Implementation of Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors, 72985-72995 [2014-28902]

Download as PDF Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 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. rmajette on DSK2VPTVN1PROD with RULES 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). VerDate Sep<11>2014 12:49 Dec 08, 2014 Jkt 235001 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 Office of Federal Contract Compliance Programs, Labor. ACTION: Final rule. AGENCY: 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, SUMMARY: PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 72985 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 1 OFCCP 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. E:\FR\FM\09DER1.SGM 09DER1 72986 Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations rmajette on DSK2VPTVN1PROD with RULES 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 2 The 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). 3 Unless otherwise stated, the term ‘‘contractor’’ includes both ‘‘contractors’’ and ‘‘subcontractors,’’ and the term ‘‘contract’’ also includes ‘‘subcontracts.’’ VerDate Sep<11>2014 12:49 Dec 08, 2014 Jkt 235001 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 4 While 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. PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 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 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). E:\FR\FM\09DER1.SGM 09DER1 Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 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). 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 rmajette on DSK2VPTVN1PROD with RULES 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). 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. 6 This 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.’’ 7 Although 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. VerDate Sep<11>2014 12:49 Dec 08, 2014 Jkt 235001 Sections Revised 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 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 72987 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 E:\FR\FM\09DER1.SGM 09DER1 72988 Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 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. rmajette on DSK2VPTVN1PROD with RULES 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 8 There 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. VerDate Sep<11>2014 12:49 Dec 08, 2014 Jkt 235001 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 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 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 9 The 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.’’ E:\FR\FM\09DER1.SGM 09DER1 Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations rmajette on DSK2VPTVN1PROD with RULES 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 10 This 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 VerDate Sep<11>2014 12:49 Dec 08, 2014 Jkt 235001 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 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). 11 Recent 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). 12 U.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. 13 See id.; U.S. Department of Commerce, International Trade Administration, National Travel PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 72989 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 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). 14 This figure is derived from tables in the two above-cited International Trade Administration reports. E:\FR\FM\09DER1.SGM 09DER1 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 ................................................................................................................................ Amending the Equal Opportunity Clause ......................................................................................................... Posting the notice for employees and applicants ............................................................................................ Amending the tag line for solicitations and job advertisements ...................................................................... 1,586 397 1,983 198 $81,806 12,334 50,760 6,151 One-time Burden ....................................................................................................................................... 4,164 151,051 Estimated Recurring Burden: Reporting denied visas to Department of State and OFCCP .......................................................................... Total Annual Recurring Burden ........................................................................................................................ Estimated Operations and Maintenance .......................................................................................................... 3,172 3,172 0 120,235 120,235 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 498,414 124,604 623,018 62,302 $25,708,194 3,871,135 15,947,703 1,935,567 One-time Burden ....................................................................................................................................... Total Annual Recurring Burden ................................................................................................................. Estimated Operations and Maintenance ................................................................................................... rmajette on DSK2VPTVN1PROD with RULES Estimated One-Time Burden: Regulatory Familiarization ................................................................................................................................ Amending the Equal Opportunity Clause ......................................................................................................... Posting the notice for employees and applicants ............................................................................................ Amending the tag line for solicitations and job advertisements .............................................................................. 1,308,338 0 0 47,462,599 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 VerDate Sep<11>2014 12:49 Dec 08, 2014 Jkt 235001 by the visa reporting provision and $48,260,061 or $97 per contractor for those contractors not affected by the PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 visa reporting provision. If combined, the total cost of the rule would be $48,533,885. Yet, this rule applies to E:\FR\FM\09DER1.SGM 09DER1 72991 Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 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 Year Year Year Year Year 1 2 3 4 5 .............................................................................................................. .............................................................................................................. .............................................................................................................. .............................................................................................................. .............................................................................................................. 317 634 952 1,268 1,586 One-time cost Recurring cost $30,718 30,718 30,718 30,718 30,718 Total cost $24,047 48,094 72,141 96,188 120,235 $54,765 78,812 102,859 126,906 150,953 * 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 Year Year Year Year Year 1 2 3 4 5 ...................................................................................................................................................................... ...................................................................................................................................................................... ...................................................................................................................................................................... ...................................................................................................................................................................... ...................................................................................................................................................................... 99,683 99,683 99,683 99,683 99,683 Cost $9,652,012 9,652,012 9,652,012 9,652,012 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. rmajette on DSK2VPTVN1PROD with RULES 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 15 Small Business Administration, ‘‘Characteristics of Recent Federal Small Business VerDate Sep<11>2014 12:49 Dec 08, 2014 Jkt 235001 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 Contracting,’’ May 2012, http://www.sba.gov/sites/ default/files/397tot.pdf (last accessed Nov. 28, 2014). PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\09DER1.SGM 09DER1 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] Estimated annual burden hours Requirement Monetization Amending the Equal Opportunity Clause ................................................................................................................ Amending the tag line for solicitations and job advertisements .............................................................................. Reporting denied visas to Department of State and OFCCP ................................................................................. 79 40 1,269 $2,467 1,230 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] Estimated annual burden hours Requirement Monetization 24,921 12,460 0 $774,227 387,113 0 Total Annual Cost ............................................................................................................................................. rmajette on DSK2VPTVN1PROD with RULES Amending the Equal Opportunity Clause ................................................................................................................ Amending the tag line for solicitations and job advertisements .............................................................................. Reporting denied visas to Department of State and OFCCP ................................................................................. 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. VerDate Sep<11>2014 12:49 Dec 08, 2014 Jkt 235001 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 foreign- PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 based 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 E:\FR\FM\09DER1.SGM 09DER1 Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 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. 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) List of Subjects 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. rmajette on DSK2VPTVN1PROD with RULES 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 VerDate Sep<11>2014 12:49 Dec 08, 2014 Jkt 235001 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 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 72993 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 E:\FR\FM\09DER1.SGM 09DER1 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 VerDate Sep<11>2014 12:49 Dec 08, 2014 Jkt 235001 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 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 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 E:\FR\FM\09DER1.SGM 09DER1 Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 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. 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: rmajette on DSK2VPTVN1PROD with RULES 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. 12:49 Dec 08, 2014 Jkt 235001 PART 60–2—AFFIRMATIVE ACTION PROGRAMS 9. Revise the authority citation for 41 CFR part 60–2 to read as follows: 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: ■ ■ 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. § 60–4.3 10. Amend § 60–2.16 by revising paragraph (e)(2) to read as follows: ■ (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: VerDate Sep<11>2014 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 72995 § 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. PO 00000 Frm 00029 Fmt 4700 Sfmt 9990 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 E:\FR\FM\09DER1.SGM 09DER1

