[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)]
[Rules and Regulations]
[Pages 92026-92119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29910]



[[Page 92025]]

Vol. 81

Monday,

No. 243

December 19, 2016

Part II





Department of Labor





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Employment and Training Administration





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29 CFR Parts 29 and 30





Apprenticeship Programs; Equal Employment Opportunity; Final Rule

  Federal Register / Vol. 81 , No. 243 / Monday, December 19, 2016 / 
Rules and Regulations  

[[Page 92026]]


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DEPARTMENT OF LABOR

Employment and Training Administration

29 CFR Parts 29 and 30

RIN 1205-AB59


Apprenticeship Programs; Equal Employment Opportunity

AGENCY: Employment and Training Administration, Labor.

ACTION: Final rule.

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SUMMARY: The U.S. Department of Labor (DOL or Department) is issuing 
this rule to modernize the equal employment opportunity regulations 
that implement the National Apprenticeship Act of 1937. The existing 
regulations prohibit discrimination in registered apprenticeship on the 
basis of race, color, religion, national origin, and sex, and require 
that sponsors of registered apprenticeship programs take affirmative 
action to provide equal opportunity in such programs. This rule updates 
equal opportunity standards in part 30 to include age (40 or older), 
genetic information, sexual orientation, and disability among the list 
of protected bases upon which a sponsor must not discriminate; improves 
and clarifies the affirmative action provisions for sponsors by 
detailing with specificity the actions a sponsor must take to satisfy 
its affirmative action obligations, including affirmative action for 
individuals with disabilities; revises regulations to reflect changes 
made in October 2008 to Labor Standards for Registration of 
Apprenticeship Programs, the companion regulations governing the 
conduct of registered apprenticeship programs; and improves the overall 
readability of part 30 through restructuring and clarification of the 
text. Wherever possible, this final rule has attempted to streamline 
and simplify sponsors' obligations, while maintaining broad and 
effective equal employment opportunity protections for apprentices and 
those seeking entry into apprenticeship programs. The policies and 
procedures of this rule promote equality of opportunity in 
apprenticeship programs registered with the Department and in 
apprenticeship programs registered with federally recognized state 
apprenticeship agencies.

DATES: Effective date: These regulations are effective January 18, 
2017.
    Compliance date: Several sections in the final regulation 
pertaining to equal employment and affirmative action violations 
specify extended periods beyond the effective date for sponsors to come 
into compliance with the rule. They are listed below, and described in 
more detail in the Section-by-Section Analysis and regulatory text. 
Unless otherwise indicated, sponsors must comply with the provisions of 
this regulation on the effective date:

 180 days after effective date: Obligations under Sec.  30.3
 2 years after effective date (or 2 years after registration, 
for sponsors registered after the effective date): Obligations under 
Sec. Sec.  30.4(e), 30.5(b), 30.7(d)(2), 30.9, and 30.11
 At first compliance review after effective date: Sec. Sec.  
30.5(c), 30.6

FOR FURTHER INFORMATION CONTACT: John Ladd, Administrator, Office of 
Apprenticeship, Employment and Training Administration, U.S. Department 
of Labor, 200 Constitution Avenue NW., Room N-5641, Washington, DC 
20210, [email protected], (202) 693-2796 (this is not a toll-
free number). Individuals with hearing or speech impairments may access 
this telephone number via TTY by calling the toll-free Federal 
Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 

Statement of Legal Authority and Background Information

    The National Apprenticeship Act of 1937 authorizes the Department 
to formulate and promote the furtherance of labor standards necessary 
to safeguard the welfare of apprentices.\1\ The responsibility for 
formulating and promoting these labor standards within the Department 
lies with the Employment and Training Administration's (ETA) Office of 
Apprenticeship (OA). As part of its duties, OA registers apprenticeship 
programs that meet certain minimum labor standards. These standards, 
set forth at 29 CFR parts 29 and 30, are intended to provide for more 
uniform training of apprentices and to promote equal opportunity in 
apprenticeship.
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    \1\ 29 U.S.C. 50.
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    The regulations at 29 CFR part 29 implement the National 
Apprenticeship Act by setting forth labor standards that safeguard the 
welfare of apprentices, including: Prescribing policies and procedures 
concerning the registration, cancellation, and deregistration of 
apprenticeship programs; the recognition of State Apprenticeship 
Agencies (SAA) as Registration Agencies; and matters relating thereto. 
On October 29, 2008, the Department published an amended part 29 to 
provide a framework that supports an enhanced, modernized 
apprenticeship system.\2\
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    \2\ 73 FR 64402. These regulations can be accessed on OA's Web 
site at: http://www.doleta.gov/oa/pdf/FinalRule29CFRPart29.pdf.
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    Part 30 implements the National Apprenticeship Act by requiring 
registered apprenticeship program sponsors to provide equal opportunity 
for participation in their registered apprenticeship programs, and by 
protecting apprentices and applicants for apprenticeship from 
discrimination on certain protected bases. In addition, part 30 also 
requires that sponsors of registered apprenticeship programs take 
affirmative action to provide equal employment opportunity in such 
programs.
    The Department first published part 30 on December 18, 1963, by 
order of the President that the Secretary of Labor, in implementing the 
National Apprenticeship Act and Executive Order 10925, require that the 
admission of young workers to apprenticeship programs be on a 
completely nondiscriminatory basis.\3\ At that time, the regulations 
prohibited discrimination based on race, color, religion, and national 
origin. Nondiscrimination on the basis of sex was added in 1971, as was 
the requirement for sponsors with five or more apprentices to develop 
and implement a written affirmative action plan (written AAP) for 
minorities.\4\ In 1978, the Department amended these regulations to 
require inclusion of female apprentices in written AAPs.\5\ This rule 
represents the first changes to these regulations since 1978.
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    \3\ 28 FR 13775.
    \4\ 36 FR 6810, Apr. 8, 1971.
    \5\ 43 FR 20760, May 12, 1978.
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    Apprenticeship is an earn-and-learn strategy combining on-the-job 
training with related technical (classroom) instruction, blending the 
practical and theoretical aspects of training for highly-skilled 
occupations. Apprenticeship programs are sponsored voluntarily by a 
wide range of organizations, including individual employers, employer 
associations, joint labor-management organizations, and other workforce 
intermediaries. As of the close of Fiscal Year 2015, there were about 
21,000 program sponsors representing about 200,000 employers that offer 
registered apprenticeship training to more than 455,000 apprentices.\6\
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    \6\ Fiscal Year (FY) 2015 national results available at http://doleta.gov/oa/data_statistics.cfm
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    Registered apprenticeship is a voluntary national system under 
which the vast majority of program sponsors enter into agreements with 
their

[[Page 92027]]

Registration Agencies without direct funding. Potential apprenticeship 
sponsors deciding whether or not to register their programs weigh the 
net benefits derived for meeting state and national standards for 
registration.
    There are numerous benefits to registering an apprenticeship 
program with the Department or an SAA. For the business sponsor, 
registration provides a structure and framework for developing skilled 
workers critical to a company's success, and connection to industry, 
education, and government resources for on-going management of the 
program and adaptation of new technologies and practices. For example, 
registered apprenticeships are automatically eligible to be listed as 
Eligible Training Providers within the workforce development system, 
the only such training model to have such treatment. Also, Federal 
government grants for apprenticeships are available to registered 
programs only. There are also economic incentives for apprenticeship 
employers in terms of the wage rates that apply to apprentices for work 
on projects covered by the Davis-Bacon Act and related Acts. For 
apprentices, registered apprenticeship comes with education and 
training without the high costs of a 4-year college education, and a 
nationally-recognized credential upon completion. American communities 
benefit from enhanced systems to develop skilled workers in high paying 
occupations through collaborative partnerships of education, industry, 
and government, working together and supporting quality training 
programs.
    OA oversees the National Apprenticeship System. OA serves as the 
Registration Agency, and its staff members are directly responsible 
for, registered apprenticeship activities in 25 States. It also 
provides technical assistance and oversight to 25 SAAs in the other 25 
States, in the District of Columbia, the Virgin Islands, and Guam. In 
these ``SAA States,'' the SAA has requested and received recognition 
from the Secretary of Labor to serve as the entity authorized to 
register and oversee State and local apprenticeship programs for 
Federal purposes. Therefore, in SAA States, the SAA, in accordance with 
Federal regulations, serves as the Registration Agency and has 
responsibility for registering apprenticeship activities for Federal 
purposes.
    Apprenticeship programs appear in traditional industries, such as 
construction (which has historically trained the majority of 
apprentices) and manufacturing, as well as in new and emerging 
industries, such as health care, information and communications 
technology, transportation and logistics, and energy, which are 
projected to add substantial numbers of new jobs to the economy.
    Apprenticeship has become increasingly attractive to workforce 
policy-makers in the U.S., and more in focus after witnessing the 
expansive growth in apprenticeship in some of our closest allies, such 
as the United Kingdom, Canada, and Australia. U.S. policy-makers have 
studied these countries as well as several other European countries, 
such as Germany, Switzerland, and Austria, where apprenticeships have 
been ingrained in the culture for centuries and train large percentages 
of their workforce. The United States Departments of Labor, Commerce, 
and Education have signed Joint Declarations of Intent to cooperate on 
workforce training with both Germany \7\ and Switzerland; \8\ 
apprenticeship systems and strategies are featured in both of these 
Joint Declarations.
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    \7\ Joint Declaration of Intent between the U.S. and the Federal 
Republic of Germany signed June 5, 2015 https://www.dol.gov/ilab/diplomacy/Signed%20US-Germany%20JDoI%20(English).pdf.
    \8\ Joint Declaration of Intent between the U.S. and the Swiss 
Confederation signed July 7-9, 2015 https://www.dol.gov/ilab/diplomacy/Switzerland-JDoI.pdf.
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    In light of favorable policy research and the increased business 
demand for high-quality workforce skills and competencies, the 
Department substantially increased its investments in Registered 
Apprenticeship in recent years.\9\ The Department's new initiative, 
ApprenticeshipUSA, seeks to advance apprenticeship and build a strong 
pipeline of skilled workers, critical for companies to grow their 
business and compete in the global economy. The ApprenticeshipUSA 
initiative is stepping up efforts to expand apprenticeship into high-
growth industries and to support a uniquely American apprenticeship 
system. The Department is lifting the image and quality of Registered 
Apprenticeship throughout the nation, and broadening its scope of 
training and development activities into an array of diverse industries 
and occupations.
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    \9\ The Department awarded $175 million in American 
Apprenticeship Grants in September 2015. See https://www.dol.gov/opa/media/press/eta/ETA20151762.htm. Congress also issued a 
supplemental appropriation of $90 million to OA in Fiscal Year 2016, 
which OA is using for new investments through ApprenticeshipUSA to 
expand apprenticeship in the United States. See https://www.whitehouse.gov/the-press-office/2016/04/21/fact-sheet-investing-90-million-through-apprenticeshipusa-expand-proven (last accessed 
June 22, 2016).
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    Through ApprenticeshipUSA, the Department has taken steps to focus 
on sector-based and industry engagement in expansion efforts, such as 
promoting business engagement in the Leaders of Excellence in 
Apprenticeship Development, Education, and Research (LEADERs) and the 
Sectors of Excellence in Apprenticeship (SEAs) initiatives, designed to 
expand the number of employers training apprentices, to increase 
program quality, and to build pipelines of diverse populations into 
apprenticeship.
    As apprenticeship expands in the U.S., the Department remains 
committed to long-standing principles of equal employment opportunity 
to ensure that this expansion draws from and benefits the entire 
American workforce, providing more Americans a path to good jobs and 
careers with living wages that apprenticeships offer, in line with the 
Administration's commitment to double and diversify apprenticeship. The 
Department is also committed to using these new initiatives and 
available resources, in conjunction with business, industry, and 
community partners, to collaborate and build new pipelines into 
apprenticeship programs, with diversity as a cornerstone of growth in 
our expansion efforts.
    Increasing diversity in apprenticeship will further the goals and 
demonstrate support of the President's Administration's My Brother's 
Keeper \10\ (MBK) Task Force, a coordinated Federal effort to address 
persistent opportunity gaps faced by boys and young men of color and 
ensure that all young people can reach their full potential. This rule 
also builds upon programs such as the Women in Apprenticeship and 
Nontraditional Occupations (WANTO) \11\ initiative, which provides 
technical assistance to improve outreach, recruitment, hiring, 
training, employment, and retention of women, including women of color 
and women with disabilities. The Department has additionally provided 
support for diversity in apprenticeship through the 2015 American 
Apprenticeship Initiative grant that supported programs with a focus 
upon including underrepresented populations, including women, people of 
color, and individuals with disabilities.
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    \10\ My Brother's Keeper initiative was announced by President 
Barack Obama on February 27, 2014, https://www.whitehouse.gov/my-brothers-keeper (last accessed May 11, 2016).
    \11\ The WANTO Act of 1992, Public Law 102-530, 29 U.S.C. 2501 
et seq.
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    Building a sustained effort to ensure that the benefits 
apprenticeship programs provide are broadly available to all is a key 
goal of these revised regulations. The history, demographic

