By: Haley Fisk and Evan Szarenski
The Biden administration’s Office of Information and Regulatory Affairs (OIRA) has released the Spring 2023 regulatory agenda. The agenda lists regulatory actions that the administration intends to undertake in the near and long term. This includes upcoming OFCCP regulatory actions relevant to federal contractors and subcontractors. While there have been no additional regulatory actions announced, the time frames for the expected actions have been updated from the Fall 2022 regulatory agenda. The relevant updates include the following:
- Pre-Enforcement Notice and Conciliation Procedures.
Also known as the “Predetermination Notice Rule,” the Final Rule was set for publication in June 2023, which has already passed. As covered in a prior blog post, this rule will modify the pre-enforcement procedures set forth in December 2020.
- Modernizing Affirmative Action and Nondiscrimination Obligations for Federal Contractors and Subcontractors.
OFCCP is planning to propose changes to the regulations for federal supply and service contractors and subcontractors under Executive Order (EO) 11246, VEVRAA, and Section 503. Specifically, this consists of recordkeeping and affirmative action program obligations, among unspecified others. Additional considerations are to include modifications pursuant to EO 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. The Notice of Proposed Rulemaking (NPRM), which solicits public comment, is expected December 2023 (pushed back from April 2023 in the Fall 2022 regulatory agenda).
- Technical Amendments to OFCCP Regulations.
OFCCP is set to make technical corrections to Section 503 and VEVRAA regulations, to reflect the change in the jurisdiction thresholds implemented in 2017. The technical correction is to update the regulations to reflect the threshold inflation adjustment pursuant to 41 U.S.C 1908. An additional technical correction is to correct OMB control numbers for OFCCP information collection requirements and remove gender assumptive pronouns. The OFCCP final action for this issue is set for December 2023 (pushed back from March 2023).
- Notification of Supply and Service Subcontract Awards.
The OFCCP has revised the publication date for the NPRM, titled “Notification of Supply and Service Subcontract Awards” from March 2023 to June 2024. This proposal introduces new obligations for federal contractors regarding its announcement of supply and service subcontract awards. This notification would enable the OFCCP to have surveillance of the subcontractors and schedule compliance evaluations. This potential burden imposed on contractors and the OFCCP itself has raised concerns, possibly contributing to the delay in the publication date of the NPRM.
The Spring 2023 Regulatory Agenda did not include the EEOC's NPRM implementing regulations under the Pregnant Workers Fairness Act (PWFA), which came into effect on June 27, 2023. Despite not being included, the EEOC submitted the NPRM for OIRA approval on June 28, 2023. OIRA has 90 days to approve the NPRM before the EEOC can publish it, but the review period can be extended.
DCI will continue to monitor updates as they occur.