By Evan Szarenski
On Tuesday, June 21, the Biden Administration published its semi-annual regulatory agenda. The regulatory agenda reports on regulatory actions that executive agencies plan to take in both the near and long term.
The full spring 2022 regulatory agenda for all executive agencies can be found at https://www.reginfo.gov/public/do/eAgendaMain. The Office of Federal Contract Compliance Programs (OFCCP) provided updates on its previously announced regulatory priorities (covered in a separate blog post from DCI) but did not announce any new items. The OFCCP items in the regulatory agenda are as follows:
- Proposal to Rescind Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption: OFCCP expects to issue a final rule rescinding its religious exemption rule in November 2022. OFCCP previously published a Notice of Proposed Rulemaking (NPRM) regarding the rescission on November 9, 2021. The proposal received over 5,000 comments.
- Technical Amendments to OFCCP Regulations: OFCCP plans to update its regulations to do the following: reflect current jurisdictional thresholds for individuals with disabilities and protected veterans; correct OMB control numbers; and remove gender-assumptive pronouns. While OFCCP previously suggested it would complete these actions by February 2022, the agency has changed the completion date to November 2022.
- Notification of Supply and Service Contract Awards: This proposal would require prime federal contractors to notify OFCCP when awarding supply and service subcontracts. The NPRM is now expected in January 2023. OFCCP previously planned on issuing a rule in this regard in April 2022.
- Modernizing Affirmative Action Programs, Recordkeeping, and Other Components of Executive Order 11246 Supply and Service Obligations for Federal Contractors and Subcontractors: OFCCP is projecting to issue an NPRM including modifications to recordkeeping and AAP obligations in March 2023. This proposal was previously projected to be published in September of 2022. The agency continues to expect to incorporate items regarding gender identity and sexual orientation in this NPRM.
- Pre-enforcement Notice and Conciliation Procedures: This final rule would modify OFCCP’s November 2020 final rule on resolving findings of employment discrimination. OFCCP is suggesting it will publish the final rule in May 2023. OFCCP published an NPRM regarding changes to its November 2020 rule on March 21, 2022. The NPRM received twelve comments.
- Access to Records Regulatory Updates: OFCCP plans to issue an NPRM in October of 2023 to update its Freedom of Information Act (FOIA) regulations.
Additionally, the U.S. Department of Agriculture (USDA) provided an update on a proposed rule that is of interest to the federal contracting community. In February 2022, USDA issued an NPRM proposing to require contractors to certify that they and their subcontractors are in compliance with certain federal labor and employment laws and their state law equivalents. The USDA is now planning to issue a revised NPRM in December 2022.
The semi-annual regulatory agenda provides insight into OFCCP’s thinking about priorities for the coming months. However, items that appear in a regulatory agenda do not necessarily move forward on the schedule proposed by the agency. There are also times when items appearing in regulatory agendas do not become formal proposals. The fact that OFCCP has the same issues in the spring regulatory agency that appeared in the fall 2021 regulatory agenda shows that initiatives often do not move forward at the pace an agency expects.
DCI will continue to track the status of these proposals and provide updates.