[[Page 92028]]

patterns, and documented experiences in apprenticeships of members of 
certain underrepresented groups demonstrate the continuing obstacles to 
the full participation of these groups in registered apprenticeship 
programs.
    In evaluating the need for this rule, OA analyzed participant 
demographics in apprenticeship programs in construction and non-
construction industries and the demographics of the national labor 
force. OA reviewed apprenticeship data from OA's Registered 
Apprenticeship Partners Information Data System (RAPIDS) \12\ and 
analyzed national labor force data from the Current Population Survey 
(CPS). Using the data from these sources to compare the demographic 
characteristics of the national workforce to the demographics of 
individuals enrolled in apprenticeships makes clear that notable 
disparities exist in apprenticeship participation and completion.
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    \12\ RAPIDS includes individual, apprentice-level data from the 
25 states in which OA is the Registration Agency and from the nine 
SAA states that have chosen to participate. However, unless 
otherwise stated, the tables and discussions of RAPIDS data are 
limited to the apprentice data managed by OA staff. The analysis 
excludes apprentice data maintained by State Apprenticeship 
Agencies, including those that participate in the RAPIDS database, 
since the majority of the SAA states provide limited aggregated 
information which does not lend itself to detailed statistical 
analysis of demographic characteristics. Given the unique structure 
of the Registered Apprenticeship system, OA believes that data 
managed by OA staff is an acceptable proxy for the nation as a 
whole, because this individual record dataset contains 62 percent of 
the total active apprentices nationwide (excluding active military 
members--USMAP). It should be noted that the United Services 
Military Apprenticeship Program (USMAP) serves approximately 21 
percent of all U.S. apprentices.
    The comparisons made here between the demographics of the 
apprenticeship workforce and the demographics of the national labor 
force are made because using national-level data allows for the use 
of certain data breakdowns--such as looking at racial shares of the 
workforce of a particular level of educational attainment--that 
would not be possible to do using readily available public state-
level data. The 25 states from which the RAPIDS data are drawn are, 
however, broadly demographically representative of the United States 
as a whole, and using aggregated data from only these 25 states 
would not have substantially impacted these comparisons. Looking at 
all participants in the labor force in calendar year 2015 over age 
16, the shares that are women (46.8 percent) and Black or African 
American (12.3 percent) in the national labor force are not 
significantly different than the shares that are women and Black or 
African American in these 25 states (46.2 percent and 11.8 percent 
respectively), while the share of these states' labor forces that is 
Hispanic (19.7 percent) is actually somewhat higher than the share 
of the national labor force that is Hispanic (16.6 percent). 
Consequently, had aggregated state-level data from these 25 states 
been used instead of the national-level data, the disparities 
illustrated below would have likely looked largely identical or even 
slightly more substantial in the case of Hispanic workers.
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    As described in more detail below, these data and other available 
analyses indicate that certain groups continue to face substantial 
barriers to entry into and, for some groups, completion of registered 
apprenticeships. These barriers result in the following:
     Lower than expected enrollment rates in registered 
apprenticeships among women and specific minority groups;
     To the extent that women and minorities participate in 
registered apprenticeships, concentration of these groups in 
apprenticeships for lower-paying occupations; and
     Significantly lower apprenticeship completion rates among 
specific minority groups and lower construction apprenticeship 
completion rates among minority groups and women.
    It should also be noted that OA lacks data on the apprenticeship 
experiences of individuals with disabilities, which complicates efforts 
both to measure the challenges faced by this group and to address the 
disparities in access and participation that are likely to exist given 
the disparities faced by these individuals in the labor force more 
broadly.

Women in Registered Apprenticeships

    In general, women's enrollment in registered apprenticeship 
programs is significantly lower than would be expected based on labor 
market data. This disparity exists in comparison to the number of men 
in registered apprenticeships and also in comparison to the number of 
women in the wider civilian labor force. As shown in Table 1, in FY2015 
the national labor force was 53.2 percent male and 46.8 percent female, 
and even when looking only at the labor force lacking a college 
degree--those workers most likely to participate in apprenticeship 
programs--the labor force was still 43.0 percent female.\13\
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    \13\ All figures derived from CPS data. Those participants in 
the labor force lacking a college degree consist of those with no 
high school diploma, those that completed high school but did not 
attend college, and those that attended some college but did not 
receive an associate's degree or bachelor's degree. Note that the 
Bureau of Labor Statistics only publishes educational attainment 
labor force statistics for individuals age 25 and over. 
Consequently, while the overall labor force shares presented in the 
Table 1 are for all individuals age 16 and above, the shares of 
labor force participants lacking a college degree are for 
individuals age 25 and above. While this means that the comparison 
between the latter set of figures and the apprenticeship workforce 
is not perfect given that many apprentices are below age 25, it 
nevertheless provides valuable insight into how the composition of 
the apprenticeship workforce compares to a group of workers of which 
they already are, or are likely to, become a part.

    Table 1--Male and Female Shares of National Labor Force in FY2015
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                                                               Share of
                                                  Share of   labor force
                                                labor force    with no
                                                    (%)        college
                                                              degree (%)
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Men...........................................         53.2         57.0
Women.........................................         46.8         43.0
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Source: Current Population Survey.

    Yet, as Table 2 illustrates, in the last decade, on average, women 
comprised only 7.1 percent of all new enrollments in registered 
apprenticeships, whereas men accounted for 92.9 percent. Additionally, 
while the share of newly enrolled apprentices that are women has 
fluctuated up and down by small margins over this period, overall no 
noticeable progress has been made, and the share of newly enrolled 
apprentices in FY2015 that were women is identical to the share in 
FY2006 that were women.

 Table 2--New Enrollments in Registered Apprenticeship by Sex and Fiscal
                          Year, All Industries
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                                                         Female    Male
                      Fiscal year                         (%)      (%)
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2006..................................................      7.1     92.9
2007..................................................      6.1     93.9
2008..................................................      6.7     93.3
2009..................................................      7.8     92.2
2010..................................................      8.3     91.7
2011..................................................      6.7     93.3
2012..................................................      7.5     92.5
2013..................................................      6.7     93.3
2014..................................................      6.7     93.3
2015..................................................      7.1     92.9
10 Year Average.......................................      7.1     92.9
CPS Share of Labor Force (FY2015).....................     46.8     53.2
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Source: Query of RAPIDS database--May 2016.

    Additionally, when looking at the 50 occupations with the largest 
number of apprenticeships, it becomes clear that women who are 
participating in the largest apprenticeship programs are 
disproportionately ending up in lower-paying occupations.\14\ As shown 
in Table 3 below, while women account for 9.6 percent of the 
enrollments in apprenticeship programs in the lowest paying 
apprenticeable occupations, they make up only 2.2 percent of 
enrollments in apprenticeship programs in the highest paying 
apprenticeable occupations. Also illustrative of this fact

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is that while the 16 occupations comprising the lowest-paid tier of 
these 50 occupations account for only just over one-fifth of total 
apprenticeship enrollments, they account for nearly half of female 
enrollments.\15\
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    \14\ Note that these 50 occupations accounted for 82.6 percent 
of all apprentices in the RAPIDS database as of September 2015.
    \15\ Analysis of RAPIDS data from May 2016 query of RAPIDS 
database and BLS 2015 National Occupational Employment and Wage 
Estimates.

     Table 3--Representation of Women in Registered Apprenticeship in Top 50 (Most Populous) Apprenticeable
                                              Occupations in FY2015
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                                                                                                   Women's share
                  Category                      Example job titles in the tier      Mean hourly   of enrollments
                                                                                       wage             (%)
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Highest Paid Occupations Tier (17            Electrician, Pipe Fitter, Plumber,           $28.04             2.2
 occupations).                                Telecommunications Technician.
Intermediate Paid Occupations Tier (17       Firefighter, Carpenter, Sheet Metal           22.70             4.3
 occupations).                                Worker, Glazier, Floor Layer.
Lowest Paid Occupations Tier (16             Truck Driver, Roofer, Painter,                17.16             9.6
 occupations).                                Housekeeper, Cook, Child Care
                                              Development Specialist.
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Source: Query of RAPIDS database--May 2016; Bureau of Labor Statistics May 2015 National Occupational Employment
  and Wage Estimates.

    When analyzing the distribution of female apprentices on an 
industry basis, more pronounced disparities become apparent. As seen in 
Table 4 below, of the 20 major industries in which apprenticeship 
programs exist, women's share of apprenticeship enrollments is only 
greater than or equal to their share of the national labor force in 
three industries and greater than their share of the national labor 
force without a college degree in four industries (Healthcare and 
Social Assistance, Retail Trade, Finance and Insurance, and 
Warehousing). Among the top five industries by total apprenticeship 
enrollments (the first five industries shown in the Table 4), women's 
share of enrollments is no more than 11.6 percent. While there are many 
reasons that these apprenticeship enrollment rates do not equal the 
share of the labor force that is women or the share of the labor force 
without a college degree that is women, the magnitudes of the 
disparities present clearly indicate the presence of significant 
inequities in access and participation.

    Table 4--New Enrollments in Registered Apprenticeship by Sex and
                           Industry in FY2015
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                                               Total       Female  share
                Industry                    enrollments         (%)
------------------------------------------------------------------------
Construction \16\.......................         165,291             2.8
Public Administration...................          19,579            11.6
Manufacturing...........................          17,154             8.0
Utilities...............................           8,389             1.7
Transportation..........................           4,951             5.9
Health Care and Social Assistance.......           2,274            71.2
Retail Trade............................           1,782            72.0
Education...............................           1,755            17.1
Other Services, except Public                      1,658            15.6
 Administration.........................
Wholesale Trade.........................           1,529             9.2
Administrative and Support and Waste                 959            18.6
 Management and Remediation Services....
Accommodation and Food Services.........             701            36.2
Agriculture, Forestry, Fishing and                   701             8.0
 Hunting................................
Information.............................             673            12.5
Professional, Scientific, and Technical              270            20.0
 Services...............................
Mining, Quarrying, and Oil and Gas                   225             3.1
 Extraction.............................
Finance and Insurance...................             146            46.6
Arts, Entertainment, and Recreation.....              43            37.2
Real Estate and Rental and Leasing......              43             7.0
Warehousing.............................              41            58.5
------------------------------------------------------------------------
Source: Query of RAPIDS database--May 2016.

    Disparities between male and female enrollment rates are 
particularly dramatic in the construction industry, where over 70 
percent of apprentices were enrolled in FY2015.\17\ That year, only 2.8 
percent of enrollments were women, the second lowest female enrollment 
rate among all industries, trailing only the Utilities industry (1.7 
percent). While historical and ongoing discrimination are not the sole 
explanations for this, the magnitude of the disparities seen in the 
data, along with several studies of the construction industry and the 
anecdotal experience of the women working in the industry who submitted 
comments to the proposed rule, suggest that

[[Page 92030]]

discrimination remains a significant factor.\18\
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    \16\ Joint apprenticeship training committees (JATCs) have been 
removed from the Education industry category and included in the 
Construction industry category.
    \17\ Joint apprenticeship training committees (JATCs) have been 
removed from the Education industry category and included in the 
Construction industry category.
    \18\ See, e.g., Permanent Commission on the Status of Women, 
``Pre-Apprenticeship Construction Training Manual for Women.'' 
Hartford, CT, (2007); Byrd, B., ``Women in Carpentry Apprenticeship: 
A Case Study,'' 24 Labor Studies Journal, at 8 (Fall 1999); 
Ericksen, J., and Palladino Schultheiss D., ``Women Pursuing Careers 
in Trades and Construction,'' 36 Journal of Career Development at 
69-70 (September 2009); Moir, S., Thomson, M., and Kelleher, C., 
``Unfinished Business: Building Equality for Women in the 
Construction Trades,'' Labor Resource Center Publications. Paper 5 
at 10-12 (2011); and ``Women in the Construction Workplace: 
Providing Equitable Safety and Health Protection,'' Health and 
Safety of Women in Construction (HASWIC) Workgroup, Advisory 
Committee on Construction Safety and Health (ACCSH), submitted to 
Occupational Safety and Health Administration (OSHA), Department of 
Labor (June 1999).
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    In the proposed rule, the Department stated that the construction 
trades have traditionally used informal networks and referrals and word 
of mouth to recruit for open apprenticeships. While we recognize, in 
response to comments submitted, that significant progress has been made 
in wider recruitment for apprenticeships and in opening these networks, 
historical barriers linger. Personal introductions and recommendations 
(as well as nepotism in the past) continue to be significant factors in 
selection for construction apprenticeships and work, and many potential 
female apprentices are not even be aware of the apprenticeship and job 
opportunities available.\19\ The problem of underrepresentation then 
perpetuates itself; because women have historically been 
underrepresented in construction apprenticeships and jobs, many of them 
may not have access to the interpersonal relationships and informal 
networks necessary to receive information concerning these 
opportunities and be selected for them.\20\ Barriers remain even after 
women gain entry into these programs. Several women submitted comments 
recounting discrimination they faced during registered apprenticeship 
programs, such as being assigned more arduous tasks than male 
counterparts or otherwise being required to work harder than male 
counterparts to receive equivalent recognition, being given less 
skilled and meaningful tasks than male counterparts, being given fewer 
hours than male counterparts, and seeing men with less skill promoted 
ahead of them. Several female commenters described incidents of sexual 
harassment and retaliation that they experienced during their 
apprenticeships or while working in the trades.
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    \19\  See, e.g., Bilginsoy, C., ``The Hazards of Training: 
Attrition and Retention in Construction Industry Apprenticeship 
Programs,'' 57 Industrial & Labor Relations Review, at 54-67 (Oct. 
2003); Byrd, B, ``Women in Carpentry Apprenticeship: A Case Study,'' 
24 Labor Studies Journal, at 8-10 (Fall 1999); National Women's Law 
Center, ``Women in Construction Still Breaking Ground,'' (2014), 
available at http://www.nwlc.org/sites/default/files/pdfs/final_nwlc_womeninconstruction_report.pdf.
    \20\ Bilginsoy, C., ``The Hazards of Training: Attrition and 
Retention in Construction Industry Apprenticeship Programs,'' 57 
Industrial & Labor Relations Review, at 54-67, at 65 (Oct. 2003).
    Additionally, the author of a study on women in carpentry 
apprenticeships suggests that apprenticeship programs in 
construction need to make a concerted effort to recruit females if 
they want to increase the number of female applicants. Byrd, B., 
``Women in Carpentry Apprenticeship: A Case Study,'' 24 Labor 
Studies Journal, at 10 (Fall 1999).
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    In addition to low enrollment rates, women complete apprenticeships 
in the construction industry at lower rates than men. As shown in Table 
5 below, while across all industries women complete apprenticeships at 
a higher rate (50.9 percent) than do men (42.0 percent), within the 
construction industry women completed apprenticeships at a rate of only 
36.5 percent compared to 40.6 percent for men.

