Proposed Rule2025-12276
Rescission of Executive Order 11246 Implementing Regulations
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Published
July 1, 2025
Issuing agencies
Labor Department
Abstract
The U.S. Department of Labor (DOL) proposes to rescind the regulations for Executive Order (E.O.) 11246, as amended. E.O. 11246 was revoked by E.O. 14173 on January 21, 2025. The E.O. 11246 regulations prohibited covered Federal contractors and subcontractors from discriminating in employment based on race, color, religion, sex, sexual orientation, gender identity, and national origin and required them to take affirmative action on those bases. They also prohibited these employers from taking adverse employment actions against applicants or employees because they inquired about, discussed, or disclosed information about their pay or their co-workers' pay, subject to certain limitations.
Full Text
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<title>Federal Register, Volume 90 Issue 124 (Tuesday, July 1, 2025)</title>
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[Federal Register Volume 90, Number 124 (Tuesday, July 1, 2025)]
[Proposed Rules]
[Pages 28472-28485]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-12276]
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DEPARTMENT OF LABOR
41 CFR Parts 60-1, 60-2, 60-3, 60-4, 60-20, 60-30, 60-40, 60-50 and
60-999
[Docket No. OFCCP-2025-0001]
RIN 1250-AA17
Rescission of Executive Order 11246 Implementing Regulations
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Proposed rule; request for comments.
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SUMMARY: The U.S. Department of Labor (DOL) proposes to rescind the
regulations for Executive Order (E.O.) 11246, as amended. E.O. 11246
was revoked by E.O. 14173 on January 21, 2025. The E.O. 11246
regulations prohibited covered Federal contractors and subcontractors
from discriminating in employment based on race, color, religion, sex,
sexual orientation, gender identity, and national origin and required
them to take affirmative action on those bases. They also prohibited
these employers from taking adverse employment actions against
applicants or employees because they inquired about, discussed, or
disclosed information about their pay or their co-workers' pay, subject
to certain limitations.
DATES: Comments must be received by September 2, 2025.
ADDRESSES: Comments must be submitted in one of the following two ways
(please choose only one of the ways listed):
<bullet> Electronically at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
``Submit a comment'' instructions. If you are reading this document on
<a href="http://federalregister.gov">federalregister.gov</a>, you may use the green ``SUBMIT A PUBLIC COMMENT''
button beneath this rulemaking's title to submit a comment to the
<a href="http://regulations.gov">regulations.gov</a> docket.
<bullet> You may mail written comments to the following address:
Catherine L. Eschbach, Director, Office of Federal Contract Compliance
Programs, 200 Constitution Avenue NW, Washington, DC 20210. Mailed
comments must be received by the close of the comment period.
Do not include any personally identifiable information (such as
name, address, or other contact information) or
[[Page 28473]]
confidential business information that you do not want publicly
disclosed. All comments are public records; they are publicly displayed
exactly as received, and will not be deleted, modified, or redacted.
Comments may be submitted anonymously.
Follow the search instructions on <a href="https://www.regulations.gov">https://www.regulations.gov</a> to
view public comments. A brief summary of this document will be
available on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Catherine L. Eschbach, Director,
Office of Federal Contract Compliance Programs, 200 Constitution Avenue
NW, Washington, DC 20210. Telephone: 202-693-0101. Email:
<a href="/cdn-cgi/l/email-protection#056a636666755a62706c61646b666045616a692b626a73"><span class="__cf_email__" data-cfemail="89e6efeaeaf9d6eefce0ede8e7eaecc9ede6e5a7eee6ff">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Discussion
A. Overview of Current Regulations
1. Affirmative Action Requirements
The E.O. 11246 regulations require covered contractors and
subcontractors (``contractors'') to develop and undertake affirmative
action programs. The regulations also require non-discrimination so
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. The regulations
include different affirmative action requirements for nonconstruction
and construction contractors. 41 CFR 60-1.4(a)(1).
The affirmative action requirements for nonconstruction contractors
are found at 41 CFR part 60-2. DOL first codified these regulations in
February 1970. See 35 FR 2586 (Feb. 5, 1970). As amended in 2000, by 65
FR 68042, these regulations prescribe the contents of nonconstruction
Federal contractors' affirmative action programs (AAPs) and standards
and procedures for evaluating the compliance of those programs. 41 CFR
60-2.1(a). These regulations only require affirmative action regarding
women and minorities. In effect, these regulations may act to
incentivize and induce these nonconstruction Federal contractors to
create policies and programs designed to account for race and sex in
hiring and personnel decisions.
Specifically, the regulations require nonconstruction Federal
contractors with 50 or more employees to develop and maintain a written
AAP for each of their establishments. 41 CFR 60-2.1(b). The regulations
specify that any contractor that fails to develop and maintain a
written AAP for each of its establishments is not in full compliance
with Executive Order 11246, as amended. Id. 60.2-2(a). Noncompliance,
according to these regulations, may result in a prospective contractor
being deemed ``nonresponsible'' by procuring agencies or administrative
enforcement. Id. 60-2.2(b), (c).
These regulations also specify the purpose and contents of AAPs. 41
CFR 60-2.10. Among other things, such programs must be ``action-
oriented,'' meaning they must include specific practical steps designed
to address situations where these regulations deem that women and
minorities are not being employed at a rate to be expected given their
availability in the relevant labor pool under the calculations set
forth in the regulations. Id. 60-2.10(a)(1). The regulations likewise
mandate that, when the percentage of minorities or women employed in a
particular job group is less than would reasonably be expected given
their availability percentage in that particular job group, the
contractor must establish a placement goal. Id. 60-2.15(b). This, in
essence, requires that regulated contractors take steps to achieve a
representation of minorities and women in their workforce that reflects
the estimated availability of minorities and women qualified to be
employed. Id. 60-2.12 to 60-2.15.
The affirmative action requirements for construction contractors
are found at 41 CFR part 60-4. This part applies to all contractors,
subcontractors, contracting agencies, and applicants, as defined in 41
CFR 60-1.3, that are party to or seek to enter Federal and federally
assisted construction contracts in excess of $10,000, as well as
certain Federal nonconstruction contractors awarding construction
contracts. Nonconstruction contractors and subcontractors are required
to comply with these requirements if, as a part of their Federal
contract or subcontract, construction work is necessary in whole or in
part to the performance of a nonconstruction contract or subcontract.
See 41 CFR 60-4.1. Part 60-4 defines coverage, specifies clauses to be
included in contracts, provides a procedure to ensure compliance by
covered contractors, and specifies certain recordkeeping and reporting
requirements.
Notable provisions include Sections 60-4.2, 60-4.3, and 60-4.6.
Section 60-4.2 requires all contracting officers, applicants for
construction contracts, and covered nonconstruction contractors to
include a ``Notice of Requirement for Affirmative Action to Ensure
Equal Employment Opportunity (Executive Order 11246)'' in solicitations
for offers and bids on all Federal and federally assisted construction
contracts or subcontracts. The notice includes information on minority
and female participation goals applicable to the contractor's
workforce.
Section 60-4.2 also provides that construction contractors,
contracting officers, applicants for construction contracts, and
covered nonconstruction contractors must notify DOL's Office of Federal
Contract Compliance Programs with written notification within 10
working days of the award of a covered contract in excess of $10,000.
The Section 60-4.3 regulations further require these entities to
incorporate the ``Standard Federal Equal Employment Opportunity
Construction Contract Specifications (Executive Order 11246)'' set
forth in Section 60-4.3 into all nonexempt Federal contracts and
subcontracts. These standards describe the female and minority
participation goal requirements (discussed in more detail below) and
outline specific actions covered contractors must take to ensure equal
employment opportunity in their work sites. For example, covered
contractors must maintain a working environment free of harassment,
intimidation, and coercion at all sites and must establish and maintain
a current list of minority and female recruitment sources. See 41 CFR
60-4.3(a)7(a) and (b).
Section 60-4.6 outlines participation goals and timetables for
minority and female utilization on construction projects. For women,
the participation goal is set to 6.9% of the total hours worked by the
contractor's construction workforce in each trade. For minorities,
there are participation goals for each geographic area in the United
States. These goals apply to minority groups in the aggregate and
include those groups enumerated in the definition of ``minority'' at 41
CFR 60-4.3(a)1.d. Covered contractors are required to apply the goals
to each construction trade in their workforce in the relevant
geographic area.
2. Nondiscrimination Provisions and Other Requirements
The 41 CFR part 60-1 regulations describe various obligations of
contractors pursuant to E.O. 11246. One key provision is Section 60-
1.4, which describes the equal opportunity clause that must be included
in government contracts. This section includes the requirement that
contractors state in all solicitations or advertisements for employment
that applicants will receive consideration without regard to one or
more of the protected bases and that contractors notify labor
organizations of their obligations under E.O. 11246.
[[Page 28474]]
Contractors who meet the requirements set forth in Section 60-1.7
must file an annual Employer Information Report (EEO-1 Report) with the
U.S. Equal Employment Opportunity Commission. In this report, covered
contractors include information on their workforce demographics,
including data by job category, sex, race, and ethnicity.
