions 

authorized by Executive Order 11246 

and the regulations in this chapter. Each 

contractor’s compliance with its 

affirmative action obligations will be 

determined by reviewing the nature and 

extent of the contractor’s good faith 

affirmative action activities as required 

under § 60–2.17, and the 

appropriateness of those activities to 

identified equal employment 

opportunity problems. Each contractor’s 

compliance with its nondiscrimination 

obligations will be determined by 

analysis of statistical data and other 

non-statistical information which would 

indicate whether employees and 

applicants are being treated without 

regard to their race, color, religion, sex, 

sexual orientation, gender identity, or 

national origin. 

PART 60–4—CONSTRUCTION 

CONTRACTORS—AFFIRMATIVE 

ACTION REQUIREMENTS 

■ 12. Revise the authority citation for 41 

CFR part 60–4 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. 

■ 13. Amend § 60–4.3 in paragraph (a), 

by revising paragraph 10 in the clause 

to read as follows: 

§ 60–4.3 Equal opportunity clauses. 

(a) * * * 

Standard Federal Equal Employment 

Opportunity Construction Contract 

Specifications (Executive Order 

11246) 

* * * * * 

10. The Contractor shall not use the 

goals and timetables or affirmative 

action standards to discriminate against 

any person because of race, color, 

religion, sex, sexual orientation, gender 

identity, or national origin. 

* * * * * 

PART 60–50—GUIDELINES ON 

DISCRIMINATION BECAUSE OF 

RELIGION OR NATIONAL ORIGIN 

■ 14. Revise the authority citation for 41 

CFR part 60–50 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. 

■ 15. Revise § 60–50.5 to read as 

follows: 

§ 60–50.5 Nondiscrimination. 

The provisions of this part are not 

intended and shall not be used to 

discriminate against any qualified 

employee or applicant for employment 

because of race, color, religion, sex, 

sexual orientation, gender identity or 

national origin. 

[FR Doc. 2014–28902 Filed 12–5–14; 1:30 pm] 

BILLING CODE 4510–CM–P 


rmajette on DSK2VPTVN1PROD with RULES