                            Table 5--Apprenticeship Completion Rates in FY2015 by Sex
----------------------------------------------------------------------------------------------------------------
                                          FY2015 completion rates \21\
-----------------------------------------------------------------------------------------------------------------
                                   Completions (all     Completion rate       Completions       Completion rate
                                      industries)      (all industries)     (construction)    (construction) (%)
----------------------------------------------------------------------------------------------------------------
Male............................              23,763                42.0              11,685                40.6
Female..........................               2,248                50.9                 271                36.5
----------------------------------------------------------------------------------------------------------------
Source: Query of RAPIDS database--June 2016.

    These disparities can be addressed, however, and evidence 
illustrates that women do participate and succeed in apprenticeship 
programs at higher levels when provided equal opportunity and support. 
The state of Oregon, for example, has been proactively working to 
increase diversity in its highway construction workforce since 2009 by 
providing potential highway construction workers with a variety of 
supports to help them complete relevant apprenticeships. The state's 
Highway Construction Workforce Development Program (WDP) provides pre-
apprenticeship programs, support services including childcare and 
transportation subsidies, and mentoring and retention services to help 
apprentices gain the training and credentials they need, with a 
particular emphasis on serving female and minority candidates.\22\ A 
2014 poll of apprentices by WDP found that 80 percent of female active 
apprentices reported that WDP supports allowed them to take a job they 
would not otherwise have been able to take, and completion rates for 
female apprentices who received financial services from the WDP were 
significantly higher than those who did not receive any services (60.9 
percent versus 31.5 percent).\23\ Between 2005 and 2013, the share of 
all heavy highway construction apprentices in Oregon that were female 
apprentices or apprentices of color increased from 16.5 percent to 26.9 
percent, with the program likely playing a significant role in more 
recent years.\24\
---------------------------------------------------------------------------

    \21\ Completion rate means the percentage of an apprenticeship 
cohort who receives a certificate of apprenticeship completion 
within 1 year of the expected completion date. For more information 
see Bulletin FY 2011-07--Program Performance--Calculation of 
Registered Apprenticeship Program Completion Rates (http://doleta.gov/OA/bul10/Bulletin_2011-07_Completion_Rates.pdf).
    \22\ S. Burd-Sharps, K. Lewis, and M. Kelly, ``Building a More 
Diverse Skilled Workforce in the Highway Trades: Are Oregon's 
Current Efforts Working?'' available at http://www.pdx.edu/sociology/sites/www.pdx.edu.sociology/files/Building%20a%20More%20Diverse%20Skilled%20Workforce%20in%20the%20Highway%20Trades%20FINAL%20REPORT.pdf.
    \23\ Id.
    \24\ Id.
---------------------------------------------------------------------------

    Examples such as that seen in Oregon demonstrate that progress can 
be made in improving women's participation and success in 
apprenticeship programs when doing so is made a priority. Making sure 
that women are aware of the apprenticeship opportunities available to 
them, that they receive equal opportunities to participate in those 
apprenticeship programs, and that they receive the same quality of 
training and mentorship in those programs are all critical to closing 
the significant utilization gaps we see today.

[[Page 92031]]

Minorities in Apprenticeship

    The participation of racial and/or ethnic minorities in 
apprenticeships has been uneven and varies by group. In FY2015, the 
``Black or African American'' demographic group \25\ comprised 12.3 
percent of the national labor force and 14.1 percent of the labor force 
without a college degree (see Table 6), but made up 10.0 percent of all 
apprenticeship enrollments. While those gaps are clearly substantially 
smaller than those seen among women, focusing only on this broad 
measure can mask significant underrepresentation of Black or African 
Americans in particular industries.
---------------------------------------------------------------------------

    \25\ We refer herein to ``Black or African American'' because 
that is the racial categorization used by the Bureau of Labor 
Statistics in CPS data, and is in turn used within the definition of 
``race'' in the part 30 regulations. See Bureau of Labor Statistics 
Glossary, available at http://www.bls.gov/bls/glossary.htm#R (last 
accessed June 24, 2016); 29 CFR 30.2.

     Table 6--Racial and Ethnic Composition of Labor Force in FY2015
------------------------------------------------------------------------
                                                               Share of
                                                  Share of   labor force
                                                labor force    with no
                                                    (%)        college
                                                             degree (9%)
------------------------------------------------------------------------
White.........................................         78.8         78.5
Black or African American.....................         12.3         14.1
Other Race....................................          9.0          7.4
Hispanic or Latino \26\.......................         16.6         22.7
------------------------------------------------------------------------
Source: Current Population Survey.

    For example, as can be seen in Table 7, while Black or African 
Americans were well-represented in apprenticeships in industries such 
as Public Administration, Health Care and Social Assistance, and Other 
Services in FY2015, they comprised only 8.8 percent of apprentice 
enrollments in Construction, the industry with by far the largest 
number of apprentices. Black or African Americans also comprised under 
10 percent of enrollments in seven other industries, including 
Utilities; Agriculture, Forestry, Fishing, and Hunting; and 
Professional, Scientific, and Technical Services among others. These 
disparities illustrate the uneven manner in which Black and African 
Americans participate in apprenticeships across industries and also 
speak to the importance of disaggregating such enrollment data so as to 
gain a more accurate picture of where and to what extent different 
groups are being underrepresented.
---------------------------------------------------------------------------

    \26\ Note that percentages in this table will not add up to 100 
percent due to rounding and because there is overlap between the 
Hispanic or Latino ethnic group and the racial groups presented in 
the table.
    \27\ Joint apprenticeship training committees (JATCs) have been 
removed from the Education industry category and included in the 
Construction industry category.

              Table 7--New Enrollments in Registered Apprenticeship by Race and Industry in FY2015
----------------------------------------------------------------------------------------------------------------
                                                                     Black or
                                       Total        White share       African       Other race      Unreported
            Industry                enrollments         (%)       American share     share (%)    race share (%)
                                                                        (%)
----------------------------------------------------------------------------------------------------------------
Construction \27\...............         165,291            62.4             8.8             7.2            21.5
Public Administration...........          19,579            62.0            24.4             3.5            10.1
Manufacturing...................          17,154            68.6            10.4             6.0            15.0
Utilities.......................           8,389            74.5             6.8             4.0            14.6
Transportation..................           4,951            49.5            11.1             5.2            34.2
Health Care and Social                     2,274            53.2            31.9             3.2            11.7
 Assistance.....................
Retail Trade....................           1,782            26.3            14.3             3.3            56.2
Education.......................           1,755            49.3            13.2             9.8            27.7
Other Services, except Public              1,658            55.6            29.5             2.8            12.1
 Administration.................
Wholesale Trade.................           1,529            66.8            13.3             2.0            17.8
Administrative and Support and               959            31.0            22.3             8.2            38.5
 Waste Management and
 Remediation Services...........
Accommodation and Food Services.             701            68.2            13.0             8.3            10.6
Agriculture, Forestry, Fishing               701            67.8             3.0             5.8            23.4
 and Hunting....................
Information.....................             673            56.8            16.2            18.1             8.9
Professional, Scientific, and                270            55.6             5.9            21.1            17.4
 Technical Services.............
Mining, Quarrying, and Oil and               225            37.8             8.4            32.0            21.8
 Gas Extraction.................
Finance and Insurance...........             146            67.1            24.7             4.1             4.1
Arts, Entertainment, and                      43            48.8             9.3            14.0            27.9
 Recreation.....................
Real Estate and Rental and                    43            86.0             2.3             2.3             9.3
 Leasing........................
Warehousing.....................              41             4.9             4.9             0.0            90.2
----------------------------------------------------------------------------------------------------------------
Source: Query of RAPIDS database--May 2016.

    Studies examining apprenticeship data at the occupation level have 
also presented compelling evidence that Blacks or African Americans are 
underrepresented in certain apprenticeable occupations. In an analysis 
of 2005-2007 ACS data broken down to the occupational level in the 
construction, extraction, and maintenance sector, researchers found 
that Black or African-American men experienced underrepresentation in 
81 percent of the 67 precisely-defined occupations that comprise this 
sector.\28\
---------------------------------------------------------------------------

    \28\ The authors also found that across occupations in all 
sectors examined, Black or African-American men were 
underrepresented in 49 percent of occupations. To determine whether 
underrepresentation existed in a particular occupation, the authors 
compared the share workers in the occupation that were Black or 
African American to the share of workers in the occupation that one 
would have expected to be Black or African American given the 
proportion of Black or African-American workers that have the 
education level associated with that occupation. See Hamilton, D, 
Algernon A., and William D., Jr., ``Whiter Jobs, Higher Wages: 
Occupational Segregation and the Lower Wages of Black Men.'' 
Economic Policy Institute, Washington, DC (Feb. 2011).

---------------------------------------------------------------------------

[[Page 92032]]

    Examining the distribution of Hispanic apprentices illustrates a 
similar pattern of uneven participation of workers across industries 
and points to the existence of significant underrepresentation of 
Hispanics in a number of industries. In FY2015, Hispanics comprised 
20.2 percent of apprenticeship enrollments, which was higher than their 
share of the national labor force (16.6 percent) but below their share 
of the labor force without a college degree (22.7 percent). Looking 
specifically at industry employment, it can be seen in Table 8 that 
while Hispanics were relatively well represented in industries such as 
Education and Wholesale Trade, of the top seven industries by 
apprenticeship enrollment, Hispanics accounted for less than 10 percent 
of enrollees in all but one (Construction). In total, Hispanics 
accounted for a share of enrollments that was below their share of the 
national labor force in 13 industries, and accounted for a share of 
enrollments that was below their share of the labor force without a 
college degree in 15 industries.

            Table 8--New Enrollments in Registered Apprenticeship by Ethnicity and Industry in FY2015
----------------------------------------------------------------------------------------------------------------
                                                                                                    Unreported
                    Industry                           Total      Hispanic share   Non-Hispanic      ethnicity
                                                    enrollments         (%)          share (%)       share (%)
----------------------------------------------------------------------------------------------------------------
Construction \29\...............................         165,291            21.2            55.7            23.1
Public Administration...........................          19,579             7.2            46.8            46.0
Manufacturing...................................          17,154             5.6            62.1            32.3
Utilities.......................................           8,389             7.2            61.7            31.1
Transportation..................................           4,951             6.4            37.2            56.3
Health Care and Social Assistance...............           2,274             9.9            58.9            31.1
Retail Trade....................................           1,782             4.7            14.9            80.4
Education.......................................           1,755            30.9            47.0            22.1
Other Services, except Public Administration....           1,658            10.5            38.9            50.6
Wholesale Trade.................................           1,529            24.0            61.7            14.3
Administrative and Support and Waste Management              959             8.4            36.6            55.0
 and Remediation Services.......................
Accommodation and Food Services.................             701             8.1            47.9            43.9
Agriculture, Forestry, Fishing and Hunting......             701            23.7            33.7            42.7
Information.....................................             673            22.1            44.7            33.1
Professional, Scientific, and Technical Services             270             7.4            55.6            37.0
Mining, Quarrying, and Oil and Gas Extraction...             225            24.0            50.2            25.8
Finance and Insurance...........................             146             2.1            87.7            10.3
Arts, Entertainment, and Recreation.............              43            23.3            58.1            18.6
Real Estate and Rental and Leasing..............              43             0.0            55.8            44.2
Warehousing.....................................              41             7.3             2.4            90.2
----------------------------------------------------------------------------------------------------------------
Source: Query of RAPIDS database--May 2016.

    Further, minority groups tend to be more concentrated in 
apprenticeships for lower-paying occupations than are apprentices as a 
whole. RAPIDS data for the 50 occupations with the largest numbers of 
apprentices show that both Black or African-American enrollees and 
Hispanic enrollees in apprenticeship programs make up higher shares of 
apprentices in low-wage occupations than of apprentices in high-wage 
occupations. As seen below in Table 9, while Black or African Americans 
comprise 17.3 percent of enrollees in the lowest-paid occupation tier, 
they account for only 7.8 percent of enrollees in the highest-paid 
tier, and while Hispanics comprise 22.4 percent of enrollees in the 
lowest-paid occupation tier, they account for only 15.6 percent of 
enrollees in the highest-paid tier. Further illustrating this point is 
that while enrollments in the bottom wage tier account for 21.2 percent 
of total apprenticeship enrollments among these 50 occupations, they 
account for 35.8 percent of Black or African American enrollments and 
25.3 percent of Hispanic enrollments.
---------------------------------------------------------------------------

    \29\ Joint apprenticeship training committees (JATCs) have been 
removed from the Education industry category and included in the 
Construction industry category.

              Table 9--Representation by Race in 50 Most Populous Apprenticeable Occupations FY2015
                                                  [RAPIDS data]
----------------------------------------------------------------------------------------------------------------
                                                                                     Black or
                                                                                      African     Hispanic share
               Category                   Example job titles in     Mean hourly   American share  of enrollments
                                                the tier               wage       of enrollments        (%)
                                                                                        (%)
----------------------------------------------------------------------------------------------------------------
Highest Paid Occupations Tier (17       Electrician, Pipe                 $28.04             7.8            15.6
 Occupations).                           Fitter, Plumber,
                                         Telecommunications
                                         Technician.
Intermediate Paid Occupations Tier (17  Firefighter, Carpenter,            22.70             9.5            22.1
 Occupations).                           Sheet Metal Worker,
                                         Glazier, Floor Layer.