Section 60-1.10 requires the contractor to notify the Department of
State and the Director of DOL's Office of Federal Contract Compliance
Programs when an employee or potential employee is denied a visa of
entry to a country in which or with which it is doing business and it
believes the denial was due to one, or more, of the protected bases
covered by E.O. 11246.
Section 60-1.12 outlines the record retention requirements that
apply to covered contractors under E.O. 11246. These regulations
require contractors to preserve any personnel or employment record made
or kept for a period of not less than two years from the date of the
making of the record or the personnel action involved, whichever occurs
later. However, if the contractor has fewer than 150 employees or does
not have a contract of at least $150,000, the record retention period
is one year from the date of the making of the record or the personnel
action involved, whichever occurs later. This section also provides
that the contractor must be able to identify the gender, race and
ethnicity of each employee for any record the contractor maintains.
Where possible, the contractor must also identify the gender, race, and
ethnicity of each applicant or internet Applicant, as defined at 41 CFR
60-1.3.
Section 60-1.20 outlines the investigative methods DOL uses to
evaluate a contractor's compliance with the E.O. 11246 regulations. A
compliance evaluation may consist of one or any combination of the
investigative procedures listed in the regulations, i.e., a compliance
review, an off-site review of records, a compliance check, and/or a
focused review. This section also provides that if a contractor fails
to submit an AAP and the supporting documents within 30 calendar days
of DOL's request, DOL may initiate enforcement procedures.
Section 60-1.40 requires the development and maintenance of an AAP
under E.O. 11246. This section requires each contractor with 50 or more
employees and contracts of $50,000 or more to develop an annual AAP for
each of their establishments. Pursuant to these regulations,
contractors undertake the specific equal employment opportunity efforts
set forth in 41 CFR part 60-2 (such as analyses of the contractor's
employment processes) and document these efforts in a written AAP.
The regulations at 41 CFR part 60-3 contain the Uniform Guidelines
on Employee Selection Procedures (UGESP). UGESP applies to tests and
other selection procedures used to make employment decisions. When a
test or other selection procedure is determined to have an adverse
impact, UGESP requires the contractor to validate the test or procedure
and to retain the validation documentation. Under UGESP, each
contractor must maintain records and other information for each job
sufficient to permit analyses of the impact of its selection procedures
on the employment opportunities of people based on race, sex, or ethnic
group. Using this information, the contractor and DOL identify and
evaluate the contractor's selection procedures for adverse impact. In
this proposed rescission, DOL is proposing to rescind the 41 CFR part
60-3 regulations, as they are codified in the E.O. 11246 regulations.
This action does not impact other agencies' interpretation and
application of UGESP.
The regulations at 41 CFR part 60-20 set forth DOL's
interpretations and guidelines for enforcing its sex discrimination
protections. The regulations at 41 CFR part 60-30 provide the
administrative procedures for instituting enforcement proceedings
pursuant to E.O. 11246, Section 503 of the Rehabilitation Act of 1973
(Section 503), as amended, and the Vietnam Era Veterans' Readjustment
Assistance Act of 1974 (VEVRAA), as amended.
The regulations at 41 CFR part 60-40 describe the rules and
restrictions the agency has in place for providing public access to its
records. The 41 CFR part 60-50 regulations set forth DOL's
interpretations and guidelines for enforcing its religion and national
origin discrimination protections.
Lastly, the regulations at 41 CFR part 60-999 provide information
on Office and Management and Budget (OMB) approved information
collections relevant to the regulations. The information in this part
is outdated and refers to regulatory provisions that DOL is proposing
to rescind through this rulemaking.
B. Rescission of E.O. 11246 Implementing Regulations
On January 21, 2025, President Trump issued E.O. 14173, ``Ending
Illegal Discrimination and Restoring Merit-Based Opportunity,'' 90 FR
8633 (Jan. 31, 2025). In addition to revoking E.O. 11246, E.O. 14173
directed DOL to immediately cease the following: promoting
``diversity,'' holding Federal contractors and subcontractors
responsible for taking ``affirmative action,'' and allowing or
encouraging Federal contractors and subcontractors to engage in
workforce balancing based on race, color, sex, sexual preference,
religion, or national origin. Id. at 8634. Accordingly, DOL has
determined that it must rescind the regulations at 41 CFR parts 60-1,
60-2, 60-3, 60-4, 60-20, 60-40, and 60-50 which were promulgated under
the authority of E.O. 11246.
DOL is also proposing to modify the administrative enforcement
proceeding procedures at 41 CFR part 60-30 to remove the E.O. 11246
components. In addition to E.O. 11246, these procedures also apply to
VEVRAA and Section 503. DOL is pursuing separate rulemaking to
incorporate these procedures directly into the VEVRAA and Section 503
implementing regulations (which would make the 41 CFR part 60-30
regulations unnecessary). To implement these changes, DOL is first
proposing to modify 41 CFR part 60-30 to remove the E.O. 11246
components and retain the Section 503 and VEVRAA components. If the
VEVRAA and Section 503 rulemakings take effect, DOL will then rescind
the 41 CFR part 60-30 regulations in their entirety.
DOL is also proposing to rescind the 41 CFR part 60-999
regulations, which provide information on OMB-approved information
collections relevant to the regulations. As described earlier, the
information in this part is outdated and refers to regulatory
provisions that DOL is proposing to rescind through this rulemaking.
Further, retaining the 41 CFR part 60-999 regulations is unnecessary,
as DOL fulfills the 44 U.S.C. 3507 requirement to display its current
control numbers through other means (e.g., displaying the control
numbers on the information collections).
As a further separate and independent reason for rescission, in
light of recent course-corrections in Federal civil rights law, DOL has
concerns that the affirmative action regulations are vulnerable to
legal challenge as unlawful and should be rescinded. As recently
explained by the Supreme Court, ``[d]istinctions between citizens
solely because of their ancestry are by their very nature odious to a
free people whose institutions are founded upon the doctrine of
equality.'' Students for Fair Admissions v. Pres. & Fellows of Harv.
Coll., 600 U.S. 181, 208 (SFFA). This principle, according to the
Supreme Court, ``cannot be overridden except in the most extraordinary
case.'' Ibid. Yet,
[[Page 28475]]
the E.O. 11246 affirmative action regulations do just that. Indeed, the
41 CFR part 60-2 regulations explicitly require covered nonconstruction
Federal contractors to create personnel programs that include specific
practical steps, i.e., affirmative actions, designed to result in the
contractors employing women and minorities. 41 CFR 60-2.10(a)(1). These
regulatory requirements to take affirmative action as to women and
minorities are based on statistical assumptions about how employment
demographics should look without consideration of non-discriminatory
reasons why statistical disparities might exist in employment
demographics compared to an available labor pool. The regulatory
requirements to take affirmative actions are also imposed without any
showing that discriminatory practices towards women and minorities do
in fact exist at the employer. The premise that the mere existence of
statistical disparities is evidence of underutilization of women and
minorities is based on the fundamentally flawed assumption that each
and every federal contractor's workforce may harbor discrimination if
it does not mirror the available labor pool for women or minorities.
There are many non-discriminatory reasons that a particular contractor
might attract more female or male applicants or applicants of a
particular race and why that might be reflected in the contractor's
workforce. For example, a woman-owned business may offer a company
culture that women find more appealing than men do when considering
employment opportunities leading to a larger number of women applying
and also therefore being hired by that contractor at a greater rate
than available in the general workforce. Similarly, a company that
produces products targeted towards male demographics for sales might
also naturally attract more male than female applicants in employment.
That occurring is not evidence of discrimination or underutilization of
a particular race or sex but of labor and product market forces at
work. The E.O. 11246 regulations failed to take account of other
factors that might influence the composition of a contractor's labor
force and instead imposed uniform requirements that assumed without
evidence that but for discrimination there would be no statistical
demographic disparities between a contractor's workforce and the
available area labor force.
E.O. 11246 required non-discrimination and the regulations
expressly prohibit using placement goals as quotas or set asides. 41
CFR 60-2.16(e). As such, it would have been improper for covered
contractors to claim that OFCCP's regulations permitted them to engage
in illegal discrimination. No part of E.O. 11246's regulatory scheme
permits or requires illegal discrimination or engaging in unlawful
disparate treatment in order to fully comply with E.O. 11246's
regulatory requirements. However, in practice, contractors may have
wrongly tried to ensure that they did not incur costly and lengthy
audits or serious enforcement penalties that could jeopardize their
ability to obtain and maintain federal contracts by taking and making
legally impermissible hiring and employment actions and decisions.
The 41 CFR part 60-4 regulations similarly require covered
construction Federal contractors to set participation goals for women
and minorities based on labor market demographics without consideration
of non-discriminatory reasons for the contractor's workforce
utilization and without any showing that discriminatory practices exist
at the contractor's worksites. See 41 CFR 60-4.6.
