Unified Agenda of Federal Regulations

• What are the Part 60-2 Regulations?
• What are the major objectives of the changes to the regulations?
• What are the significant changes?
• What is DOL's position regarding the release, to the public, of the wage data, obtained by OFCCP?
• Who is covered by the Final Rule?
• What is the EO Survey and how does it relate to the Final Rule?
• How does this new regulation reduce burden any more than the old regulation?
• How was the regulatory package developed?
• Was there be a chance for the public to comment on the regulatory proposal?
• Will there be different requirements for smaller contractors?
• In light of the Internet, are contractors required to collect all application data?
• Will OFCCP provide assistance?
• When will the regulations be made final?
• Who can I call if I have questions about the Final Rule?
  What are the Part 60-2 Regulations?
  
  The Part 60-2 regulations are the Department of Labor's affirmative action regulations that apply to certain federal contractors and subcontractors. As part of its efforts to strengthen civil rights enforcement and close the pay gap, the 41 CFR Part 60-2 proposal is the second stage of OFCCP's regulatory reform efforts that started with revision of the Part 60-1 regulations in 1997. On Monday, November 13, 2000, the Federal Register will publish the Department's revisions to the Executive Order 11246 affirmative action regulations.
  
  The Executive Order prohibits federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in Federal Government business in one year, from discriminating in employment on the basis of race, color, religion, sex, or national origin.
  
  What are the major objectives of the changes to the regulations?
  
  The regulations will:

• Reduce the size and complexity of the written affirmative action program by:

Replacing the workforce analysis with a one-page organizational profile;

Simplifying the 8 factor availability analysis to 2 factors; and

Reducing the number of required elements of the AAP from 10 to 4.
• Provide for the annual submission of an Equal Opportunity Survey from designated contractors, requesting summary personnel and compensation data;
• Ensure confidentiality and provide protections from disclosure of submitted data; and
• Reaffirm and strengthen the no quota policy.


This should:


• Improve the compliance evaluation process through which the Department reviews contractor performance;
• Encourage compliance through contractor self-evaluation and corrective action;
• Streamline and eliminate unnecessary rules;
• Reduce the burden on federal contractors; and
• Provide the information OFCCP needs to ensure equal pay and eliminate pay discrimination.


What are the significant changes?

Identification of Records: The rule makes it clear that contractors are required to maintain and submit to OFCCP upon request complete and accurate information on their employees and applicants. This provision is necessary for OFCCP to verify EEO data.

Organizational Profile: The regulations permit contractors to replace workforce analysis required by current Section 60-2.11 with an "organizational profile." The proposed organizational profile is a shorter, simpler format, which in most cases would be based upon the contractor's existing organizational chart(s). 

Simplification of the 8 Factor Analysis: In response to contractor suggestions, OFCCP is proposing to simplify the 8-factor analysis to a 2-factor analysis. Under the current Part 60-2 regulation, the contractor must consider each of eight factors in the regulation. The "eight factor analysis" for determining availability has been one of the most frequently criticized elements of the Executive Order 11246 program. This change responds to these concerns.

Goals, Not Quotas: The regulations reaffirm that contractors are not judged to be in compliance by whether or not they have met numerical goals, but by demonstrated good faith efforts. This would codify the existing goals directive.

Equal Opportunity Survey: The Final Rule also responds to the agency's need to be able to focus its enforcement resources where they are most needed and to obtain pay data earlier in the compliance evaluation process. The Final Rule codifies the Equal Opportunity Survey now being implemented by OFCCP, to require that a substantial number of contractors submit the Survey each year. The EO Survey would collect information on a contractor's Federal government contracts and affirmative action programs, personnel activity and compensation data. The EO Survey would encourage self-audits and thereby facilitate voluntary compliance.  

Confidentiality: In response to concerns about disclosure of wage information, the agency has included new language that would provide additional assurance that wages information would not be released.

Corporate Management Compliance Evaluations: The revision would also permit the scope of a Corporate Management Compliance Evaluation (glass ceiling review) to extend beyond corporate headquarters, when OFCCP becomes aware that compliance problems exist at other corporate locations. In this way, nationwide systemic pay discrimination could be corrected.  

What is DOL's position regarding the release, to the public, of the wage data, obtained by OFCCP?