[[Page 92033]]

 
Lowest Paid Occupations Tier (16        Truck Driver, Roofer,              17.16            17.3            22.4
 Occupations).                           Painter, Housekeeper,
                                         Cook, Child Care
                                         Development Specialist.
----------------------------------------------------------------------------------------------------------------
Source: Query of RAPIDS database--May 2016; Bureau of Labor Statistics May 2015 National Occupational Employment
  and Wage Estimates.

    Finally, RAPIDS data also reveal that there are challenges for 
minority groups in completion rates as well. For example, the FY2015 
completion rate for Black or African American apprentices in all 
industries was only 39.3 percent, and in the construction industry it 
was only 30.6 percent (see Table 10). White apprentices, by comparison, 
had an all-industry completion rate of 47.3 percent, and a 
construction-industry completion rate of 44.6 percent. Similar patterns 
are seen among Hispanic apprentices, who had an all-industry completion 
rate of 31.7 percent and a construction-industry completion rate of 
34.0 percent in FY2015, compared to a 46.5 percent all-industry 
completion rate and a 43.2 construction-industry percent completion 
rate among Non-Hispanics.
---------------------------------------------------------------------------

    \30\ Completion rate means the percentage of an apprenticeship 
cohort who receives a certificate of apprenticeship completion 
within 1 year of the expected completion date. For more information 
see Bulletin FY 2011-07--Program Performance--Calculation of 
Registered Apprenticeship Program Completion Rates, available at 
http://doleta.gov/OA/bul10/Bulletin_2011-07_Completion_Rates.pdf.

                    Table 10--Apprenticeship Completion Rates in FY2015 by Race and Ethnicity
----------------------------------------------------------------------------------------------------------------
                                          FY2015 completion rates \30\
-----------------------------------------------------------------------------------------------------------------
                                                        Completion rate
                                   Completions (all    (all industries)       Completions       Completion rate
                                      industries)             (%)           (construction)    (construction) (%)
----------------------------------------------------------------------------------------------------------------
White...........................              17,853                47.3               9,168                44.6
Black or African American.......               3,000                39.3                 816                30.6
Non-Hispanic....................              15,690                46.5               7,951                43.2
Hispanic........................               3,709                31.7               1,568                34.0
----------------------------------------------------------------------------------------------------------------
Source: Query of RAPIDS database--June 2016.

    That such disparities and patterns of uneven participation exist is 
not surprising given the challenges often faced by many minorities and 
ethnic groups as they look to find work in the industries and 
occupations where apprenticeships are most common. These workers can be 
confronted by workplace cultures that are overtly or subtly hostile to 
workers of their race or ethnic background, and they often lack access 
to the types of interpersonal relationships and professional networks 
that would help them find jobs and receive the mentorship and training 
they need to complete their apprenticeships. One study of apprentices 
in the highway trades in Oregon published in 2015 documents all of 
these challenges.\31\ In surveying apprentices in the highway trades, 
it found that 21 percent of men of color and 30 percent of women of 
color reported feeling disadvantaged on the job due to their race or 
ethnicity. Speaking to the issues surrounding minorities' access to 
critically important informal networks, the survey also found that 
while only 13 percent of white men stated that problems with 
journeyworkers were a challenge during their apprenticeship, 21 percent 
of men of color and 35 percent of women of color reported such 
problems. Indeed, while 79 percent of white men reported receiving 
mentoring on the job, only 60 percent of men of color and 38 percent of 
women of color reported the same.
---------------------------------------------------------------------------

    \31\ M. Kelly et al., ``When Working Hard is Not Enough for 
Female and Racial/Ethnic Minority Apprentices in the Highway 
Trades,'' 30 Sociology Forum no. 2 (June 2015).
---------------------------------------------------------------------------

    All of these challenges and disparities can make it very difficult 
for minority workers to break in to trades in which they have not been 
traditionally well represented, but they can be successfully addressed 
by robust affirmative action efforts if these efforts are tailored to 
address the specific circumstances of the disparity.

Individuals With Disabilities in Apprenticeship

    While the Department does not currently have data on the 
representation of persons with disabilities in apprenticeship programs, 
the underemployment of individuals with disabilities in the labor force 
more broadly is well documented. According to data from BLS, 30.5 
percent of working-age individuals with disabilities were in the labor 
force in 2015, compared with 76.1 percent of working-age individuals 
with no disability.\32\ The unemployment rate for working-age 
individuals with disabilities was 11.7 percent in 2015, compared with a 
5.2 percent unemployment rate for working-age individuals without a 
disability. Furthermore, wages for individuals with disabilities on 
average lag behind the rest of the workforce. The mean weekly earnings 
of employed full-time wage

[[Page 92034]]

and salary workers with a disability in 2015 were $962 (with a median 
of $737) compared to $1,157 (median $811) for those without a 
disability.\33\ While 28.5 percent of individuals, ages 18 to 64, with 
a disability were in poverty in 2014, the data show that 12.3 percent 
of individuals without a disability were in poverty.\34\
---------------------------------------------------------------------------

    \32\ Source: Current Population Survey data. `Working age' 
refers to individuals between the ages of 16 and 64. As the 
Department's Section 503 Final Rule noted, this acute disparity in 
the workforce participation and unemployment rates of working age 
individuals with disabilities persists, despite the many 
technological advances that now make it possible for a broad array 
of jobs to be successfully performed by individuals with severe 
disabilities.
    \33\ BLS unpublished table A-45.
    \34\ Income and Poverty in the United States: 2014, Current 
Population Reports, issued September 2015, https://www.census.gov/content/dam/Census/library/publications/2015/demo/p60-252.pdf (last 
accessed June 3, 2016).
---------------------------------------------------------------------------

    Affirmative efforts to seek out individuals with disabilities and 
ensure they have fair access to apprenticeship programs and the 
``ticket to the middle class'' that apprenticeship programs provide has 
the potential to powerfully impact these profound inequalities.

Overview of the Apprenticeship Equal Employment Opportunity Notice of 
Proposed Rulemaking and Public Comments

    Leading up to the publication of the Notice of Proposed Rulemaking 
(NPRM), OA received valuable input from a broad array of interested 
individuals, including SAAs; the National Association of State and 
Territorial Apprenticeship Directors (NASTAD); advocacy organizations; 
registered apprenticeship program sponsors such as employers, employer 
associations, and labor-management organizations; journeyworkers; 
former apprentices; and registered apprentices. This input addressed 
features of the existing rules that work well, those that could be 
improved, and additional requirements that might help to effectuate the 
overall goal of ensuring equal opportunity for all individuals who are 
participating in or seeking to participate in the National Registered 
Apprenticeship System. Recurring themes in these town halls, webinars, 
and listening sessions included the need for increased outreach efforts 
to attract women and minorities; focus on equal training and retention 
of apprentices; stricter enforcement of the Equal Employment 
Opportunity (EEO) obligations; recognition of the voluntary nature of 
apprenticeship programs; clarification of complaint procedures; and 
progressive actions by Registration Agencies to achieve sponsor 
compliance with the regulations.
    In developing the proposed rule, the Department also consulted with 
its Advisory Committee on Apprenticeship (ACA). Chartered under the 
Federal Advisory Committee Act, the ACA provides advice and 
recommendations to the Secretary of Labor on a wide range of matters 
related to apprenticeship. The ACA is comprised of approximately 30 
members drawn equally from employers, labor organizations, and the 
public.
    OA's NPRM was published in the Federal Register on November 6, 
2015.\35\ The NPRM sought public comment on a number of proposals 
designed to improve the regulations implementing EEO in apprenticeship. 
The NPRM was published for a 60-day public comment period. After 
receiving several requests to extend the public comment period, OA 
extended the public comment period an additional 15 days to January 20, 
2016.\36\
---------------------------------------------------------------------------

    \35\ 80 FR 68908.
    \36\ 80 FR 80307, Dec. 24, 2015.
---------------------------------------------------------------------------

    The NPRM contained four general categories of proposed revisions to 
the part 30 regulations: (1) Changes required to make part 30 
consistent with the Labor Standards for Registration of Apprenticeship 
Programs set forth in part 29; (2) adding additional protected bases to 
those already delineated in part 30, and further clarifying the scope 
of some of the existing bases; (3) changes to enhance and clarify the 
affirmative steps sponsors must take to ensure equal employment 
opportunity, including the contents of affirmative action programs 
(AAPs), and how these obligations would be reviewed and enforced by 
Registration Agencies; and (4) changes to improve the overall 
readability of part 30. Wherever possible, this Final Rule has 
attempted to streamline and simplify sponsors' obligations, while 
maintaining broad and effective EEO protections for apprentices and 
those seeking entry into apprenticeship programs.
    The first set of changes proposed to align the EEO regulations at 
part 30 with its companion regulations at part 29, and are necessary to 
ensure a cohesive, comprehensive regulatory framework for the National 
Registered Apprenticeship System. To that end, the Department proposed 
to revise or add several definitions and incorporate the procedures set 
forth in part 29 for deregistration of apprenticeship programs, 
derecognition of SAAs, and hearings. The use of a more uniform set of 
procedures streamlines management of the National Apprenticeship 
System. Also proposed were a few minor, conforming changes in 29 CFR 
part 29, the companion rule to part 30.
    The second category of changes proposed to expand the protected 
bases upon which discrimination is unlawful and align the existing 
protected bases with current jurisprudence given the developments in 
EEO law since the regulations were last revised in 1978. Categories 
added to update the rule included age, disability, sexual orientation, 
genetic information; the proposal also took the position that sex 
discrimination included discrimination on the basis of pregnancy and 
gender identity.
    The third category of changes in the proposal was designed to 
improve the effectiveness of program sponsors' required affirmative 
action efforts and of Registration Agencies' efforts to enforce and 
support compliance with this rule. Among these proposed changes were 
the following:

     Listing specific steps all sponsors must undertake to 
ensure equal employment opportunity, including: Dissemination of EEO 
policy; outreach and recruitment obligations in an effort to 
increase diversity in applications for apprenticeship; taking steps 
to keep the workplace free from harassment, intimidation, and 
retaliation; and assigning an individual at the sponsor to oversee 
EEO efforts (proposed Sec.  30.3);
     Specifying in clearer detail the components of a 
written AAP for those sponsors required to maintain one, allowing 
new sponsors more time to establish initial AAPs, and requiring an 
internal, annual review of all written AAP contents (with the 
possibility to extend the review to every two years if their review 
demonstrated compliance with all AAP elements) (proposed Sec.  
30.4);
     As part of an AAP, simplifying the process by which 
sponsors analyze whether the apprenticeship program is 
underutilizing women or minorities, and accordingly whether they 
need to set utilization goals (proposed Sec. Sec.  30.5-30.6);
     Expanding the AAP to include affirmative action 
obligations on the basis of disability, including a 7% utilization 
goal for individuals with disabilities in apprenticeship programs 
and a self-identification mechanism allowing sponsors to 
quantitatively measure their progress against that goal (proposed 
Sec. Sec.  30.7, 30.11);
     Clarifying the existing outreach and recruitment AAP 
obligation, which required engaging in a ``significant number'' of 
ten possible activities, by specifying four required, common-sense 
activities (proposed Sec.  30.8);
     Requiring an annual review of personnel practices to 
ensure the program is operating free from discrimination (proposed 
Sec.  30.9);
     Providing sponsors greater flexibility in how they may 
select apprentices for their programs, provided that such selection 
mechanisms are free from discrimination and comport with the Uniform 
Guidelines for Employee Selection Procedures that already governed 
selection in the existing regulations (proposed Sec.  30.10); and
     Clarifying procedures for apprentices to file 
complaints of discrimination and the types of enforcement actions 
Registration Agencies may take in the event of violations (proposed 
Sec. Sec.  30.12-30.15).

While progress has been made in some segments of the workforce since 
the

[[Page 92035]]

promulgation of the existing part 30, these enhancements and 
improvements were proposed to address the ongoing widespread 
underutilization of historically disadvantaged worker groups in 
apprenticeship. The Department has a compelling interest in ensuring 
that its approval of a sponsor's apprenticeship program does not serve 
to support, endorse, or further promote discrimination.
    The fourth category of changes was proposed to improve the overall 
readability of part 30 through a reorganization of the part 30 
requirements, basic editing, providing clarifying language where 
needed, and adhering to plain language guidelines. This includes 
replacing the word ``shall'' with ``must'' or ``will'' as appropriate 
to the context. The proposed rule added a new section setting forth the 
effective date for this rule and for programs currently registered to 
come into compliance with the revised regulations.
    OA received 245 comments on the NPRM. Commenters represented 
diverse perspectives including: 107 individuals; 45 advocacy and public 
interest groups; 27 Joint Apprenticeship Training Committees (state/
local); 13 state government agencies; 11 industry association/business 
interests; 10 national unions; 9 state and local unions; and 5 private 
employers.
    The commenters raised a broad range of issues. Most commenters 
supported the broader intent of increasing diversity and equal 
opportunity to bolster inclusion efforts, and many commenters strongly 
supported the expanded protections proposed in the NPRM. Other 
commenters raised various concerns with the cost and burden associated 
with the proposed rule, and questioned whether various proposals were 
feasible for sponsors to undertake and/or comply with. Among the 
primary issues raised by these commenters were:

     Whether the obligations under the new rule conflicted 
with the obligations of certain sponsors under Employee Retirement 
Income Security Act (ERISA) to act as a fiduciary for the training 
plans;
     The application of certain non-discrimination, 
affirmative action, and recordkeeping obligations to certain group 
sponsors, whom commenters believed would not have the ability to 
control personnel actions made and records kept by participating 
employers (proposed Sec. Sec.  30.3-30.12);
     The definition of sex discrimination, which many 
commenters believed should specifically include discrimination on 
the basis of pregnancy, gender identity, and sexual orientation;
     The exemption from AAP obligations for those sponsors 
with fewer than 5 apprentices (proposed Sec.  30.4), which was 
carried over from the existing rule. These comments were split 
between those who wanted the exemption eliminated altogether versus 
those who wanted the exemption expanded to include sponsors with 
larger apprenticeship programs;
     Questions of burden related to the frequency and extent 
of various elements of the AAP (proposed Sec. Sec.  30.4-30.9);
     The burden of requiring sponsors to complete 
utilization analyses for race and sex (proposed Sec. Sec.  30.5-
30.6), given that, while required under the existing rule, many 
sponsors do not have experience undertaking this analysis and have 
in practice relied upon Registration Agencies to do so on their 
behalf. Related, a number of commenters cited a lack of clarity on 
various facets associated with utilization goals (Sec. Sec.  30.5-
30.6), such as defining a relevant recruitment area;
     The feasibility of the new 7% disability goal and 
attendant self-identification requirements (proposed Sec.  30.7 and 
30.11), with some commenters arguing for a lower goal and some a 
higher goal, as well as whether pre-offer self-identification 
inquiries comport with State and Federal laws; and
     The new enforcement measure that would allow 
Registration Agencies to suspend sponsors (proposed Sec.  30.15), 
which some commenters believed lacked due process considerations and 
could be used punitively for political reasons by certain SAAs.