Though the regulations state that contractors must make employment
decisions in a nondiscriminatory manner, the regulations may have
induced and incentivized these entities to consider characteristics
like race and sex when making such decisions to try to avoid, if
scheduled for a compliance evaluation, becoming entangled in a costly
audit process or to try to avoid DOL enforcement actions or
conciliation procedures--scenarios which could potentially result in
the contractor's debarment or the contractor incurring other penalties
or sanctions, including back pay liability. See 41 CFR 60-1.4(a), 41
CFR 60-1.27 and 41 CFR 60-2.16(e)(2).
Affirmative action requirements like these that place a finger on
the scale for an applicant based on their race or sex--without any
showing of actual discrimination potentially meriting remedial action--
are more legally vulnerable after the Supreme Court found certain
universities' affirmative action systems violated the Equal Protection
Clause of the Fourteenth Amendment in SFFA. 600 U.S. at 215-16; 231
(invalidating college affirmative action programs that ``concluded,
wrongly, that the touchstone of an individual's identity is not
challenges bested, skills built, or lessons learned but the color of
their skin.''). Regulations that incentivize and induce adopting
practices that can induce or incentivize disparate treatment in
employment decisions based on race or sex, ``cannot be reconciled with
the guarantees of the Equal Protection Clause.'' Id. at 230. As such,
they must be rescinded. See id. at 232 (Thomas, J. concurring) (``[A]ll
forms of discrimination based on race--including so-called affirmative
action--are prohibited under the Constitution[.]'').
Moreover, DOL's rationale for why it was constitutionally permitted
to impose these affirmative action requirements has relied on the
theory that, in the absence of discrimination, an employer's workforce
should look like the available area labor force, even absent any
express showing that discrimination caused the differences in rates of
employment based on race or sex. DOL's rationale does not support
imposing affirmative action requirements under the standards in recent
case law, much less only for women and minorities but not men or white
persons. And, even if the use of placement goals or action-oriented
measures could potentially be justified on a theory of underutilization
of employees of a particular race or sex, there is no legal
justification for limiting the placement goals and action-oriented
measures to only women and minorities. As Justice Jackson's opinion in
Ames v. Ohio Department of Youth, No. 23-1039, 05 U.S. __, (2025) (slip
op.), explains, Supreme Court caselaw has long been ``clear that the
standard for proving disparate treatment under Title VII does not vary
based on whether or not the plaintiff is a member of a majority
group.'' Id. at *6. Similarly, nothing in E.O. 11246's text justified
creating different standards or regulatory requirements for women or
minorities where the text simply imposed non-discrimination and
affirmative action requirements as to race and sex. Additionally,
nothing on the face of E.O. 11246's text justified treating race and
sex differently in the regulations from the other protected categories
of religion and national origin. If men, whites, or persons of a
particular religion or national origin were also being underutilized
based on the DOL's statistical regulatory formula, the regulations
failed to impose any affirmative action measures or require placement
goals to ensure persons with those characteristics were entitled to
equal opportunity in employment.
These regulations and the imposition of placement goals and action-
oriented items based on this reasoning relies on the unsupported
assumptions. There are many non-discriminatory reasons why an
employer's workforce may look different than the available labor force,
but these regulations impose
[[Page 28476]]
requirements including placement goals and obligations to make good
faith efforts towards meeting those goals without regard to non-
discriminatory reasons why disparities may exist. And even apart from
the issues with the foundational premise, the regulations rely on the
arbitrary grouping of all minorities together for purposes of the
affirmative action regulations' required statistical analyses.
The statistical analyses that contractors are required to undertake
in determining whether placement goals and other action-oriented
programs are required by regulation also rely on arbitrary line drawing
in determining what is the correct area labor force against which to
compare the contractor's labor force and arbitrary line drawing in the
creation of job categories. That contractors and not DOL are the ones
who determine the job categories and relevant geographic areas pursuant
to the regulations does not make this exercise any less arbitrary. It
is actually more arbitrary given that two similarly situated
contractors in the same geographic area could select different job
groups for substantially the same jobs and different geographic lines
for the local area labor force analysis despite the same recruiting
practices--and as a result as between two similarly situated
contractors, one contractor could conclude based on their arbitrary
categorization that placement goals and action oriented measures are
regulatorily required and the other contractor could conclude those
measures are not regulatorily required. This potential for unlike
outcomes as between similarly situated contractors violates the
fundamental principle that regulations should lead to like outcomes as
between regulated entities.
Rescinding these regulations will also improve the efficiency of
the Federal contracting process and decrease employer burden, as
Federal contractors will no longer be required to undertake the E.O.
11246 requirements described in detail above. Rescinding these
regulations will also provide regulatory certainty to Federal
contractors and other stakeholders by aligning the regulations with the
most recent executive orders. In addition to ensuring compliance with
E.O. 14173, rescinding these regulations is also consistent with E.O.
14168, ``Defending Women from Gender Ideology Extremism and Restoring
Biological Truth to the Federal Government,'' 90 FR 8615 (Jan. 30,
2025), which directed Federal agencies to modify regulations or
policies that use the terms ``gender'' and ``gender identity.'' Gender
identity and sexual orientation were added as protected bases to E.O.
11246 with the issuance of E.O. 13672, 79 FR 42971 (July 21, 2014),
revoked by E.O. 14173, Sec. 3(a)(iii), 90 FR 8633 (Jan. 31, 2025).
These bases were then added to the E.O. 11246 implementing regulations
pursuant to the ``Implementation of Executive Order 13672 Prohibiting
Discrimination Based on Sexual Orientation and Gender Identity by
Contractors and Subcontractors'' rule, 79 FR 72985 (Dec. 9, 2014).
Further, the proposed rescission supports the objectives of E.O.
14192, ``Unleashing Prosperity Through Deregulation,'' 90 FR 9065 (Feb.
6, 2025) and E.O. 14267, ``Reducing Anti-Competitive Regulatory
Barriers,'' 90 FR 15629 (Apr. 15, 2025) by alleviating unnecessary
regulatory burdens and removing regulatory requirements that could have
created barriers to entry for contractors who are new market
participants.
Finally, pursuant to E.O. 14173, DOL has halted enforcement of the
E.O. 11246 regulations. DOL believes that even though the E.O. 11246
regulations are null and void as there is no source of valid legal
authority supporting the regulations, formal rescission of the
regulations will avoid any potential for misunderstanding regarding the
status of the regulations by covered contractors and the general public
by removing these regulations from the Federal Register.
DOL has determined that each of these independent reasons justify
the rescission of the E.O. 11246 regulations.
II. Authority
E.O. 14173, 90 FR 8633 (Jan. 31, 2025).
III. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
E.O. 12866, ``Regulatory Planning and Review,'' 58 FR 51735 (Oct.
4, 1993), requires agencies, to the extent permitted by law, to (1)
propose or adopt a regulation only upon a reasoned determination that
its benefits justify its costs (recognizing that some benefits and
costs are difficult to quantify); (2) tailor regulations to impose the
least burden on society, consistent with obtaining regulatory
objectives, taking into account, among other things, and to the extent
practicable, the costs of cumulative regulations; (3) select, in
choosing among alternative regulatory approaches, those approaches that
maximize net benefits; (4) to the extent feasible, specify performance
objectives, rather than specifying the behavior or manner of compliance
that regulated entities must adopt; and (5) identify and assess
available alternatives to direct regulation, including providing
economic incentives to encourage the desired behavior, such as user
fees or marketable permits, or providing information upon which choices
can be made by the public.
Section 6(a) of E.O. 12866 also requires agencies to submit
``significant regulatory actions'' to the Office of Information and
Regulatory Affairs (OIRA) for review. In accordance with E.O. 12866,
DOL has determined that this proposed rescission constitutes a
``significant regulatory action'' because it would have an annual
effect on the economy of $100 million or more. See E.O. 12866 sec.
3(f)(1). Accordingly, this proposed rescission was submitted to OIRA
for review under E.O. 12866. Below is an overview of DOL's regulatory
impact analysis conducted pursuant to E.O. 12866:
(1) Need for the Regulatory Action
As discussed in detail earlier, the proposed rescission is
necessary to implement President Trump's mandate in E.O. 14173, which
revoked the E.O. 11246 authority. Further, the proposal will align
DOL's regulations with recent case law and will provide regulatory
certainty to Federal contractors and other stakeholders by aligning the
regulations with the most recent executive orders. See Discussion in
Section I(B) above.
(2) Regulatory Alternatives
This proposed rescission imposes the least regulatory burden on
Federal contractors, as it would be rescinding all the E.O. 11246
requirements (see estimated costs savings below). Alternatives include
maintaining the E.O. 11246 implementing regulations or rescinding the
affirmative action provisions while maintaining the nondiscrimination
provisions. The Department considered these alternatives but concluded
that these alternatives were not permissible because E.O. 14173 revoked
the underlying E.O. 11246 authority in its entirety. E.O. 14173 also
only provided for a 90-day period in which Federal contractors could
continue to comply with the current regulatory scheme. See E.O. 14173
at Sec. 3(b)(i). As of April 21, 2025, this 90-day period has since
passed. As such, rescinding the E.O. 11246 implementing regulations is
the most appropriate regulatory action, as it aligns the regulations
with the agency's legal authority and will provide clarity to
stakeholders about their current obligations.