Agencies

[Federal Register Volume 79, Number 236 (Tuesday, December 9, 2014)]
[Rules and Regulations]
[Pages 72985-72995]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-28902]


=======================================================================
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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.

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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\
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    \1\ OFCCP 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.
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    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

[[Page 72986]]

Opportunity.'' The new EO added sexual orientation and gender identity 
to the prohibited bases of discrimination in EO 11246 (``the protected 
bases'').\2\
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    \2\ The 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-workplace-equality-good-business-0 (last 
accessed Nov. 28, 2014).
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    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.'''
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    \3\ Unless otherwise stated, the term ``contractor'' includes 
both ``contractors'' and ``subcontractors,'' and the term 
``contract'' also includes ``subcontracts.''
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    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.
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    \4\ While 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.
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    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 Sec.  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 Sec. Sec.  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 Sec.  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\
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    \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 Sec.  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).
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    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

[[Page 72987]]

tracks the language of the Executive Order.\6\
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    \6\ This 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.''
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    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.
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    \7\ Although 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.
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    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: Sec. Sec.  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

[[Page 72988]]

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.
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    \8\ There 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.
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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 x 1 hour 
= 500,000 hours). We calculate the total estimated cost as $25,790,000 
(500,000 hours x $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 x 0.25 hours). The 
estimated cost for incorporating the changes into the Equal Opportunity 
Clause is $3,883,438 ((125,000 hours x 0.25 x $51.58) + (125,000 x 0.75 
x $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 x 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 x 0.05 
x $51.58) + (625,000 hours x 0.95 x $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 x 0.25

[[Page 72989]]

hours). The cost for incorporating the changes into the Equal 
Opportunity Clause is $1,941,719 ((62,500 hours x 0.25 x $51.58) + 
(62,500 x 0.75 x $24.23) = $1,941,719).
---------------------------------------------------------------------------