    The active engagement from stakeholders to provide their ideas 
about and comments on the proposed rule resulted in a Final Rule that 
streamlines and simplifies the obligations of sponsors to the extent 
possible while maintaining broad equal employment opportunity 
protections for apprentices.

Overview of the Final Rule

    This Final Rule responds to and incorporates the public input 
received during the open comment period and ACA consultation, as well 
as OA's analysis regarding barriers to entry, underutilization, and 
discrimination in apprenticeship and nontraditional occupations for 
underrepresented groups and best practices to address these challenges. 
The Final Rule includes the same basic structure and many of the same 
proposals that were announced in the NPRM. However, to focus the Final 
Rule more closely on key issues, incorporate public comment, and to 
reduce the burden to the extent possible while maintaining the efficacy 
of nondiscrimination and affirmative action efforts, the Final Rule 
also revises or eliminates some of the NPRM's proposals. A summary of 
the significant changes from the NPRM are as follows:

     Generally providing more time for sponsors--both those 
currently registered and those who may register programs in the 
future--to comply with the new non-discrimination and affirmative 
action obligations;
     Adjusting the workforce analysis so that it is 
conducted at the occupation level, and the utilization analysis at 
the major occupation category level, using a common source of data 
easily accessible to sponsors;
     Clarifying that Registration Agencies will 
significantly assist sponsors in conducting utilization analyses;
     Clarifying that failure to meet utilization goals will 
not, in and of itself, result in the assessment of any enforcement 
actions or sanctions. In so doing, the Final Rule clarifies the 
goals are not quotas, which in fact are legally impermissible, and 
that goals do not displace in any way merit selection principles; 
indeed, the rule specifically prohibits selections made on the basis 
of a protected category;
     Revising the proposed program suspension alternative in 
the enforcement action to address due process concerns raised by 
commenters; and
     Allowing SAAs more time to submit their State EEO plan 
to come into compliance with these regulations.

    These and other changes to the Final Rule, as well as a full 
response to the significant comments received and clarifying guidance 
on how the rule should be interpreted, are set forth in the Section-by-
Section Analysis below.

Section-by-Section Analysis

Description of Part 30

    The description of part 30 in the existing regulations reads 
``Equal Employment Opportunity in Apprenticeship and Training.'' The 
NPRM proposed to delete the words ``and Training'' to clarify that the 
rule applies only to apprenticeship programs registered under the 
National Apprenticeship Act, and not to other training programs. The 
proposed change was also consistent with the recent change of the name 
of the Department's apprenticeship agency to the Office of 
Apprenticeship, from the Bureau of Apprenticeship and Training. We 
received no comments on this proposed change. Accordingly, the 
Department adopts the proposed language describing part 30 in the Final 
Rule.

Purpose, Applicability, and Relationship to Other Laws (Sec.  30.1)

    The existing Sec.  30.1 set forth the scope and purpose in one 
paragraph and laid out the range of activities to which the policies 
apply. The NPRM proposed to revise the title by replacing ``Scope and 
purpose'' with ``Purpose, applicability, and relationship to other 
laws,'' organized the text to fall under these three categories, and 
provided clarifying

[[Page 92036]]

details to enhance readability of the section.
    The Department received only one comment, from a national JATC, 
suggesting that the current text be retained because it contains the 
same information in a more concise manner. We respectfully disagree, 
and believe that the expanded nature of proposed Sec.  30.1 makes it 
helpful to the reader to divide the section's provisions among three 
separate paragraphs: Proposed Sec.  30.1(a) set forth the purpose of 
the rule; proposed Sec.  30.1(b) addressed to whom the rule applies; 
and proposed Sec.  30.1(c) discussed how this regulation relates to 
other laws that may apply to the entities covered by this regulation. 
We therefore adopt the structure of Sec.  30.1 as proposed.
Paragraph 30.1(a): Purpose
    Proposed Sec.  30.1(a) added age (40 or older), genetic 
information, sexual orientation, and disability to the list of bases 
set forth in the rule upon which a sponsor of a registered 
apprenticeship program must not discriminate. The Department received 
numerous comments addressing these proposed changes, which were 
generally supportive, although one commenter cautioned the Department 
not to discount the fact that prohibiting discrimination on the basis 
of sexual orientation may raise implementation questions for sponsors 
and require technical assistance. The Department is prepared to 
undertake such assistance. Among the several commenters that were 
supportive of the expanded protections, many suggested additional 
clarifications.
    Starting with those protected bases in the existing rule, the NPRM 
explained that the Department interprets discrimination on the basis of 
``sex'' to include both pregnancy and gender identity discrimination, 
and clarified this interpretation in the proposed regulatory text at 
Sec.  30.3(c), which provided the contents of sponsors' equal 
opportunity pledge, by explicitly including pregnancy and gender 
identity in a parenthetical following ``sex'' to make this clear. The 
Department received numerous comments advocating that pregnancy and 
gender identity be explicitly listed as separate grounds of 
discrimination, rather than considered under the umbrella of sex 
discrimination. Per the language of relevant authorities and case law, 
both pregnancy and gender identity have been analyzed as forms of sex 
discrimination.\37\ The final rule retains, in the E.O. pledge set 
forth in Sec.  30.3(c), the proposed rule's parenthetical explaining 
that sex discrimination includes discrimination on the basis of gender 
identity and pregnancy. We include the parenthetical explanation in 
this one portion of the regulation because it is the language that will 
be incorporated into registered apprenticeship standards and 
apprenticeship opportunity announcements and thus more visible to those 
the rule protects, but this interpretation applies wherever sex is 
discussed in the regulation. As set forth in the discussion of Sec.  
30.3(a)(2) herein, the Department will look to the legal standards and 
defenses that apply under Title VII and Executive Order 11246, as 
applicable, in determining whether a sponsor has engaged in 
discrimination made unlawful by Sec.  30.3(a)(1), including sex 
discrimination.
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    \37\ Regarding pregnancy, see 42 U.S.C. 2000e(k) (``The terms 
``because of sex'' or ``on the basis of sex'' include, but are not 
limited to, because of or on the basis of pregnancy, childbirth, or 
related medical conditions''); 41 CFR 60-20(a) (stating that under 
Executive Order 11246, sex discrimination includes discrimination on 
the basis of pregnancy, childbirth, or related medical conditions); 
see also EEOC Facts About Pregnancy Discrimination, available at 
https://www.eeoc.gov/eeoc/publications/fs-preg.cfm (last accessed 
Sept 14, 2016). Regarding gender identity, see, e.g., 41 CFR 60-
20.2(a) (stating that, under Executive Order 11246, discrimination 
on the basis of sex includes discrimination on the basis of gender 
identity); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Kastl v. 
Maricopa Cnty. Cmty. Coll. Dist., 325 F. App'x 492 (9th Cir. 2009); 
Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Fabian v. 
Hosp. of Cent. Conn., 2016 WL 1089178, * 14 (D. Conn. Mar. 18, 
2016); Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008). The 
Department is aware of the recent decision in Texas v. U.S., No. 
7:16-cv-00054-O, 2016 WL 4426495 (N.D. Tex. Aug 21, 2016), in which 
the court issued a preliminary injunction enjoining several Federal 
agencies, including the Department, from enforcing certain guidance 
pertaining generally to the issue of transgender access to sex 
segregated facilities. As of when this rule was sent for 
publication, the effect of that injunction on the Department's 
programs is unclear and under consideration by the District Court. 
See Order, Texas v. U.S., No. 7:16-cv-00054-O (N.D. Tex. Oct. 18, 
2016), ECF No. 86 (ordering additional briefing as to whether the 
injunction applies to Title VII and whether and how the injunction 
applies to DOL). The Department will monitor this and other cases.
---------------------------------------------------------------------------

    The NPRM also proposed to include four new grounds to the list of 
protected bases upon which a sponsor must not discriminate: Age (40 or 
older); genetic information; sexual orientation; and disability. The 
Department responds to the comments received on each in turn.
Age (40 or Older)
    Of the few commenters who weighed in on the addition of age 
discrimination, including a national JATC, an advocacy organization, 
and one individual, all supported its inclusion as a prohibited ground 
of discrimination. Among these, a national JATC said its industry's 
programs have been following the Equal Employment Opportunity 
Commission (EEOC) interpretations and/or State law and including age as 
a protected category, and that there are many examples of older workers 
entering the electrical industry through apprenticeship as second 
careers. An individual commenter relayed personal experience of being 
excluded from apprenticeship programs due to age, and thus could 
benefit from this added protection. Accordingly, the Final Rule adopts 
the addition of age as a protected basis, as proposed.
Genetic Information
    With regard to genetic information, those few commenters weighing 
in all supported its addition to the list of prohibited grounds of 
discrimination. The national JATC said joint labor-management 
committees already are prohibited from discriminating against employees 
or applicants because of genetic information, so this will not be a 
change for these apprenticeship programs. Accordingly, the Final Rule 
adopts the addition of genetic information as a protected basis, as 
proposed.
Sexual Orientation
    Numerous commenters, including advocacy organizations, individual 
commenters, a professional association, and a State Workforce Agency 
(SWA), supported the rule's explicit inclusion of sexual orientation on 
the list of protected bases. Several advocacy organizations said 
individuals who identify as lesbian, gay, or bisexual face high levels 
of discrimination and harassment at work based on their sexual 
orientation and this revision is in line with current law and within 
the Department's rulemaking authority.
    Several of the above commenters plus additional advocacy 
organizations urged the Department to make clear that sexual 
orientation discrimination and sex stereotyping discrimination are also 
prohibited forms of sex discrimination. One of these commenters, an 
advocacy organization, stated that, while the legal landscape continues 
to evolve, it is now clear that a division between sexual orientation 
and sex discrimination is unsustainable and providing this additional 
clarification in the final regulation would provide the fullest 
protection for program participants. A national JATC urged some 
caution, noting that the interpretation announced by the EEOC in its 
2015 Baldwin decision \38\ that sexual

[[Page 92037]]

orientation discrimination is per se sex discrimination under Title VII 
was not yet settled law.
---------------------------------------------------------------------------

    \38\ Baldwin v. Foxx, Appeal No. 0120133080, 2015 WL 4397641 
(EEOC July 16, 2015).
---------------------------------------------------------------------------

    The Final Rule adopts the NPRM's proposed inclusion of sexual 
orientation as a stand-alone protected category. As discussed in the 
NPRM, adding sexual orientation as a protected characteristic is 
consistent with both the statutory authority requiring the formulation 
of ``labor standards necessary to safeguard the welfare of 
apprentices,'' \39\ and the Department's purpose and approach since 
part 30 was first established: to promote equality of opportunity in 
registered apprenticeship programs and prevent discrimination in the 
recruitment, selection, employment, and training of apprentices by 
requiring, among other things, that apprentices and applicants for 
registered apprenticeship are selected according to objective and 
specific qualifications relating to job performance. We note further 
that the addition of sexual orientation as a protected basis aligns 
with developments in legal protections over the last two decades. At 
the time of publication, 22 States and the District of Columbia, in 
addition to numerous additional counties and municipalities across the 
country, have laws explicitly prohibiting employment discrimination on 
the basis of sexual orientation in the public and private sectors.\40\ 
Accordingly, the Final Rule retains sexual orientation as its own 
protected basis. We do note, as discussed more fully in later sections, 
that the Final Rule does not require sponsors to collect employee or 
applicant data on sexual orientation, conduct specific outreach, or 
otherwise include sexual orientation in the utilization analyses 
required under AAPs pursuant to Sec.  30.4. This is consistent with the 
Department's Office of Federal Contract Compliance Programs' (OFCCP) 
approach to sexual orientation in its programs.
---------------------------------------------------------------------------

    \39\ 29 U.S.C. 50.
    \40\ https://www.aclu.org/maps/non-discrimination-laws-state-state-information-map (last accessed May 4, 2016).
---------------------------------------------------------------------------