[[Page 28477]]
(3) Affected Entities & Cost-Benefits Analysis
The basic requirements in E.O. 11246 apply to any business or
organization that (1) holds a single Federal contract, subcontract, or
federally assisted construction contract in excess of $10,000; (2) has
Federal contracts or subcontracts that combined total in excess of
$10,000 in any 12-month period; or (3) holds Government bills of
lading, serves as a depository of Federal funds, or is an issuing and
paying agency for U.S. savings bonds and notes in any amount. Supply
and service contractors with 50 or more employees and a single Federal
contract or subcontract of $50,000 or more also must develop and
maintain an AAP that complies with 41 CFR part 60-2. Covered
construction contractors are subject to the different affirmative
action requirements under E.O. 11246 at 41 CFR part 60-4.
DOL estimates that approximately 107,165 supply & service
establishments and 9,982 construction contractors are subject to the
E.O. 11246 requirements. These estimates are derived from available
EEO-1 and USA Spending data. See EEO-1 Reports at <a href="https://www.eeoc.gov/data/eeo-1-employer-information-report-statistics">https://www.eeoc.gov/data/eeo-1-employer-information-report-statistics</a> and USA Spending
Database at <a href="https://www.usaspending.gov/">https://www.usaspending.gov/</a> (estimates based on available
2020-2022 EEO-1 data and 2021-2023 USA Spending data). Based on case
data from the previous three fiscal years, DOL estimates an annual time
burden of 9,875,221 hours and $996,373,735 in annual monetary costs
associated with the E.O. 11246 requirements (e.g., recordkeeping,
reporting, and compliance costs). Most of the costs ($955,034,466) stem
from the AAP obligations described above. Using these estimates, the
10-year cost savings related with the proposed rescission amount to
$8,499,270,061 at a 3% discount rate or $6,998,112,173 at a 7% discount
rate.
As illustrated by this analysis, a major benefit of the proposed
rescission is the potential cost savings for covered contractors. As
noted earlier, another benefit of the proposed rescission is that it
would alleviate unnecessary regulatory burdens and remove regulatory
requirements that could create barriers to entry for contractors who
are new market participants. With the revocation of the E.O. 11246
authority, rescinding the E.O. 11246 implementing regulations will also
reduce confusion about contractors' current regulatory obligations.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis (IRFA) and a
final regulatory flexibility analysis (FRFA) for any rule that by law
must be proposed for public comment, unless the agency certifies that
the rule, if promulgated, will not have a significant economic impact
on a substantial number of small entities.
DOL reviewed this proposed rescission under the provisions of the
Regulatory Flexibility Act. This proposed rescission would eliminate
burdensome regulations. DOL has determined that the burden largely
applies to larger contractors who meet the AAP thresholds and are
scheduled for a compliance review (which subjects contractors to
additional reporting requirements). Therefore, DOL has concluded that
the impacts of the proposed rescission would not have a ``significant
economic impact on a substantial number of small entities,'' and that
the preparation of an IRFA is not warranted. DOL will transmit this
certification and supporting statement of factual basis to the Chief
Counsel for Advocacy of the Small Business Administration for review
under 5 U.S.C. 605(b). DOL welcomes comments on this topic.
C. Review Under the Paperwork Reduction Act
The purpose of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C.
3501 et seq., includes minimizing the paperwork burden on affected
entities. The PRA requires certain actions before an agency can adopt
or revise a collection of information, including publishing for public
comment a summary of the collection of information and a brief
description of the need for and proposed use of the information.
As part of its continuing effort to reduce paperwork and respondent
burden, the Department conducts a preclearance consultation program to
provide the public and Federal agencies with an opportunity to comment
on proposed and continuing collections of information in accordance
with the PRA. See 44 U.S.C. 3506(c)(2)(A). This activity helps to
ensure that the public understands the Department's collection
instructions, respondents can provide the requested data in the desired
format, reporting burden (time and financial resources) is minimized,
collection instruments are clearly understood, and the Department can
properly assess the impact of collection requirements on respondents.
A Federal agency may not conduct or sponsor a collection of
information unless it is approved by the Office of Management and
Budget (OMB) under the PRA and it displays a currently valid OMB
control number. The public is also not required to respond to a
collection of information unless it displays a currently valid OMB
control number. In addition, notwithstanding any other provisions of
law, no person will be subject to penalty for failing to comply with a
collection of information if the collection of information does not
display a currently valid OMB control number (44 U.S.C. 3512).
This rulemaking potentially affects specific information
collections related to E.O. 11246 such as OMB Control # 1250-0002,
Complaint Involving Employment Discrimination by a Federal Contractor
or Subcontractor, which includes the Department's complaint and pre-
complaint inquiry forms. Any changes will be communicated through
separate Federal Register Notices.
D. Review Under Executive Order 13132
E.O. 13132, ``Federalism,'' 64 FR 43255 (Aug. 10, 1999), imposes
certain requirements on Federal agencies formulating and implementing
policies or regulations that preempt State law or that have federalism
implications. The Executive Order requires agencies to examine the
constitutional and statutory authority supporting any action that would
limit the policymaking discretion of the States and to carefully assess
the necessity for such actions. The Executive Order also requires
agencies to have an accountable process to ensure meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications.
DOL has examined this proposed rescission and has determined that
it would not have a substantial direct effect 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.
E. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil
Justice Reform,'' imposes on Federal agencies the general duty to
adhere to the following requirements: (1) eliminate drafting errors and
ambiguity, (2) write regulations to minimize litigation, (3) provide a
clear legal standard for affected conduct
[[Page 28478]]
rather than a general standard, and (4) promote simplification and
burden reduction. 61 FR 4729 (Feb. 7, 1996). Regarding the review
required by section 3(a), section 3(b) of E.O. 12988 specifically
requires that Executive agencies make every reasonable effort to ensure
that the regulation: (1) clearly specifies the preemptive effect, if
any, (2) clearly specifies any effect on existing Federal law or
regulation, (3) provides a clear legal standard for affected conduct
while promoting simplification and burden reduction, (4) specifies the
retroactive effect, if any, (5) adequately defines key terms, and (6)
addresses other important issues affecting clarity and general
draftsmanship under any guidelines issued by the Attorney General.
Section 3(c) of E.O. 12988 requires Executive agencies to review
regulations in light of applicable standards in section 3(a) and
section 3(b) to determine whether they are met or it is unreasonable to
meet one or more of them. DOL has completed the required review and
determined that, to the extent permitted by law, this proposed
rescission meets the relevant standards of E.O. 12988.
F. Review Under the Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531).
For a regulatory action likely to result in a rule that may cause the
expenditure by State, local, and Tribal governments, in the aggregate,
or by the private sector of $100 million or more in any one year
(adjusted annually for inflation), section 202 of UMRA requires a
Federal agency to publish a written statement that estimates the
resulting costs, benefits, and other effects on the national economy. 2
U.S.C. 1532(a), (b)). The UMRA also requires a Federal agency to
develop an effective process to permit timely input by elected officers
of State, local, and Tribal governments on a ``significant
intergovernmental mandate,'' and requires an agency plan for giving
notice and opportunity for timely input to potentially affected small
governments before establishing any requirements that might
significantly or uniquely affect them.
DOL examined this proposed rescission according to UMRA and its
statement of policy and determined that the rescission does not contain
a Federal intergovernmental mandate, nor is it expected to require
expenditures of $100 million or more in any one year by State, local,
and Tribal governments, in the aggregate, or by the private sector. As
a result, the analytical requirements of UMRA do not apply.
G. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
This proposed rescission would not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, DOL has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
H. Review Under Executive Order 12630
Pursuant to E.O. 12630, ``Governmental Actions and Interference
with Constitutionally Protected Property Rights,'' 53 FR 8859 (March
18, 1988), DOL has determined that this proposed rescission would not
result in any takings that might require compensation under the Fifth
Amendment to the U.S. Constitution.
I. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to
review most disseminations of information to the public under
information quality guidelines established by each agency pursuant to
general guidelines issued by OMB. OMB's guidelines were published at 67
FR 8452 (Feb. 22, 2002). DOL has reviewed this proposed rescission
under the OMB guidelines and has concluded that it is consistent with
applicable policies in those guidelines.
J. Review Under Executive Order 13175
DOL has examined this proposed rescission and determined that it
does not have tribal implications under E.O. 13175 that would require a
tribal summary impact statement. It 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.''
K. Review Under Additional Executive Orders and Presidential Memoranda
As detailed in Part I, this proposed rescission ensures compliance
with E.O. 14173 and is consistent with E.O. 14168, ``Defending Women
from Gender Ideology Extremism and Restoring Biological Truth to the
Federal Government,'' which directed Federal agencies to modify
regulations or policies that use the terms ``gender'' and ``gender
identity.'' Further, it supports the objectives of E.O. 14192,
``Unleashing Prosperity Through Deregulation,'' and E.O. 14267,
``Reducing Anti-Competitive Regulatory Barriers,'' by alleviating
unnecessary regulatory burdens and removing regulatory requirements
that could have created barriers to entry for contractors who are new
market participants. This proposed recission, if finalized as proposed,
is expected to be an E.O. 14192 deregulatory action.
