90 FR 124 pgs. 28472-28485 - Rescission of Executive Order 11246 Implementing Regulations
Type: PRORULEVolume: 90Number: 124Pages: 28472 - 28485
Pages: 28472, 28473, 28474, 28475, 28476, 28477, 28478, 28479, 28480, 28481, 28482, 28483, 28484, 28485Docket number: [Docket No. OFCCP-2025-0001]
FR document: [FR Doc. 2025-12276 Filed 6-30-25; 8:45 am]
Agency: Labor Department
Official PDF Version: PDF Version
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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.
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 E.O. 11246 was revoked by E.O. 14173 on January 21, 2025.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):
• Electronically at https://www.regulations.gov. Follow the "Submit a comment" instructions. If you are reading this document on federalregister.gov , you may use the green "SUBMIT A PUBLIC COMMENT" button beneath this rulemaking's title to submit a comment to the regulations.gov docket.
• 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.
[top] Do not include any personally identifiable information (such as name, address, or other contact information) or
Follow the search instructions on https://www.regulations.gov to view public comments. A brief summary of this document will be available on https://www.regulations.gov.
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: ofccp_guidance@dol.gov.
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
[top] 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.
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).
[top] 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,
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.
[top] 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
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
[top] 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.
(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 https://www.eeoc.gov/data/eeo-1-employer-information-report-statistics and USA Spending Database at https://www.usaspending.gov/ (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
[top] 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
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]
1. Remove and reserve 41 CFR part 60-1.
PART 60-2 [REMOVED AND RESERVED]
2. Remove and reserve 41 CFR part 60-2.
PART 60-3 [REMOVED AND RESERVED]
3. Remove and reserve 41 CFR part 60-3.
PART 60-4 [REMOVED AND RESERVED]
4. Remove and reserve 41 CFR part 60-4.
PART 60-20 [REMOVED AND RESERVED]
[top] 5. Remove and reserve 41 CFR part 60-20.
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
§?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.
§?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.
§?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.
§?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
§?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.
§?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 §?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.
§?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.
§?60-30.8 Motions; disposition of motions.
[top] (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.
(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.
§?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.
§?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.
§?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.
[top] (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
(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.
§?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.
§?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
§?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.
§?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;
[top] (i) Fix time limits for submission of written documents in matters before
(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.
§?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.
§?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.
§?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.
§?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.
§?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.
§?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.
§?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.
§?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.
[top] (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
(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.
§?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
§?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.
§?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.
§?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.
§?60-30.28 Exceptions to recommended decisions.
[top] 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
§?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.
§?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
§?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.
§?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 §?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.
§?60-30.33 Discovery.
(a) Any party may serve requests for admissions in accordance with §?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 §?60-30.8, the Administrative Law Judge may allow the taking of depositions. Other discovery will not be permitted.
§?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.
§?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.
§?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.
§?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.
§?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]
1. Remove and reserve 41 CFR part 60-40.
PART 60-50 [REMOVED AND RESERVED]
2. Remove and reserve 41 CFR part 60-50.
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PART 60-999 [REMOVED AND RESERVED]
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