A recurring concern of some contractors is that information submitted to OFCCP may be disclosed to competitors or the public under the Freedom of Information Act (FOIA). While OFCCP must comply with FOIA, it is the agency's practice and policy not to release wage information within its possession. The new regulation reiterates OFCCP's position regarding nondisclosure. The regulation states that OFCCP will treat information contained in the Equal Opportunity Survey as confidential to the maximum extent the information is exempt from disclosure under FOIA.

Who is covered by the Final Rule?

All non-construction contractors with 50+ employees and a contract of $50,000 or more must develop and maintain a written affirmative action program for each establishment. The regulations implementing the Executive Order establish different affirmative action requirements for non-construction (i.e., supply and service) contractors than for construction contractors. The Final Rule revises the requirements for written affirmative action programs currently found at 41 CFR Part 60-2, which apply only to covered non-construction contractors.

What is the EO Survey and how does it relate to the Final Rule?

Consistent with the Administration's efforts to close the pay and opportunity gap, OFCCP has created the EO Survey to gather certain employment information from federal contractors and subcontractors. The EO Survey asks for information on a contractor's affirmative action plan, as well as summary data on personnel activity and compensation. The EO Survey also is a means by which contractors can assess the relative success of their affirmative action efforts and employment practices. The EO Survey will be codified by (incorporated into) this new regulation.

How does this new regulation reduce burden any more than the old regulation?

Contractors' affirmative action programs will be smaller, and will take less time to prepare. We estimate that the proposed changes to the regulations will decrease the total estimated annualized cost to contractors of developing, maintaining and updating an AAP by $89,357,163. The estimated average cost savings per respondent is $831. Specifically:



The proposed change from the workforce analysis to the organizational profile will reduce the burden of developing, maintaining and updating an AAP by 10%





The proposed reduction of availability factors from 8 to 2 will reduce the burden of developing, maintaining and updating an AAP by 10%





The reduction in the additional required elements of AAPs will reduce the burden of developing, maintaining and updating an AAP by 20%





The requirement that contractors be able to identify the gender, race and ethnicity of employees and applicants in records maintained by the contractor, and the Equal Opportunity Survey, will result in burden increases, but these will be more than offset by the burden reductions mentioned and the new flexibility that the regulations provide.



How was the regulatory package developed?

OFCCP engaged in broad consultations with its stakeholders - employer groups, civil rights groups, and women's rights groups - about revising the requirements for the written AAP, over the course of several years. After considerable thought and discussion within the Department, on May 4, 2000, OFCCP published the proposed rule, 65 FR 26088, to revise specific regulations.

Was there be a chance for the public to comment on the regulatory proposal?

Yes, there was a 60-day public comment period that began on May 4, the date of Federal Register publication of the Notice of Proposed Rule Making. The comment period closed on July 3, 2000. OFCCP received a total of 187 comments within the comment period from five contractor advocacy organizations, 137 labor, civil rights, and women's advocacy organizations and their individual members, four law firms; 14 contractors, 17 consulting firms, 9 civil rights and affirmative action officials of state and local governments and institutions of higher learning; and one Member of Congress. OFCCP reviewed and carefully considered all of the comments in the development of this Final Rule.

Will there be different requirements for smaller contractors?

Yes. The regulations would reduce part of the burden for smaller contractors by allowing contractors with fewer than 150 employees to use EEO-1 categories for their job groups, rather than being required to create job groups tailored to their own organization. (Creating job groups is one of the steps contractors use to determine whether there is "underutilization" of groups that have historically been excluded and a need to set goals.)

In light of the Internet, are contractors required to collect all application data?

Consistent with current regulations, Federal contractors are required to maintain any data that they collect and use in their hiring (selection) processes regardless of how the information is collected.

Will OFCCP provide assistance?

Yes. OFCCP will have information available through its regional offices, its OMBUD's office at 1-888-37-OFCCP and its website.

When will the regulations be made final?

The regulations are effective 30 days from the date of publication in the Federal Register.

Who can I call if I have questions about the Final Rule?

Questions regarding the regulatory proposal may be directed to James I. Melvin, OFCCP Director, Division of Policy, Planning and Program Development at (202) 693-0102 (voice), (202) 693-1308 (TTY). Most Federal Register announcements are posted on the Department of Labor web site. Scroll down to Employment Standards Administration, then click on the November 13, 2000 Notice of Final Rule or from the OFCCP web site.

This rule may also be accessed via: http://www.access.gpo.gov/su_docs/.

• ADA
• E. O. 11246
• Section 503
• 38 USC 4212
• 41 CFR Chapter 60
• Final Rules
• Notices
• Proposed Rules & Comments Received