    With regard to commenters' requests that the rule state that sexual 
orientation discrimination is also a per se form of sex discrimination, 
the Department supports this view as a matter of policy. Federal 
agencies have taken an increasing number of actions to ensure that 
lesbian, gay, and bisexual individuals are protected from 
discrimination,\41\ and court decisions have increasingly made clear 
that individuals and couples deserve equal rights regardless of their 
sexual orientation.\42\ The Department further notes that this area of 
title VII law is still developing. In Baldwin, the EEOC--the lead 
Federal agency responsible for administering and enforcing title VII--
offered a legal analysis and review of the title VII case law and its 
evolution, concluding that sexual orientation is inherently a ``sex-
based consideration'' and that discrimination on the basis of sexual 
orientation is therefore prohibited by title VII as one form of sex 
discrimination.\43\ As the EEOC noted in that case, in Oncale v. 
Sundowner Offshore Services, a unanimous Supreme Court stated that 
``statutory prohibitions often go beyond the principal evil [they were 
passed to combat] to cover reasonably comparable evils, and it is 
ultimately the provisions of our laws rather than the principal 
concerns of our legislators by which we are governed.'' \44\ More than 
fifty years after the passage of the Civil Rights Act of 1964, the 
contours of the law governing sex discrimination in the workplace have 
changed significantly. Over the past two decades, an increasing number 
of Federal court cases, building on the Price Waterhouse rationale, 
have found protection under title VII for those asserting 
discrimination claims related to their sexual orientation.\45\ In light 
of this legal framework, and for consistency with the position taken by 
the Department's OFCCP in its recently issued Sex Discrimination 
regulations and the Department of Health and Human Services in its rule 
implementing Section 1557 of the ACA, the Department will interpret sex 
discrimination under this Final Rule to cover treatment of employees or 
applicants adversely based on their sexual orientation where the 
evidence establishes that the discrimination is based on gender 
stereotypes. The Department will continue to monitor the developing law 
on sexual orientation discrimination as sex discrimination, and will 
consider issuing further guidance on this subject as appropriate.
---------------------------------------------------------------------------

    \41\ See, e.g., 80 FR 9989 (Feb. 25, 2015) (DOL amendment of the 
regulatory definition of spouse under the Family and Medical Leave 
Act (FMLA) so that eligible employees in legal same-sex marriages 
are treated the same way for FMLA purposes as employees in opposite-
sex marriages); 45 CFR 155.120(c)(1)(ii) and 156.200(e) (HHS 
regulations barring discrimination on the basis of sexual 
orientation by Health Insurance Marketplaces and issuers offering 
qualified health plans); U.S. Citizenship and Immigration Services, 
Same Sex Marriages, https://www.uscis.gov/family/same-sex-marriages 
(last accessed May 13, 2016) (treating immigration visa petitions 
filed on behalf of same-sex spouses in the same manner as those 
filed on behalf of opposite-sex spouses).
    \42\ For example, in 1996, the Supreme Court struck down an 
amendment to the Colorado constitution that prohibited the State 
government from providing any legal protections to gay, lesbian, and 
bisexual individuals. Romer v. Evans, 517 U.S. 620 (1996). And, just 
last year, the Supreme Court ruled in Obergefell v. Hodges, 135 S. 
Ct. 2584 (2015), that states may not prohibit same-sex couples from 
marrying and must recognize the validity of same-sex couples' 
marriages. See also United States v. Windsor, 133 S. Ct. 2675 (2013) 
(declaring unconstitutional the federal Defense of Marriage Act's 
definition of ``marriage'' as only a legal union between a man and a 
woman); Lawrence v. Texas, 539 U.S. 558 (2003) (declaring 
unconstitutional a state statute criminalizing consensual same-sex 
sexual conduct).
    \43\ Baldwin, 2015 WL 4397641 (July 16, 2015). EEOC relied on 
several analyses to reach this conclusion: a plain reading of the 
term ``sex'' in the statutory language, an associational analysis of 
discrimination based on ``sex,'' and the gender stereotype analysis 
announced in Price Waterhouse v Hopkins, 490 U.S. 228 (1989).
    \44\ Id. at 13 (quoting Oncale v. Sundowner Offshore Servs., 523 
U.S. 75, 79 (1998) (alteration in original) (internal quotation 
marks omitted)).
    \45\ See, e.g., Prowel, 579 F.3d at 291-92 (harassment of a 
plaintiff because of his ``effeminate traits'' and behaviors could 
constitute sufficient evidence that he ``was harassed because he did 
not conform to [the employer's] vision of how a man should look, 
speak, and act--rather than harassment based solely on his sexual 
orientation''); Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 
874-75 (9th Cir. 2001) (coworkers' and supervisors' harassment of a 
gay male because he did not conform to gender norms created a 
hostile work environment in violation of Title VII); Hall v. BNSF 
Ry. Co., No. C13-2160 RSM, 2014 WL 4719007, at *3 (W.D. Wash. 
September 22, 2014) (plaintiff's allegation that ``he (as a male who 
married a male) was treated differently in comparison to his female 
coworkers who also married males'' stated a sex discrimination claim 
under title VII); Terveer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 
2014) (hostile work environment claim stated when plaintiff's 
``orientation as homosexual'' removed him from the employer's 
preconceived definition of male); Heller v. Columbia Edgewater 
Country Club, 195 F. Supp. 2d 1212, 1224 (D. Or. 2002) (``[A] jury 
could find that Cagle repeatedly harassed (and ultimately 
discharged) Heller because Heller did not conform to Cagle's 
stereotype of how a woman ought to behave. Heller is attracted to 
and dates other women, whereas Cagle believes that a woman should be 
attracted to and date only men.''); Centola v. Potter, 183 F. Supp. 
2d 403 (D. Mass. 2002) (``Sexual orientation harassment is often, if 
not always, motivated by a desire to enforce heterosexually defined 
gender norms. In fact, stereotypes about homosexuality are directly 
related to our stereotype about the proper roles of men and 
women.''). Cf. Videckis v. Pepperdine Univ., No. CV 15-00298 DDP 
(JCx), 2015 WL 1735191, at *8 (C.D. Cal. April 16, 2015) (harassment 
and adverse treatment of students because of their sexual 
orientation may state a claim of sex discrimination under title IX, 
because it is a form of sex stereotyping; indeed, ``discrimination 
based on a same-sex relationship could fall under the umbrella of 
sexual discrimination even if such discrimination were not based 
explicitly on gender stereotypes'').
---------------------------------------------------------------------------

Disability
    Multiple commenters supported the Department's proposal to add 
disability to the list of protected categories against which 
apprenticeship programs may not discriminate. An individual commenter 
asserted the need for more apprenticeship programs that are open to 
individuals with disabilities, as

[[Page 92038]]

individuals with disabilities continue to struggle to find and keep 
employment. A number of comments raised specific questions about how 
the proposed disability non-discrimination and affirmative action 
obligations would be implemented. Many of these comments are addressed 
in the discussions of Sec. Sec.  30.7 and 30.11, but we respond to two 
of these concerns here because they implicate the purpose of the 
proposed rule and, to some extent, questions of applicability that are 
germane to Sec.  30.1. Specifically, one commenter cited other federal 
regulations to which they must adhere that prohibit the employment of 
workers who perform work that present dangers to themselves, co-
workers, and the general public. Other commenters implied generally 
that employment of individuals with disabilities was problematic in 
their particular industry due to physical requirements of the position.
    As to the first, nothing in this Final Rule requires sponsors to 
employ individuals who present dangers to themselves or others. The 
rule incorporates the ``direct threat'' defense that is well-
established in disability law jurisprudence, which specifically allows 
an employer to require that an individual be able to perform the 
essential functions of the position held or desired without posing a 
direct threat to the health or safety of the individual or others in 
the workplace. As to the second, to the extent that commenters are 
seeking exemptions from the disability protection in the Final Rule due 
to their particular industry, the Department declines to grant such 
exemptions. Requests to exempt sponsors from disability-related 
obligations in this Final Rule for safety-sensitive positions or for 
physically demanding jobs are based on the fundamentally flawed notion 
that individuals with disabilities as a group are incapable of working 
in these jobs. The Department does not support this belief and will not 
construct an avenue to permit sponsors to avoid recruiting and 
selecting individuals with disabilities for certain apprenticeships. We 
acknowledge that some individuals with certain disabilities--as well as 
some individuals without disabilities--may not be able to perform some 
jobs; this does not countenance broader exclusions from the obligations 
set forth in this rule.\46\ Not all disabilities have physical 
limitations, and not all physical limitations will be relevant to the 
job at hand.
---------------------------------------------------------------------------

    \46\ See Associated Builders & Contractors, Inc. v. Shiu, 30 F. 
Supp. 3d 25, 44 (D.D.C. 2014), aff'd, 773 F.3d 257 (D.C. Cir. 2014), 
cert. denied, 135 S. Ct. 2836 (U.S. June 15, 2015) (``Indeed, many 
disabilities would have little effect on employment by construction 
contractors. For example, `a person with an auditory processing 
disorder would typically need no accommodation to work as [a] 
carpenter. A person with a significant stutter would ordinarily need 
no accommodation to operate machinery.' These examples are not an 
exhaustive list and there are many additional disabilities that, 
with reasonable accommodation, would not preclude an individual from 
engaging in even more construction-industry jobs.'') (internal 
citations omitted).
---------------------------------------------------------------------------

Proposed Additional Grounds
    Several commenters suggested other possible bases for protection 
against discrimination in apprenticeship programs, including caregiving 
status (e.g., parental responsibilities), military service, and 
criminal background. These protected categories are beyond the scope of 
what was proposed in the NPRM, therefore we did not add them to the 
Final Rule. However, we note that discrimination based on some of these 
proposed additional categories may be actionable under already existing 
categories or under other, already applicable, laws.
Paragraph 30.1(b): Applicability
    Proposed Sec.  30.1(b) simplifies the earlier description of the 
scope of the provision by stating clearly that the rule applies ``to 
all sponsors of apprenticeship programs registered with either the U.S. 
Department of Labor or a recognized SAA.'' A number of comments raised 
questions regarding how the obligations of this rule would apply 
differently, if at all, to the different models of sponsors. Some 
sponsors employ the apprentices and thus their control over the terms 
and conditions of employment is more clear, while ``group'' sponsors 
work with groups of employers where apprentices may be hired or placed 
and the various types of employment actions prohibited by this rule may 
be undertaken by these employers, rather than the sponsor.
    Throughout the Section-by-Section analysis below, the Department 
has provided clarification with respect to implementing particular 
requirements depending on the model of sponsorship. In general, per the 
text of Sec.  30.1(b), the Department recognizes the sponsor as the 
entity assuming the equal employment opportunity and affirmative action 
obligations of this part. To the extent that the sponsor has the 
ability to control, or otherwise has input into, any of the various 
employment actions held unlawful by these regulations, its obligations 
under these regulations are clear. In those situations where 
discriminatory actions or other actions in violation of this part are 
taken by participating employers, when the sponsor has knowledge of 
such actions it has an obligation to undertake steps to address the 
violation. Historically, this has been accomplished by written 
agreements entered into between the sponsor and employer setting forth 
``reasonable procedures . . . to ensure that employment opportunity is 
being granted,'' \47\ as well as through the recordkeeping requirements 
obligating the sponsor to keep adequate employment records of its 
apprentices. Were certain categories of sponsors exempted from these 
general obligations, it could render meaningless many portions of these 
regulations and the role of the apprenticeship sponsor to help ensure 
equal employment opportunity that has existed for several decades.
---------------------------------------------------------------------------

    \47\ See existing 29 CFR 30.4(c)(10).
---------------------------------------------------------------------------

Paragraph 30.1(c): Relationship to Other Laws
    Proposed Sec.  30.1(c) clarified that part 30 would not invalidate 
or limit the remedies, rights, and procedures under any Federal law, or 
the law of any State or political subdivision, that provides greater or 
equal protection for individuals under the protected bases. One 
advocacy organization recommended that the Department work with the 
EEOC to ensure that part 30 is consistent with other agency directives, 
including the 2012 EEOC guidance on employer consideration of criminal 
records. To that end, we note, as we did in the NPRM, that these 
regulations generally follow Title VII legal principles in their 
interpretation of the non-discrimination protections in this Final 
Rule.
    An advocacy organization and a State agency commented on the 
possible linkages between this proposed rule and the Workforce 
Innovation and Opportunity Act (WIOA). We agree that the two 
authorities interrelate in important ways to provide broad 
nondiscrimination protection to apprentices. WIOA encourages the use of 
registered apprenticeship and the public workforce system provides an 
opportunity to connect a broad talent pool with the opportunities of 
apprenticeship, as well as to provide resources and supportive services 
to assist in connecting individuals to apprenticeship and supporting 
them through successful completion and career attainment. Section 188 
of WIOA also provides comprehensive nondiscrimination protections. The 
Department will work to ensure that these statutory regimes work in 
tandem to provide broad and consistent worker protection.