List of Subjects
Civil rights, Construction industry, Employment, Equal employment
opportunity, Government contracts, Investigations, Labor, OMB control
numbers, Paperwork Reduction Act, Reporting and recordkeeping
requirements, Religious discrimination, Reporting and recordkeeping
requirements, Sex discrimination, Women.
For the reasons stated in the preamble, and under the authority of
E.O. 14173, 90 FR 8633 (Jan. 31, 2025), DOL proposes to amend chapter
60 in title 41 of the Code of Federal Regulations by removing and
reserving parts 60-1, 60-2, 60-3, 60-4, 60-20, 60-40, 60-50 and 60-999,
and by revising part 60-30 as follows:
PART 60-1 [REMOVED AND RESERVED]
0
1. Remove and reserve 41 CFR part 60-1.
PART 60-2 [REMOVED AND RESERVED]
0
2. Remove and reserve 41 CFR part 60-2.
PART 60-3 [REMOVED AND RESERVED]
0
3. Remove and reserve 41 CFR part 60-3.
PART 60-4 [REMOVED AND RESERVED]
0
4. Remove and reserve 41 CFR part 60-4.
PART 60-20 [REMOVED AND RESERVED]
0
5. Remove and reserve 41 CFR part 60-20.
[[Page 28479]]
0
6. Revise 41 CFR part 60-30 to read as follows:
PART 60-30--RULES OF PRACTICE FOR ADMINISTRATIVE PROCEEDINGS
Authority: 29 U.S.C. 793, as amended and 38 U.S.C. 4212, as
amended.
General Provisions
Sec. 60-30.1 Applicability of rules.
This part provides the rules of practice for all administrative
proceedings instituted by the Office of Federal Contract Compliance
Programs (OFCCP), including but not limited to proceedings instituted
against construction contractors or subcontractors, which relate to the
enforcement of equal opportunity under theVietnam Era Veterans'
Readjustment Assistance Actof 1974 (VEVRAA), as amended, and Section
503 of the Rehabilitation Act of 1973 (Section 503), as amended. In the
absence of a specific provision, procedures shall be in accordance with
the Federal Rules of Civil Procedure.
Sec. 60-30.2 Waiver, modification.
Upon notice to all parties, the Administrative Law Judge may, with
respect to matters pending before him, modify or waive any rule herein
upon a determination that no party will be prejudiced and that the ends
of justice will be served thereby.
Sec. 60-30.3 Computation of time.
In computing any period of time under these rules or in an order
issued hereunder, the time begins with the day following the act,
event, or default, and includes the last day of the period, unless it
is a Saturday, Sunday, or legal holiday observed by the Federal
Government in which event it includes the next business day.
Sec. 60-30.4 Form, filing, service of pleadings and papers.
(a) Form. The original of all pleadings and papers in a proceeding
conducted under the regulations in this part shall be filed with the
Administrative Law Judge assigned to the case or with the Chief
Administrative Law Judge if the case has not been assigned. Every
pleading and paper filed in the proceeding shall contain a caption
setting forth the name of the agency instituting the proceeding, the
title of the action, the case file number assigned by the
Administrative Law Judge, and a designation of the pleading or paper
(e.g., complaint, motion to dismiss, etc.). The pleading or papers
shall be signed and shall contain the address and telephone number of
the person representing the party or the person on whose behalf the
pleading or paper was filed. Unless otherwise ordered for good cause by
the Administrative Law Judge regarding specific papers and pleadings in
a specific case, all such papers and pleadings are public documents.
(b) Service. Service upon any party shall be made by the party
filing the pleading or document in accordance with 29 CFR part 26. When
a party is represented by an attorney, the service shall be upon the
attorney.
(c) Proof of service. A certificate of the person serving the
pleading or other document, setting forth the manner of service, shall
be proof of the service.
Prehearing Procedures
Sec. 60-30.5 Administrative complaint.
(a) Filing. The Solicitor of Labor, Associate Solicitor for Labor
Relations and Civil Rights Regional Solicitors and Regional Attorney
upon referral from OFCCP, are authorized to institute enforcement
proceedings by filing a complaint and serving the complaint upon the
contractor which shall be designated as the defendant. The Department
of Labor, OFCCP, shall be designated as the plaintiff.
(b) Contents. The complaint shall contain a concise jurisdictional
statement, and a clear and concise statement sufficient to put the
defendant on notice of the acts or practices it is alleged to have
committed in violation of the order, the regulations, or its
contractual obligations. The complaint shall also contain a prayer
regarding the relief being sought, a statement of whatever sanctions
the Government will seek to impose and the name and address of the
attorney who will represent the Government.
(c) Amendment. The complaint may be amended once as a matter of
course before an answer is filed, and the defendant may amend its
answer once as a matter of course not later than 10 days after the
filing of the original answer. Other amendments of the complaint or of
the answer to the complaint shall be made only by leave of the
Administrative Law Judge or by written consent of the adverse party;
and leave shall be freely given where justice so requires. An amended
complaint shall be answered within 14 days of its service, or within
the time for filing an answer to the original complaint, whichever
period is longer. An amended answer shall be responded to within 14
days of its service.
Sec. 60-30.6 Answer.
(a) Filing and service. Within 20 days after the service of the
complaint, the defendant shall file an answer with the Chief
Administrative Law Judge if the case has not been assigned to an
Administrative Law Judge. The answer shall be signed by the defendant
or its attorney, and served on the Government in accordance with Sec.
60-30.4(b).
(b) Contents; failure to file. The answer shall (1) contain a
statement of the facts which constitute the grounds of defense, and
shall specifically admit, explain, or deny, each of the allegations of
the complaint unless the defendant is without knowledge, in which case
the answer shall so state; or (2) state that the defendant admits all
the allegations of the complaint. The answer may contain a waiver of
hearing; and if not, a separate paragraph in the answer shall request a
hearing. The answer shall contain the name and address of the
defendant, or of the attorney representing the defendant. Failure to
file an answer or to plead specifically to any allegation of the
complaint shall constitute an admission of such allegation.
(c) Procedure, upon admission of facts. The admission, in the
answer or by failure to file an answer, of all the material allegations
of fact contained in the complaint shall constitute a waiver of
hearing. Upon such admission, the Administrative Law Judge, without
further hearing, may prepare his decision in which he shall adopt as
his proposed findings of fact the material facts alleged in the
complaint. The parties shall be given an opportunity to file exceptions
to his decision and to file briefs in support of the exceptions.
Sec. 60-30.7 Notice of prehearing conference.
The Administrative Law Judge shall respond to defendant's request
for a hearing within 15 days and shall serve a notice of prehearing
conference on the parties. The notice shall contain the time and place
of the conference.
Sec. 60-30.8 Motions; disposition of motions.
(a) Motions. Motions shall state the relief sought, the authority
relied upon and the facts alleged, and shall be filed with the
Administrative Law Judge. If made before or after the hearing itself,
the motions shall be in writing. If made at the hearing, motions may be
stated orally; but the Administrative Law Judge may require that they
be reduced to writing and filed and served on all parties in the same
manner as a formal motion. Unless otherwise ordered by the
Administrative Law Judge, written motions shall be accompanied by a
supporting memorandum. Within 10 days after a written motion is served,
or such other time period as may be fixed, any party may file a
response to a motion.
[[Page 28480]]
(b) Disposition of motions. The Administrative Law Judge may not
grant a written motion prior to expiration of the time for filing
responses thereto, except upon consent of the parties or following a
hearing, but may overrule or deny such motion without awaiting
response: Provided, That prehearing conferences, hearings, and
decisions need not be delayed pending disposition of motions.
Sec. 60-30.9 Interrogatories, and admissions as to facts and
documents.
(a) Interrogatories. Not later than 25 days prior to the date of
the hearing, except for good cause shown, or not later than 14 days
prior to such earlier date as the Administrative Law Judge may order,
any party may serve upon an opposing party written interrogatories.
Each interrogatory shall be answered separately and fully in writing
under oath, unless objected to. Answers are to be signed by the person
making them and objections by the attorney or by whoever is
representing the party. Answers and objections shall be filed and
served within 25 days of service of the interrogatory.
(b) Admissions. Not later than 14 days prior to the date of the
hearing, except for good cause shown, or not later than 14 days prior
to such earlier date as the Administrative Law Judge may order, any
party may serve upon an opposing party a written request for the
admission of the genuineness and authenticity of any relevant documents
described in and exhibited with the request, or for the admission of
the truth of any relevant matters of fact stated in the request. Each
of the matters as to which an admission is requested shall be deemed
admitted, unless within 25 days after service, the party to whom the
request is directed serves upon the requesting party a sworn statement
either (1) denying specifically the matter as to which an admission is
requested, or (2) setting forth in detail the reasons why he cannot
truthfully either admit or deny such matters.