    \9\ The 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.''
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \10\ This 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/special-report-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).
    \11\ Recent 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).
    \12\ U.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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \13\ See 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).
    \14\ This figure is derived from tables in the two above-cited 
International Trade Administration reports.
---------------------------------------------------------------------------

    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 x 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 x 0.50 x 
$51.58) + (3,172 hours x 0.50 x $24.23) = $120,235).
    The revised regulations incorporate the terms ``sexual 
orientation'' and ``gender identity'' into Sec. Sec.  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

[[Page 72990]]

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 
Sec.  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 x 2 pages x 10 copies x $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 non-discrimination 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                   397          12,334
     Clause.............................
    Posting the notice for employees and           1,983          50,760
     applicants.........................
    Amending the tag line for                        198           6,151
     solicitations and job
     advertisements.....................
                                         -------------------------------
        One-time Burden.................           4,164         151,051
------------------------------------------------------------------------
Estimated Recurring Burden:
    Reporting denied visas to Department           3,172         120,235
     of State and OFCCP.................
    Total Annual Recurring Burden.......           3,172         120,235
    Estimated Operations and Maintenance               0           2,538
                                         -------------------------------
        Total Burden and Cost of the               7,336         273,824
         Rule...........................
------------------------------------------------------------------------


   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               124,604       3,871,135
     Clause.............................
    Posting the notice for employees and         623,018      15,947,703
     applicants.........................
Amending the tag line for solicitations           62,302       1,935,567
 and job advertisements.................
                                         -------------------------------
        One-time Burden.................       1,308,338      47,462,599
        Total Annual Recurring Burden...               0               0
        Estimated Operations and                       0         797,462
         Maintenance....................
                                         -------------------------------
            Total Burden and Cost of the       1,308,338      48,260,061
             Rule.......................
------------------------------------------------------------------------

    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

[[Page 72991]]

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.
---------------------------------------------------------------------------

    \15\ Small 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).

               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

[[Page 72992]]

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]
------------------------------------------------------------------------
                                             Estimated
               Requirement                 annual burden   Monetization
                                               hours
------------------------------------------------------------------------
Amending the Equal Opportunity Clause...              79          $2,467
Amending the tag line for solicitations               40           1,230
 and job advertisements.................
Reporting denied visas to Department of            1,269          48,094
 State and OFCCP........................
                                         -------------------------------
    Total Annual Cost...................           1,388          51,791
------------------------------------------------------------------------


Table 6--Estimated Annual PRA Burden for Contractors Not Affected by the
                        Visa Reporting Provision
                                [3 years]
------------------------------------------------------------------------
                                             Estimated
               Requirement                 annual burden   Monetization
                                               hours
------------------------------------------------------------------------
Amending the Equal Opportunity Clause...          24,921        $774,227
Amending the tag line for solicitations           12,460         387,113
 and job advertisements.................
Reporting denied visas to Department of                0               0
 State and OFCCP........................
                                         -------------------------------
    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 for-profit; 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 foreign-based 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

[[Page 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

0
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.


0
2. Revise Sec.  60-1.1 to read as follows:


Sec.  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.


0
3. Amend Sec.  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:


Sec.  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

[[Page 72994]]

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.
* * * * *

0
4. Revise Sec.  60-1.8 to read as follows:


Sec.  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.


0
5. Revise Sec.  60-1.10 to read as follows:


Sec.  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

0
6. Amend Sec.  60-1.20 by revising paragraph (a) introductory text to 
read as follows:


Sec.  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:
* * * * *

0
7. Amend Sec.  60-1.41 by revising the introductory text and paragraphs 
(a) and (c) to read as follows:


Sec.  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 Sec.  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

[[Page 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;
* * * * *

0
8. Revise Sec.  60-1.42 to read as follows:


Sec.  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 Sec.  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

0
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.



0
10. Amend Sec.  60-2.16 by revising paragraph (e)(2) to read as 
follows:


Sec.  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.
* * * * *

0
11. Revise Sec.  60-2.35 to read as follows:


Sec.  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 Sec.  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

0
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.
0
13. Amend Sec.  60-4.3 in paragraph (a), by revising paragraph 10 in 
the clause to read as follows:


Sec.  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

0
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.


0
15. Revise Sec.  60-50.5 to read as follows:


Sec.  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