[[Page 92039]]

    Proposed Sec.  30.1(c) also recognized as a defense to a charge of 
violation of part 30 that a challenged action is required or 
necessitated by another Federal law or regulation, or that another 
Federal law or regulation prohibits an action that would otherwise be 
required by part 30. A national JATC noted that the proposed regulatory 
text states that ``It may be a defense . . .,'' and instead recommends 
that the Department change the word ``may'' to ``shall'' in the last 
sentence of Sec.  30.1(c). The Department respectfully declines to make 
this change, as whether a defense will succeed is necessarily a fact-
specific inquiry which amending the language to ``shall'' would 
foreclose. Further, this provision is identical to OFCCP's regulations 
implementing section 503 of the Rehabilitation Act of 1973 (section 
503) and the Vietnam Era Veterans Readjustment Assistance Act of 1974 
(VEVRAA) programs,\48\ and the consistency among these DOL programs is 
desirable, especially for those entities that may need to comply with 
both.
---------------------------------------------------------------------------

    \48\ See 41 CFR 60-300.1(c)(2) and 60-741.1(c)(3).
---------------------------------------------------------------------------

    One specific potential conflict of laws clarification sought by 
multiple commenters was the interaction of certain obligations under 
this rule and obligations under the Employee Retirement Income Security 
Act of 1974 (ERISA). Many apprenticeship programs are employee benefit 
plans governed by ERISA. Among other things, ERISA provides that, 
subject to certain exceptions, the assets of an employee benefit plan 
shall never inure to the benefit of any employer and shall be held for 
the exclusive purpose of providing benefits to participants and 
defraying reasonable administrative expenses. In discharging their 
duties under ERISA, plan fiduciaries must act prudently and solely in 
the interests of the plan participants and beneficiaries, and in 
accordance with the documents and instruments governing the plan 
insofar as they are consistent with the provisions of ERISA.\49\ 
Although apprenticeship plans may differ in structure and operations 
from other ERISA plans, the plan fiduciaries must still abide by the 
general fiduciary standards in part 4 of title I of ERISA. The 
Department's Employee Benefits Security Administration (EBSA) is 
responsible for interpreting and enforcing the provisions of part 4 of 
title I of ERISA.
---------------------------------------------------------------------------

    \49\ 29 U.S.C. 1103(c)(1), 1104(a)(1)(A), (B) and (D).
---------------------------------------------------------------------------

    Some commenters asserted that using assets of apprenticeship plans 
to pay for many of the tasks required in the proposed regulations to 
gain or maintain registered status under the National Apprenticeship 
Act would not be consistent with obligations imposed on plan 
fiduciaries under ERISA. These commenters cited guidance EBSA issued in 
2012 concerning the use of apprenticeship plan assets for graduation 
ceremonies and to engage in outreach activities and advertise the 
program to potential apprentices.\50\ The commenters asserted that a 
plan should have a defense against a violation of the proposed 
regulations if the apprenticeship plan's governing board or committee 
determines that it would violate ERISA to expend plan assets to take 
compliance actions required to gain or maintain registered status.
---------------------------------------------------------------------------

    \50\ EBSA Field Assistance Bulletin (FAB) 2012-01 (Apr. 2, 
2012).
---------------------------------------------------------------------------

    EBSA has taken the position that there is a class of activities 
referred to as ``settlor'' functions that relate to the formation, 
design, and termination of plan, rather than the management of the 
plan, that generally are not activities subject to title I of ERISA. 
EBSA has concluded that although expenses attendant to settlor 
activities do not constitute reasonable plan expenses, expenses 
incurred in connection with the implementation of settlor decisions may 
constitute reasonable expenses of the plan.\51\ A plan sponsor's 
decision to register an apprenticeship plan under the National 
Apprenticeship Act is such a settlor decision of plan design. In the 
Department's view, established ERISA guidance on settlor activities 
supports the conclusion that reasonable expenses incurred in 
implementing a decision to be a registered apprenticeship plan would 
generally be payable by the plan to the extent permitted under the 
terms of the plan's governing documents.
---------------------------------------------------------------------------

    \51\ See, e.g., Letter to Carl J. Stoney, Jr. (Advisory Opinion 
2001-01A, Jan. 18, 2001).
---------------------------------------------------------------------------

    The commenters also expressed concern about the application of 
ERISA's fiduciary standards because registered status may result in 
benefits for the apprentice plan's sponsors in addition to the benefits 
provided to the plan's participants. In Advisory Opinion 2001-01, 
dealing with the benefits an employer may secure from sponsoring a tax 
qualified pension plan, EBSA expressed the view that in the case of 
such a plan design decision that confers benefits on both the plan 
sponsor and the plan, a plan fiduciary is not required to take into 
account the benefits conferred on an employer in determining whether 
expenses for implementing the plan design decision constitute 
reasonable expenses of the plan.
    A commenter asserted that ERISA may require plan fiduciaries to 
withdraw from the Department's registration program if the increased 
cost to the plan of compliance with the proposed regulations would be 
greater than the economic benefits to the plan from registered status. 
The commenter cited guidance issued by EBSA concerning investments 
selected because of the collateral economic or social benefits they may 
further in addition to their investment returns to the plan.\52\ 
Registered status is clearly connected to the purpose of an 
apprenticeship plan and provides a range of direct benefits to the plan 
and the apprentices participating in the plan. Accordingly, EBSA does 
not believe its guidance in Interpretive Bulletin 2015-02 applies to 
the decision of whether to maintain a plan as a registered 
apprenticeship plan.
---------------------------------------------------------------------------

    \52\ 29 CFR 2509.2015-02 (Interpretive Bulletin 2015-02).
---------------------------------------------------------------------------

    ERISA requires that plan fiduciaries act prudently and solely in 
the interest of the plan's participants in choosing how to comply with 
the federal regulatory requirements for registered status. Where an 
apprenticeship program is intended to be registered with the 
Department, the fiduciaries may treat the reasonable costs of 
compliance with registration regulations as appropriate means of 
carrying out the plan's mission of training workers.
    Some commenters requested clarification of ERISA's impact on the 
proposal's requirement that a registered apprenticeship plan establish 
linkage agreements enlisting the assistance and support of pre-
apprenticeship programs, community-based organizations, and advocacy 
organizations in recruiting qualified individuals for apprenticeship, 
and in developing pre-apprenticeship programs. These commenters noted 
that participants in pre-apprenticeship programs are not participants 
in the apprenticeship plan and pointed out that ERISA plan fiduciaries 
must discharge their duties for the exclusive purpose of providing 
benefits to the plan participants and defraying reasonable plan 
administrative expenses. In the Department's view, where plan 
fiduciaries prudently determine that supporting quality pre-
apprenticeship programs and other workforce pipeline resources are 
necessary to maintain the plan's registration, or are otherwise 
appropriate and helpful to carrying out the purposes for which the plan 
is established or maintained, assets of the plan may be used to defray 
the reasonable expenses of such support. Such advantages could include, 
among other things, more efficient outreach

[[Page 92040]]

and recruitment, and broadening the base of qualified and diverse 
applicants. For more information on what qualifies as a quality pre-
apprenticeship program, see OA's Training and Employment Notice 13-12 
(TEN 13-12), dated November 30, 2012.
    Finally, one commenter said it is unclear why these defenses are 
limited to actions required by another Federal law or regulation, and 
recommended that these defenses be expanded to include actions required 
or prohibited by any applicable State law or regulation. This commenter 
did not specifically identify a provision of State law that would be in 
conflict with these regulations, and we would decline to introduce any 
such broad defense contrary to general principles of preemption.

Definitions (Sec.  30.2)

    With regard to definitions included in the NPRM, we did not receive 
comments on the definitions for ``administrator,'' ``apprentice,'' 
``apprenticeship program,'' ``Department,'' ``EEO,'' ``electronic 
media,'' ``employer,'' ``genetic information,'' ``journeyworker,'' 
``major life activities,'' ``Office of Apprenticeship,'' ``physical or 
mental impairments,'' ``race,'' ``reasonable accommodation,'' and 
``Registration Agency.'' We made no changes to the proposed definitions 
for these terms. The others for which comments were received are 
discussed below.
``Apprenticeship Committee''
    This proposed definition comes from part 29, where this term is 
also used. An SWA suggested that the definition of ``apprenticeship 
committee'' should be revised to encompass group sponsor structures as 
well as individual sponsor structures, and commented that the language 
throughout the rule is geared towards an individual sponsor structure 
and not inclusive of group sponsor structures. The Department notes 
that this definition is identical to the definition contained in part 
29. As worded, it is intended to apply to group sponsors as well as 
individual sponsors. Accordingly, the Final Rule retains the definition 
as proposed.
``Direct Threat''
    This term was added because the proposed rule included disability 
among the list of protected bases covered by part 30, and the ``direct 
threat'' defense is well-established under the Americans with 
Disabilities Act (ADA), as amended, and other disability laws. A 
national JATC expressed concern that the proposed definition would 
require apprenticeship programs to hire medical professionals to 
provide ``reasonable medical judgement'' because this proposed 
definition states that the process for determining whether an 
individual poses a direct threat is based on ``reasonable medical 
judgment.'' The commenter warned that this would pose a significant 
financial burden for sponsors, and said that the definition should 
either be changed or removed. As discussed above, the proposed 
definition for this term is taken directly from title I of the ADA, as 
amended, and from the EEOC implementing regulations. The Department 
intends that this proposed term will have the same meaning as that set 
forth in the Americans with Disabilities Act Amendments Act of 2008 
(ADAAA) and implemented by the EEOC in 29 CFR part 1630. Sponsors and 
participating employers subject to the ADA, as amended, therefore are 
already required to comply with this provision under that authority. 
Any departure would create an unwanted discrepancy between federal 
disability laws. Further, we note that hiring medical professionals to 
provide ``reasonable medical judgment'' is not required by this rule 
(nor the ADA, as amended). EEOC guidance provides that determining 
whether a ``direct threat'' exists is an individual assessment 
``considering the most current medical knowledge and/or the best 
available objective evidence.'' \53\ (Emphasis added.) The Department 
interprets this rule consistently with that guidance. Even if medical 
knowledge were used, it often can be obtained from the individual's own 
physician, rather than an in-house physician hired for such purposes. 
Accordingly, the Final Rule retains the definition as proposed in the 
NPRM.
---------------------------------------------------------------------------

    \53\ EEOC Enforcement Guidance on the Americans with 
Disabilities Act and Psychiatric Disabilities, available at https://www.eeoc.gov/policy/docs/psych.html (last accessed May 18, 2016).
---------------------------------------------------------------------------

``Disability''
    This term was added because the proposed rule included disability 
among the list of protected bases covered by part 30. One commenter 
explicitly supported this definition as consistent with other Federal 
laws, most notably the ADA and ADAAA. One commenter requested 
clarification of the term ``disabled individual,'' and suggested that 
the definition and goals should differentiate between individuals with 
learning disabilities and other types of disabilities. Another 
commenter, in asking for clarification about the definition of 
disability, expressed concern that the construction industry is 
physically demanding on both body and mind, and that its program asks 
applicants if they can perform the work required in the industry and if 
they are physically able regardless of any disabilities. Disability law 
does not distinguish between ``types'' of disabilities, but rather 
whether an individual has, or is regarded as having, an impairment that 
substantially limits one or more major life activities, or has a record 
of such impairment. We therefore decline to separate out particular 
``types'' of disabilities for different treatment. With regard to 
selections in particular industries, again, disability law does not 
differentiate. It is a well-established tenet of disability law that an 
individual must be qualified to perform the essential functions of the 
job, with or without reasonable accommodation, in order to be 
protected. The proposed definition (as well as the selection provisions 
in Sec.  30.10 herein) reflects that, and we adopt it as proposed.
    Regarding the phrase ``a record of such an impairment'' in the 
proposed definition of disability, one commenter asked for 
clarification as to what type of record would be acceptable 
verification of an individual having a documented disability. Again, 
this language was intended to mirror identical language in the ADA, 
etc., and should be interpreted in the same manner as it is in the ADA. 
Generally, the phrase ``record of'' does not require a written record, 
but rather prohibits discrimination against someone because they are 
known to have had a disability, for instance, a person who has 
recovered from cancer or mental illness.
    As discussed above, the proposed definition for this term is taken 
directly from title I of the ADA, as amended, and from the EEOC 
implementing regulations. The Department intends that this proposed 
term will have the same meaning as what was set forth in the ADAAA and 
implemented by the EEOC in 29 CFR part 1630.
``Employer''
    The NPRM proposed slight modifications to the definition of 
``employer'' in part 30 to conform to the definition of the term in 
part 29, where this term is also used. We did not intend this 
alteration to change how the term is interpreted.
    Two national unions expressed concern that, by adopting the 
definitions of ``sponsor'' and ``employer'' in 29 CFR part 29, the 
proposed rule would allow for a sponsor to conduct its workforce 
analyses of the

[[Page 92041]]

relevant incumbent workforce (required in proposed Sec.  30.5(b)) 
without accounting for ``all occupational titles in its registered 
apprenticeship program,'' should that sponsor include subcontractors or 
other entities owned or controlled by the sponsor in its apprenticeship 
program. In this way, they assert that a sponsor could otherwise 
delegate to an employer its obligations under the rule, thus avoiding 
enforcement and broad equal employment opportunity for apprentices. It 
proposed that the Department amend both the definition of ``sponsor'' 
and ``employer'' to include subcontractors and other entities owned and 
controlled by the sponsor or employer. This latter concern was 
addressed in the discussion of Sec.  30.1, which clarified that the 
rule's obligations apply broadly to all sponsors, and will require 
partnership and information-sharing with employers to effectuate their 
non-discrimination and affirmative action obligations. The obligations 
under Sec.  30.5(b) will be discussed in that part of the Section-by-
Section analysis. As the revised definition was offered solely to 
conform with the existing definition of ``employer'' in part 29, we 
retain it in the Final Rule as proposed.
``Ethnicity''
    An SWA said that the term ``Latino'' should be used instead of 
``Hispanic'' because the term ``Latino'' is broader and includes 
``Hispanic'' groups, but the term ``Hispanic'' does not include all 
``Latino'' groups. Additionally, the commenter said that ``Latino'' 
status should not be limited to ``Spanish culture or origin'' because 
some groups do not claim a European cultural or ancestral background, 
and not all groups speak Spanish as a first language (e.g., 
Brazilians). In response to this comment, the Department notes that the 
proposed definition is the same as that used under the Office of 
Management and Budget's standards for the classification of Federal 
data on race and ethnicity,\54\ as well as the definition in the EEOC's 
EEO-1 reporting requirements. For consistency with other Federal data 
collection requirements, we retain the definition as proposed.
---------------------------------------------------------------------------

    \54\ Available at http://www.whitehouse.gov/omb/fedreg_1997standards/ (last accessed June 3, 2016).
---------------------------------------------------------------------------