(c) Objections or failures to respond. The party submitting the
interrogatory or request may move for an order with respect to any
objection or other failure to respond.
Sec. 60-30.10 Production of documents and things and entry upon land
for inspection and other purposes.
(a) After commencement of the action, any party may serve on any
other party a request to produce and/or permit the party, or someone
acting on his behalf, to inspect and copy any unprivileged documents,
phonorecords, and other compilations, including computer tapes and
printouts which contain or may lead to relevant information and which
are in the possession, custody, or control of the party upon whom the
request is served. If necessary, translation of data compilations shall
be done by the party furnishing the information.
(b) After commencement of the action, any party may serve on any
other party a request to permit entry upon designated property which
may be relevant to the issues in the proceeding and, which is in the
possession or control of the party upon whom the request is served for
the purpose of inspection, measuring, surveying or photographing,
testing, or sampling the property or any designated object or area.
(c) Each request shall set forth with reasonable particularity the
items to be inspected and shall specify a reasonable time and place for
making the inspection and performing the related acts.
(d) The party upon whom the request is served shall respond within
25 days after the service of the request. The response shall state,
with respect to each item, that inspection and related activities will
be permitted as requested, unless there are objections, in which case
the reasons for each objection shall be stated. The party submitting
the request may move for an order with respect to any objection or to
other failure to respond.
Sec. 60-30.11 Depositions upon oral examination.
(a) Depositions; notice of examination. After commencement of the
action, any party may take the testimony of any person, including a
party, having personal or expert knowledge of the matters in issue, by
deposition upon oral examination. A party desiring to take a deposition
shall give reasonable notice in writing to every other party to the
proceeding, and may use an administrative subpoena. The notice shall
state the time and place for taking the deposition and the name and
address of each person to be examined, if known, and, if the name is
not known, a general description sufficient to identify him or the
particular class or group to which he belongs. The notice shall also
set forth the categories of documents the witness is to bring with him
to the deposition, if any. A copy of the notice shall be furnished to
the person to be examined unless his name is unknown.
(b) Production of witnesses; obligation of parties; objections. It
shall be the obligation of each party to produce for examination any
person, along with such documents as may be requested, at the time and
place, and on the date, set forth in the notice, if that party has
control over such person. Each party shall be deemed to have control
over its officers, agents, employees, and members. Unless the parties
agree otherwise, depositions shall be held within the county in which
the witness resides or works. The party or prospective witness may file
with the Administrative Law Judge an objection within 5 days after
notice of production of such witness is served, stating with
particularity the reasons why the party cannot or ought not to produce
a requested witness. The party serving the notice may move for an order
with respect to such objection or failure to produce a witness. All
errors or irregularities in compliance with the provisions of this
section shall be deemed waived unless a motion to suppress the
deposition or some part thereof is made with reasonable promptness
after such defect is or, with due diligence, might have been
ascertained.
(c) Before whom taken; scope of examination; failure to answer.
Depositions may be taken before any officer authorized to administer
oaths by the laws of the United States or of the place where the
deposition is held. At the time and place specified in the notice, each
party shall be permitted to examine and cross-examine the witness under
oath upon any matter which is relevant to the subject matter of the
proceeding, or which is reasonably calculated to lead to the production
of relevant and otherwise admissible evidence. All objections to
questions, except as to the form thereof, and all objections to
evidence are reserved until the hearing. A refusal or failure on the
part of any person under the control of a party to answer a question
shall operate to create a presumption that the answer, if given, would
be unfavorable to the controlling party, unless the question is
subsequently ruled improper by the Administrative Law Judge or the
Administrative Law Judge rules that there was valid justification for
the witness' failure or refusal to answer the question: Provided, That
the examining party shall note on the record during the deposition the
question which the deponent has failed, or refused to answer, and state
his intention to invoke the presumption if no answer is forthcoming.
(d) Subscription; certification; filing. The testimony shall be
reduced to typewriting, either by the officer taking the deposition or
under his direction, and shall be submitted to the witness for
examination and signing. If the
[[Page 28481]]
deposition is not signed by the witness because he is ill, dead, cannot
be found, or refuses to sign it, such fact shall be noted in the
certificate of the officer and the deposition may then be used as fully
as though signed. The officer shall immediately deliver the original
copy of the transcript, together with his certificate, in person or by
mail to the Administrative Law Judge. Copies of the transcript and
certificate shall be furnished to all persons desiring them, upon
payment of reasonable charges, unless distribution is restricted by
order of the Administrative Law Judge for good cause shown.
(e) Rulings on admissibility; use of deposition. Subject to the
provisions of this section, objection may be made at the hearing to
receiving in evidence any deposition or part thereof for any reason
which would require the exclusion of the evidence if the witness were
then present and testifying. Any part or all of a deposition, so far as
admissible in the discretion of the Administrative Law Judge, may be
used against any party who was present or represented at the taking of
the deposition or who had reasonable notice, in accordance with the
following provisions:
(1) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a witness.
(2) The deposition of a party or of any one who at the time of
taking the deposition was an officer, director, or managing agent, or
was designated to testify on behalf of a public or private corporation,
partnership, association, or governmental agency which is a party may
be used by the adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be
used by any party for any purpose if the administrative law judge
finds: (i) That the witness is dead; or (ii) that the witness is unable
to attend or testify because of age, illness, infirmity, or
imprisonment; or (iii) that the party offering the deposition has been
unable to procure the attendance of the witness by subpoena; or (iv)
upon application and notice, that such exceptional circumstances exist
as to make it desirable to allow the deposition to be used.
(4) If only part of a deposition is introduced in evidence by a
party, any party may introduce any other parts by way of rebuttal and
otherwise.
(f) Stipulations. If the parties so stipulate in writing,
depositions may be taken before any person at any time or place, upon
any notice and in any manner, and when so taken may be used like other
depositions.
Sec. 60-30.12 Prehearing conferences.
(a) Upon his own motion or the motion of the parties, the
Administrative Law Judge may direct the parties or their counsel to
meet with him for a conference to consider:
(1) Simplification of the issues;
(2) Necessity or desirability of amendments to pleadings for
purposes of clarification, simplification, or limitation;
(3) Stipulations, admissions of fact and of contents and
authenticity of documents;
(4) Limitation of number of witnesses;
(5) Scheduling dates for the exchange of witness lists and of
proposed exhibits;
(6) Such other matters as may tend to expedite the disposition of
the proceedings.
(b) The record shall show the matters disposed of by order and by
agreement in such pretrial conferences. The subsequent course of the
proceeding shall be controlled by such action.
Sec. 60-30.13 Consent findings and order.
(a) General. At any time after the issuance of a complaint and
prior to or during the reception of evidence in any proceeding, the
parties may jointly move to defer the receipt of any evidence for a
reasonable time to permit negotiation of an agreement containing
consent findings and an order disposing of the whole or any part of the
proceeding. The allowance of such deferment and the duration thereof
shall be in the discretion of the Administrative Law Judge after
consideration of the nature of the proceeding, the requirements of the
public interest, the representations of the parties, and the
probability of an agreement being reached which will result in a just
disposition of the issues involved.
(b) Content. Any agreement containing consent findings and an order
disposing of a proceeding shall also provide:
(1) That the order shall have the same force and effect as an order
made after full hearing;
(2) That the entire record on which any order may be based shall
consist solely of the complaint and the agreement;
(3) That any further procedural steps are waived; and
(4) That any right to challenge or contest the validity of the
findings and order entered into in accordance with the agreement is
waived.
(c) Submission. On or before the expiration of the time granted for
negotiations, the parties or their counsel may:
(1) Submit the proposed agreement to the Administrative Law Judge
for his consideration;
(2) Inform the Administrative Law Judge that agreement cannot be
reached.
(d) Disposition. In the event an agreement containing consent
findings and an order is submitted within the time allowed, the
Administrative Law Judge, within 30 days, shall accept such agreement
by issuing his decision based upon the agreed findings, and his
decision shall constitute the final Administrative order.
Hearings and Related Matters
Sec. 60-30.14 Designation of Administrative Law Judges.
Hearings shall be held before an Administrative Law Judge of the
Department of Labor who shall be designated by the Chief Administrative
Law Judge of the Department of Labor. After commencement of the
proceeding but prior to the designation of an Administrative Law Judge,
pleadings and papers shall be filed with the Chief Administrative Law
Judge.
Sec. 60-30.15 Authority and responsibilities of Administrative Law
Judges.
