[co-author: Caroline Moughan]

On Wednesday, December 6, the Biden Administration published its semi-annual regulatory agenda. The regulatory agenda reports on regulatory actions that executive agencies intend to undertake in both the near and long term. This agenda includes planned Office of Federal Contract Compliance Programs (OFCCP) regulatory actions, along with other regulatory actions relevant to federal contractors and subcontractors.

The full Fall 2023 regulatory agenda for all executive agencies can be found at https://www.reginfo.gov/public/do/eAgendaMain. OFCCP did not announce any new items in this agenda but did provide updates on its previously announced Spring 2023 regulatory agenda (covered in a separate blog post from DCI). All of OFCCP’s proposed actions have been pushed back or removed from the Unified Agenda. The two OFCCP regulatory actions remaining are:

1. Modernizing Affirmative Action Programs and Nondiscrimination Obligations for Federal Contractors and Subcontractors: OFCCP is proposing changes to the regulations for federal supply and service contractors and subcontractors under Executive Order 11246, VEVRAA, and Section 503. These changes would involve recordkeeping and affirmative action obligations, along with other unspecified changes. Additionally, OFCCP is proposing to consider modifications in light of Executive Order 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 in September 2024 (pushed back from December 2023 in the Spring 2023 regulatory agenda).
2. Technical Amendments to OFCCP Regulations: OFCCP plans to update the Section 503 and VEVRAA regulations to reflect inflation adjustments to jurisdiction thresholds that went into place in 2017. Additionally, OFCCP plans to correct Office of Management and Budget (OMB) control numbers for OFCCP information collection requirements and remove gender assumptive pronouns. The OFCCP final action is planned for September 2024 (pushed back from December 2023 in the Spring regulatory agenda).

OFCCP also dropped two items from the Spring 2023 regulatory agenda. The proposal to require prime federal contractors to notify OFCCP when awarding supply and service subcontracts and the plan to update Freedom of Information Act (FOIA) regulations are no longer on the agenda. OFCCP announced it is withdrawing these proposals “due to other regulatory priorities.”

Another regulatory development of interest to federal contractors is the Revised US Department of Agriculture (USDA) Acquisition Regulations, which are now listed as “Next Action Undetermined.” In 2022, the USDA issued an NPRM that would bring back the “blacklisting” requirements proposed by an Obama-era Executive Order for USDA contracts. (The Executive Order has since been rescinded.) After the close of the initial comment period, USDA initially planned on reissuing the NPRM with changes based on the comments received. The status of the regulations and the blacklisting requirements are now unclear.

This regulatory agenda provides insight into the administration’s priorities for the coming months. Items appearing on this agenda may not become formal proposals or move forward on the proposed schedule, as evidenced by the dropped items and extended timelines for items appearing in the Spring 2023 regulatory agenda.

DCI will continue to track the status of these proposals and provide updates.