The Administrative Law Judge shall propose findings and conclusions
to the Secretary on the basis of the record. In order to do so, he
shall have the duty to conduct a fair hearing, to take all necessary
action to avoid delay, and to maintain order. He shall have all powers
necessary to those ends, including, but not limited to, the power to:
(a) Hold conferences to settle, simplify, or fix the issues in a
proceeding, or to consider other matters that may aid in the
expeditious disposition of the proceeding by consent of the parties or
upon his own motion;
(b) Require parties to state their position with respect to the
various issues in the proceeding;
(c) Require parties to produce for examination those relevant
witnesses and documents under their control; and require parties to
answer interrogatories and requests for admissions in full;
(d) Administer oaths;
(e) Rule on motions, and other procedural items or matters pending
before him;
(f) Regulate the course of the hearing and conduct of participants
therein;
(g) Examine and cross-examine witnesses, and introduce into the
record documentary or other evidence;
(h) Receive, rule on, exclude, or limit evidence and limit lines of
questioning or testimony which are irrelevant, immaterial, or unduly
repetitious;
(i) Fix time limits for submission of written documents in matters
before
[[Page 28482]]
him and extend any time limits established by this part upon a
determination that no party will be prejudiced and that the ends of
justice will be served thereby;
(j) Impose appropriate sanctions against any party or person
failing to obey an order under these rules which may include:
(1) Refusing to allow the disobedient party to support or oppose
designated claims or defenses, or prohibiting it from introducing
designated matters in evidence;
(2) Excluding all testimony of an unresponsive or evasive witness,
or determining that the answer of such witness, if given, would be
unfavorable to the party having control over him; and
(3) Expelling any party or person from further participation in the
hearing;
(k) Take official notice of any material fact not appearing in
evidence in the record, which is among the traditional matters of
judicial notice;
(l) Recommend whether the respondent is in current violation of the
order, regulations, or its contractual obligations, as well as the
nature of the relief necessary to insure the full enjoyment of the
rights secured by the order;
(m) Issue subpoenas; and
(n) Take any action authorized by these rules.
Sec. 60-30.16 Appearances.
(a) Representation. The parties or other persons or organizations
participating pursuant to this part 60-30 have the right to be
represented by counsel.
(b) Failure to appear. In the event that a party appears at the
hearing and no party appears for the opposing side, the party who is
present shall have an election to present his evidence in whole or such
portion thereof sufficient to make a prima facie case before the
Administrative Law Judge. Failure to appear at the hearing shall not be
deemed to be a waiver of the right to be served with a copy of the
Administrative Law Judge's recommended decision and to file exceptions
to it.
Sec. 60-30.17 Appearance of witnesses.
(a) A party wishing to procure the appearance at the hearing of any
person having personal or expert knowledge of the matters in issue
shall serve on the prospective witness a notice, which may be
accomplished by an administrative subpoena, setting forth the time,
date, and place at which he is to appear for the purpose of giving
testimony. The notice shall also set forth the categories of documents
the witness is to bring with him to the hearing, if any. A copy of the
notice shall be filed with the Administrative Law Judge and additional
copies shall be served upon the opposing parties.
(b) It shall be the obligation of each party to produce for
examination any person, along with such documents as may be requested,
at the time and place, and on the date, set forth in the notice, if
that party has control over such person. Each party shall be deemed to
have control over its officers, agents, employees, and members. Due
regard shall be given to the convenience of witnesses in scheduling
their testimony so that they will be detained no longer than reasonably
necessary.
(c) The party or prospective witness may file an objection within 5
days after notice of production of such witness is served stating with
particularity the reasons why the party cannot produce a requested
witness. The party serving the notice may move for an order with
respect to such objection or failure to produce a witness.
Sec. 60-30.18 Rules of evidence.
In any hearing, decision, or administrative review conducted
pursuant to this part, all evidentiary matters shall be governed by
Office of Administrative Law Judges' Rules of evidence at 29 CFR part
18, subpart B.
Sec. 60-30.19 Objections; exceptions; offer of proof.
(a) Objections. If a party objects to the admission or rejection of
any evidence or to the limitation of the scope of any examination or
cross-examination or the failure to limit such scope, he shall state
briefly the grounds for such objection. Rulings on all objections shall
appear in the record. Only objections made on the record may be relied
upon subsequently in the proceedings.
(b) Exceptions. Formal exception to an adverse ruling is not
required. Rulings by the Administrative Law Judge shall not be appealed
prior to the transfer of the case to the Secretary, but shall be
considered by the Secretary upon filing exceptions to the
Administrative Law Judge's recommendations and conclusions.
(c) Offer of proof. An offer of proof made in connection with an
objection taken to any ruling excluding proffered oral testimony shall
consist of a statement of the substance of the evidence which counsel
contends would be adduced by such testimony; and, if the excluded
evidence consists of evidence in written form or consists of reference
to documents, a copy of such evidence shall be marked for
identification and shall accompany the record as the offer of proof.
Sec. 60-30.20 Ex parte communications.
The Administrative Law Judge shall not consult any person, or
party, on any fact in issue unless upon notice and opportunity for all
parties to participate. No employee or agent of the Federal Government
engaged in the investigation and prosecution of this case shall
participate or advise in the rendering of the recommended or final
decision in the case, except as witness or counsel in the proceeding.
Sec. 60-30.21 Oral argument.
Any party shall be entitled upon request to a reasonable period
between the close of evidence and termination of the hearing for oral
argument. Oral arguments shall be included in the official transcript
of the hearing.
Sec. 60-30.22 Official transcript.
The official transcripts of testimony taken, together with any
exhibits, briefs, or memorandums of law, shall be filed with the
Administrative Law Judge. Transcripts of testimony may be obtained from
the official reporter by the parties and the public as provided in
section 11(a) of the Federal Advisory Committee Act (86 Stat. 770).
Upon notice to all parties, the Administrative Law Judge may authorize
such corrections to the transcript as are necessary to reflect
accurately the testimony.
Sec. 60-30.23 Summary judgment.
(a) For the Government. At any time after the expiration of 20 days
from the commencement of the action, or after service of a motion for
summary judgment by the respondent, the Government may move with or
without supporting affidavits for a summary judgment upon all claims or
any part.
(b) For defendant. The defendant may, at any time after
commencement of the action, move with or without supporting affidavits
for summary judgment in its favor as to all claims or any part.
(c) Other parties. Any other party to a formal proceeding under
this part may support or oppose motions for summary judgment made by
the Government or respondent, in accordance with this section, but may
not move for a summary judgment in his own behalf.
(d) Statement of uncontested facts. All motions for summary
judgment shall be accompanied by a ``Statement of Uncontested Facts''
in which the moving party sets forth all alleged uncontested material
facts which shall provide the basis for its motion. At least 5 days
prior to the time fixed for hearing
[[Page 28483]]
on the motion, any party contending that any material fact regarding
the matter covered by the motion is in dispute, shall file a
``Statement of Disputed Facts.'' Failure to file a ``Statement of
Disputed Facts'' shall be deemed as an admission to the ``Statement of
Uncontested Facts.''
(e) Motion and proceedings. The motion shall be served upon all
parties at least 15 days before the time fixed for the hearing on the
motion. The adverse party or parties may serve opposing affidavits
prior to the day of hearing. The judgment sought shall be rendered
forthwith if the complaint and answer, depositions, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. Summary judgment rendered
for or against the Government or the respondent shall constitute the
findings and recommendations on the issues involved. Hearings on
motions made under this section shall be scheduled by the
Administrative Law Judge.
(f) Case not fully adjudicated on motion. If on motion under this
section judgment is not rendered upon the whole case or for all the
relief asked and a final hearing is necessary, the Administrative Law
Judge at the hearing of the motion, by examining the notice and answer
and the evidence before him and by interrogating counsel, shall, if
practicable, ascertain what material facts exist without substantial
controversy and what material facts are actually and in good faith
controverted. He shall thereupon make an order specifying the facts
that appear without substantial controversy, including the extent to
which relief is not in controversy, and directing such further
proceedings as are just. At the hearing on the merits, the facts so
specified shall be deemed established, and the final hearing shall be
conducted accordingly.
Sec. 60-30.24 Participation by interested persons.
(a) (1) To the extent that proceedings hereunder involve employment
of persons covered by a collective bargaining agreement, and compliance
may necessitate a revision of such agreement, any labor organization
which is a signatory to the agreement shall have the right to
participate as a party.
(2) Other persons or organizations shall have the right to
participate as parties if the final Administrative order could
adversely affect them or the class they represent, and such
participation may contribute materially to the proper disposition of
the proceedings.
(3) Any person or organization wishing to participate as a party
under this section shall file with the Administrative Law Judge and
serve on all parties a petition within 25 days after the commencement
of the action or at such other time as ordered by the Administrative
Law Judge, so long as it does not disrupt the proceeding. Such petition
shall concisely state: (i) Petitioner's interest in the proceedings;
(ii) who will appear for petitioner; (iii) the issues on which
petitioner wishes to participate; and (iv) whether petitioner intends
to present witnesses.
(4) The Administrative Law Judge shall determine whether each
petitioner has the requisite interest in the proceedings and shall
permit or deny participation accordingly. Where petitions to
participate as parties are made by individuals or groups with common
interest, the Administrative Law Judge may request all such petitioners
to designate a single representative to represent all such petitioners:
Provided, That the representative of a labor organization qualifying to
participate under paragraph (a)(1) of the section must be permitted to
participate in the proceedings. The Administrative Law Judge shall give
each petitioner written notice of the decision on his petition; and if
the petition is denied, he shall briefly state the grounds for denial
and shall then treat the petition as a request for participation as
amicus curiae. The Administrative Law Judge shall give written notice
to each party of each petition granted.
(b) (1) Any other interested person or organization wishing to
participate as amicus curiae shall file a petition before the
commencement of the final hearing with the Administrative Law Judge.
Such petition shall concisely state: (i) The petitioner's interest in
the hearing; (ii) who will represent the petitioner; and (iii) the
issues on which petitioner intends to present argument. The
Administrative Law Judge may grant the petition if he finds that the
petitioner has a legitimate interest in the proceedings, and that such
participation may contribute materially to the proper disposition of
the issues. An amicus curiae is not a party but may participate as
provided in this section.
(2) An amicus curiae may present a brief oral statement at the
hearing at the point in the proceeding specified by the Administrative
Law Judge. He may submit a written statement of position to the
Administrative Law Judge prior to the beginning of a hearing and shall
serve a copy on each party. He may also submit a brief or written
statement at such time as the parties submit briefs and exceptions, and
he shall serve a copy on each party.
Post-Hearing Procedures
Sec. 60-30.25 Proposed findings of fact and conclusions of law.
Within 20 days after receipt of the transcript of the testimony,
each party and amicus may file a brief. Such briefs shall be served
simultaneously on all parties and amici, and a certificate of service
shall be furnished to the Administrative Law Judge. Requests for
additional time in which to file a brief shall be made in writing, and
copies shall be served simultaneously on the other parties. Requests
for extensions shall be received not later than 3 days before the date
such briefs are due. No reply brief may be filed except by special
permission of the Administrative Law Judge.
Sec. 60-30.26 Record for recommended decision.
The transcript of testimony, exhibits, and all papers, documents,
and requests filed in the proceedings, including briefs, but excepting
the correspondence section of the docket, shall constitute the record
for decision.
Sec. 60-30.27 Recommended decision.
Within a reasonable time after the filing of briefs, the
Administrative Law Judge shall recommend findings, conclusions, and a
decision. These recommendations shall be certified, together with the
record for recommended decision, to the Administrative Review Board,
United States Department of Labor, for a final Administrative order.
The recommended findings, conclusions, and decision shall be served on
all parties and amici to the proceeding.
Sec. 60-30.28 Exceptions to recommended decisions.
Within 14 days after receipt of the recommended findings,
conclusions, and decision, any party may submit exceptions to said
recommendation. These exceptions may be responded to by other parties
within 14 days of their receipt by said parties. All exceptions and
responses shall be filed with the Administrative Review Board, United
States Department of Labor. Service of such briefs or exceptions and
responses shall be made simultaneously on all parties to the
proceeding. Requests to the Administrative Review Board, United States
Department of Labor, for additional time in which to file exceptions
and responses shall be in writing and copies shall be served
simultaneously on other parties. Requests for extensions must be
[[Page 28484]]
received no later than 3 days before the exceptions are due.
Sec. 60-30.29 Record.
After expiration of the time for filing briefs and exceptions, the
Administrative Review Board, United States Department of Labor, shall
make a decision, which shall be the Administrative order, on the basis
of the record. The record shall consist of the record for recommended
decision, the rulings and recommended decision of the Administrative
Law Judge and the exceptions and briefs filed subsequent to the
Administrative Law Judge's decision.
Sec. 60-30.30 Administrative Order.
After expiration of the time for filing, the Administrative Review
Board, United States Department of Labor, shall make a decision which
shall be served on all parties. If the Administrative Review Board,
United States Department of Labor, concludes that the defendant has
violated VEVRAA, Section 503, the equal opportunity clauses at 41 CFR
60-300.5 or 41 CFR 60-741.5, or the VEVRAA or Section 503 regulations,
an Administrative Order shall be issued enjoining the violations, and
requiring the contractor to provide whatever remedies are appropriate,
and imposing whatever sanctions are appropriate, or any of the above.
In any event, failure to comply with the Administrative Order shall
result in the immediate cancellation, termination, and suspension of
the respondent's contracts and/or debarment of the respondent from
further contracts.
Expedited Hearing Procedures
Sec. 60-30.31 Expedited hearings--when appropriate.
Expedited Hearings may be used, inter alia, when a contractor or
subcontractor has violated a conciliation agreement; has not adopted
and implemented an acceptable affirmative action program; has refused
to give access to or to supply records or other information as required
by the equal opportunity clause; or has refused to allow an on-site
compliance review to be conducted.
Sec. 60-30.32 Administrative complaint and answer.
(a) Expedited hearings shall be commenced by filing an
administrative complaint in accordance with 41 CFR 60-30.5. The
complaint shall state that the hearing is subject to these expedited
hearing procedures.
(b) The answer shall be filed in accordance with 41 CFR 60-30.6(a)
and (b).
(c) Failure to request a hearing within the 20 days provided by 41
CFR 60-30.6(a) shall constitute a waiver of hearing, and all the
material allegations of fact contained in the complaint shall be deemed
to be admitted. If a hearing is not requested or is waived, within 25
days of the complaint's filing, the Administrative Law Judge shall
adopt as findings of fact the material facts alleged in the complaint,
and shall order the appropriate sanctions and/or penalties sought in
the complaint. The Administrative Law Judge's findings and order shall
constitute a final Administrative order, unless the Office of the
Solicitor, U.S. Department of Labor, files exceptions to the findings
and order within 10 days of receipt thereof. If the Office of the
Solicitor, U.S. Department of Labor, files exceptions, the matter shall
proceed in accordance with Sec. 60-30.36 of this part.
(d) If a request for a hearing is received within 20 days as
provided by 41 CFR 60-30.6(a), the hearing shall be convened within 45
days of receipt of the request and shall be completed within 15 days
thereafter, unless more hearing time is required.
Sec. 60-30.33 Discovery.
(a) Any party may serve requests for admissions in accordance with
Sec. 60-30.9(b) and (c).
(b) Witness lists and hearing exhibits will be exchanged at least
10 days in advance of the hearing.
(c) For good cause shown, and upon motion made in accordance with
Sec. 60-30.8, the Administrative Law Judge may allow the taking of
depositions. Other discovery will not be permitted.
Sec. 60-30.34 Conduct of hearing.
(a) At the hearing, the Government shall be given an opportunity to
demonstrate the basis for the request for sanctions and/or remedies,
and the contractor shall be given an opportunity to show that the
violation complained of did not occur and/or that good cause or good
faith efforts excuse the alleged violations. Both parties shall be
allowed to present evidence and argument and to cross-examine
witnesses.
(b) The hearing shall be informal in nature, and the Administrative
Law Judge shall not be bound by formal rules of evidence.
Sec. 60-30.35 Recommended decision after hearing.
Within 15 days after the hearing is concluded, the Administrative
Law Judge shall recommend findings, conclusions, and a decision. The
Administrative Law Judge may permit the parties to file written post-
hearing briefs within this time period, but the Administrative Law
Judge's recommendations shall not be delayed pending receipt of such
briefs. These recommendations shall be certified, together with the
record, to the Administrative Review Board, United States Department of
Labor, for a final Administrative order. The recommended decision shall
be served on all parties and amici to the proceeding.
Sec. 60-30.36 Exceptions to recommendations.
Within 10 days after receipt of the recommended findings,
conclusions and decision, any party may submit exceptions to said
recommendations. Exceptions may be responded to by other parties within
7 days after receipt by said parties of the exceptions. All exceptions
and responses shall be filed with the Administrative Review Board,
United States Department of Labor. Briefs or exceptions and responses
shall be served simultaneously on all parties to the proceeding.
Sec. 60-30.37 Final Administrative Order.
After expiration of the time for filing exceptions, the
Administrative Review Board, United States Department of Labor, shall
issue an Administrative Order which shall be served on all parties.
Unless the Administrative Review Board, United States Department of
Labor, issues an Administrative Order within 30 days after the
expiration of the time for filing exceptions, the Administrative Law
Judge's recommended decision shall become a final Administrative Order
which shall become effective on the 31st day after expiration of the
time for filing exceptions. Except as to specific time periods required
in this subsection, 41 CFR 60-30.30 shall be applicable to this
section.
Sec. 60-30.38 Severability.
Should a court of competent jurisdiction hold any provision(s) of
this part to be invalid, such action will not affect any other
provision of this part.
PART 60-40 [REMOVED AND RESERVED]
0
1. Remove and reserve 41 CFR part 60-40.
PART 60-50 [REMOVED AND RESERVED]
0
2. Remove and reserve 41 CFR part 60-50.
[[Page 28485]]
PART 60-999 [REMOVED AND RESERVED]
0
3. Remove and reserve 41 CFR part 60-999.
Dated: June 27, 2025.
Catherine Eschbach,
Director, Office of Federal Contract Compliance Programs.
[FR Doc. 2025-12276 Filed 6-30-25; 8:45 am]
BILLING CODE 4510-CM-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.