``Pre-Apprenticeship Program''
    The proposed rule included a definition of ``pre-apprenticeship 
program'' because the existing rule refers to such programs, but does 
not define this term. The proposed definition, drawn from a Training 
and Employment Notice regarding pre-apprenticeship,\55\ was intended to 
provide clarity on what constituted and/or qualified as a pre-
apprenticeship program. It is worth noting that this Final Rule does 
not specifically require sponsors to develop their own pre-
apprenticeship programs, but rather includes requirements that sponsors 
partner with appropriate entities, such as pre-apprenticeship programs, 
as part of an outreach and recruitment strategy to address 
underutilization and impediments to equal employment opportunity. The 
Department received numerous comments addressing this proposed 
definition, which were generally supportive, but which suggested 
improvements.
---------------------------------------------------------------------------

    \55\ Office of Apprenticeship Training and Employment Notice 13-
12 (TEN 13-12), dated November 30, 2012.
---------------------------------------------------------------------------

    One commenter expressed concern that the proposed definition of 
``pre-apprenticeship program'' does not capture the full scope and 
reach of high-quality pre-apprenticeship programs, and suggested that 
the definition of a pre-apprenticeship program should not be limited to 
programs that assist individuals in meeting the minimum qualifications 
for selection into an apprenticeship program, but should be expanded to 
include programs that provide training and education to individuals who 
meet the minimum requirements for selection into an apprenticeship 
program but seek additional training in order to remain competitive 
with other applicants. While this commenter identifies laudable 
objectives that many programs may accomplish, the Department's primary 
focus for pre-apprenticeship programs is to enable participants to 
obtain minimum requirements for selection into apprenticeship programs 
to grow opportunities for those individuals. Nothing in the rule 
prevents sponsors and other entities from designing or linking with 
additional pre-apprenticeship programs that serve the ends noted by the 
commenter. The Department is, however, revising the definition to align 
with TEN 13-12, which addresses pre-apprenticeship programs. Among 
other things, TEN 13-12 provides that pre-apprenticeship programs 
maintain a documented partnership with at least one Registered 
Apprenticeship program, to help ensure that the pre-apprenticeship 
programs have the relationships in place to support the future success 
of its participants.
    Two national unions commented that the Department should also 
clarify whether Job Corps programs satisfy the definition of pre-
apprenticeship. As indicated in the NPRM, many Job Corps programs have 
been used and can serve as pre-apprenticeship programs. While not all 
Job Corps programs are pre-apprenticeship programs, those Job Corps 
programs consistent with the requirements of TEN 13-12--specifically, 
those focusing on preparing individuals for entrance into and success 
in a registered apprenticeship program, and which maintain a 
partnership with a Registered Apprenticeship program--would qualify as 
a pre-apprenticeship program.
    A national JATC asked for clarification about the intent of the 
requirement of collaboration in the definition of ``pre-apprenticeship 
program.'' The JATC commented that if the intent is for a minimum of 
two different types of entities to collaborate on a program, then two 
employers or a single-employer group or a local union could not operate 
a pre-apprenticeship program on its own. The JATC suggested that the 
Department should expressly recognize that a joint-labor management 
committee is an example of employer and union collaboration, and thus 
could operate a pre-apprenticeship program. The Department notes that 
the intent is to link the pre-apprenticeship program with an 
apprenticeship program. This definition is not intended to require a 
minimum of two entities given the different ways in which such a link 
could occur.
    Several commenters suggested broadly that the proposed definition 
of ``pre-apprenticeship program'' should be in alignment with the 
definition as written in the Department's TEN 13-12. Commenters 
encouraged the Department to adopt a definition of ``pre-apprenticeship 
program'' that includes elements that are essential for successful 
linkage of a pre-apprenticeship program to an apprenticeship program, 
and/or are otherwise described in TEN 13-12. The definition for ``pre-
apprenticeship'' in the proposed rule was specifically drafted to be 
consistent with the TEN 13-12, including with its description of the 
elements described therein, and the Department does not view any change 
to the definition to be necessary. Sponsors should follow TEN 13-12 and 
other relevant guidance in their interpretation of the definition 
provided in the rule.
    Numerous commenters recommended that the Department's definition in 
proposed Sec.  30.2 should otherwise be more expansive in specifically 
addressing: Barriers unique to women, people of color, and individuals 
with

[[Page 92042]]

disabilities; standards for EEO/affirmative action in technical 
instruction and selection procedures; and the length of tenure or 
manner of payment expected in pre-apprenticeship programs. Again, while 
one aim of pre-apprenticeship programs is to reach groups that are 
traditionally underrepresented in apprenticeships, and the Final Rule 
includes multiple ways in which that may happen (such as in the 
discussion of Sec.  30.8), we believe that sort of elaboration is best 
accomplished in those sections and in guidance such as TEN 13-12, 
rather than in the definitions section of the regulation.
    The last sentence of the proposed definition included the optional 
provision of supportive services, such as transportation, child care, 
and income support, to assist participants in the successful completion 
of the pre-apprenticeship program. Several comments underscored the 
need for resources, including from the Federal government, in order to 
provide support services. We recognize the resources required to 
provide such supportive services, which is a primary reason why the 
provision of such services was not mandated in the definition. The 
Department has generally expanded the role of apprenticeship and 
provided opportunities for supportive resources under its WIOA program. 
Additionally, many other Federal agencies offer some level of support 
for Registered Apprenticeships.\56\ However, because these services are 
not a mandated part of pre-apprenticeship programs, and because they 
are not limited to pre-apprenticeship programs but could apply to 
apprenticeship programs generally, the Final Rule deletes the sentence 
on supportive services to avoid confusion.
---------------------------------------------------------------------------

    \56\ Federal Resources Playbook for Registered Apprenticeship, 
https://www.doleta.gov/oa/federalresources/playbook.pdf.
---------------------------------------------------------------------------

    A national JATC recommended that the Department provide guidance 
that would reduce certain legal risks in operating pre-apprenticeship 
programs to increase diversity and mitigate claims of reverse 
discrimination. The JATC suggested that the Department could 
significantly advance its efforts by providing final regulations that: 
(1) Permit apprenticeship programs to include in their standards, 
subject to Department approval, direct interview or direct entry from 
pre-apprenticeship programs specifically designed for one or more 
underrepresented groups and not others; (2) ensure that such options, 
once adopted, would not violate part 30 rights for any other group; and 
(3) provide that it is the Department's interpretation that such 
approved methods do not violate title VII or other Federal civil rights 
laws and have the same level of protection against claims as if 
required under Federal law.
    Providing guidance on the legality of direct entry programs 
necessarily requires fact-specific questions as to how, and in what 
context, that system is administered. Accordingly, we cannot provide 
broad guidance on the second and third points above. As to the first, 
generally speaking, an apprenticeship program may include in its 
standards, with Departmental approval, a direct entry program targeted 
toward a specific underrepresented group that is designed to address 
underutilization. Indeed, such measures are specifically countenanced 
by Sec.  30.8, referenced below. Beyond that, any such guidance 
necessarily must proceed on a case-by-case basis. For instance, if a 
single-employer sponsor draws its apprenticeship pool entirely from a 
direct entry program that is specifically designed to target one racial 
minority group, resulting in an apprenticeship pool that consists 
entirely of members from that group, such a process could result in 
underutilization of another minority group. Such a program, used in 
concert with other selection mechanisms resulting in a less homogenous 
apprenticeship pool, may not. The Department is available to provide 
guidance, in consultation with its Office of the Solicitor, to sponsors 
with questions about specific scenarios involving direct entry.
    Finally, one comment raised the question of further guidance and 
suggested updating TEN 13-12. One commenter suggested that the 
Department issue an update to TEN 13-12 that incorporates references to 
WIOA instead of the Workforce Investment Act of 1998 (WIA), and others 
suggested that the guidance be updated to link quality pre-
apprenticeship programs with industry or sector partnerships as well as 
apprenticeship-related provisions in WIOA's implementing regulations. 
The Department updates its guidance periodically with a particular view 
towards ensuring that references to other complementary legislative 
schemes are correct, and will do so in this circumstance as well.
    In conclusion, the definition is retained in the Final Rule as 
proposed.
``Qualified Applicant or Apprentice''
    The NPRM proposed to add this definition because of the addition of 
disability to the list of protected bases covered by part 30. The only 
comments received related to this proposed definition posed questions 
about how ``qualified applicants'' related to the requirement in 
proposed Sec.  30.5(c)(2) that utilization analyses take into account 
the availability of those who have the ``present or potential capacity 
for apprenticeship.'' Neither of these commenters raised issues with 
the wording of this definition, which is taken directly from title I of 
the ADA, as amended and from the EEOC implementing regulations. The 
concerns raised by these commenters are addressed in the analysis of 
the comments received relating to Sec.  30.5(c). The definition is 
incorporated into the Final Rule as proposed.
``Selection Procedure''
    The NPRM proposed a definition of ``selection procedure'' that was 
consistent with the definition found in the Uniform Guidelines of 
Employee Selection Procedures (UGESP) at 41 CFR part 60-3,\57\ because 
program sponsors are already required to comply with those regulations 
under the current part 30 and should be familiar with that definition. 
Commenters sought a few minor changes to the definition, but the 
Department declines to accept these changes in order to maintain 
consistency with the term as used in UGESP, which has applied to 
sponsors under these regulations for decades. Subsequent sections of 
this analysis, particularly the discussion of Sec.  30.10, address some 
of the finer questions commenters raised about selection procedures. If 
further questions persist after publication of the rule, the Department 
will certainly consider further guidance on acceptable selection 
procedures.
---------------------------------------------------------------------------

    \57\ The intent behind UGESP, originally adopted in 1978 by 
several Federal agencies, including the Department, was to provide a 
uniform set of principles on the question of the use of tests and 
other selection procedures in making employment decisions. This 
uniform set of principles is designed to assist employers, labor 
organizations, employment agencies, and others to comply with 
Federal nondiscrimination requirements. UGESP requires that 
selection procedures which are found to result in an adverse impact 
on employment opportunities of members of any race, sex, or ethnic 
group be validated to show that they are correlated with, 
representative of, or characteristic of successful performance of 
the job in question.
---------------------------------------------------------------------------

``Undue Hardship''
    This proposed definition was added because of the proposed addition 
of disability to the list of protected bases covered by part 30. The 
concept of ``undue hardship'' is a well-established one under the ADA, 
which provides that employers need not provide certain accommodations 
if they will cause an undue hardship to the employer. A national JATC 
suggested that the

[[Page 92043]]

requirements for documentation of undue hardship should be reduced 
because they add the possibility of a significant administrative burden 
on a registered apprenticeship program. As discussed above, the 
proposed definition for this term is taken directly from title I of the 
ADA, as amended, and from the EEOC implementing regulations. The 
Department intends that this proposed term will have the same meaning 
as what was set forth in the ADAAA and implemented by the EEOC in 29 
CFR part 1630. For the sake of consistency, the Department has 
determined that the requirements should remain the same.
    An SWA requested clarification on the specific formula and 
threshold a sponsor would need to reach to meet the eligibility 
requirements for undue hardship. The EEOC has published guidance 
discussing in detail the various factors that should be considered in 
making an ``undue hardship'' determination,\58\ but these factors focus 
broadly on the cost of the accommodation weighed against the financial 
resources of the employer, and thus are necessarily fact-specific. If 
sponsors have questions about undue hardship in particular 
circumstances, the Department can provide technical assistance.
---------------------------------------------------------------------------

    \58\ See EEOC Enforcement Guidance: Reasonable Accommodation and 
Undue Hardship Under the Americans with Disabilities Act, available 
at https://www.eeoc.gov/policy/docs/accommodation.html#undue (last 
accessed May 5, 2016).
---------------------------------------------------------------------------

    Beyond these definitions proposed in the regulations, several 
commenters proposed additional definitions that should be included in 
the regulations. These are discussed in turn below.
``Industry'' and ``Relevant Labor Pools''
    A JATC expressed concern that the proposed rule did not provide a 
definition of the term ``industry,'' and urged the Department to define 
the term (as used in proposed Sec.  30.5(b)) more narrowly to avoid 
comparisons of occupations that require different levels of skill, 
education, and technical expertise. The commenter also asked the 
Department to define the term ``relevant labor pools'' (in proposed 
Sec.  30.4(a)(2)) to clarify the relationship between the relevant 
recruitment area and the relevant labor pools. These terms are further 
discussed in the relevant sections specified above, and so we decline 
to define the term here. We note that the use of ``industry'' as the 
grouping for analyses under the proposed Sec.  30.5 was not carried 
over into the Final Rule, and thus there is no need to define it.
``Self-Identification as an Individual With a Disability''
    Another national JATC recommended that the Department add language 
to Sec.  30.2 that defines the phrase ``self-identification as an 
individual with a disability,'' which is used in proposed Sec.  30.11. 
The Department declines to define this compound phrase, the meaning of 
which can be understood in the context of proposed Sec.  30.11.
``Sex''
    Many advocacy groups, a professional association, and a national 
union, urged the Department to include a definition of ``sex'' in Sec.  
30.2 clarifying that discrimination on the basis of childbirth and 
medical conditions related to pregnancy or childbirth are prohibited 
forms of sex discrimination. This Department declines to address this 
concern by adding a definition, but notes that the issue is addressed 
in the discussion of Sec. Sec.  30.1 and 30.3(c) herein.

Equal Opportunity Standards Applicable to All Sponsors (Sec.  30.3)

    The existing Sec.  30.3 was divided into six paragraphs and set 
forth the equal opportunity standards for registered apprenticeship 
programs: a sponsor's obligation not to discriminate on the basis of 
race, color, religion, national origin, and sex and to engage in 
affirmative action (existing paragraph (a)); and a sponsor's obligation 
to incorporate an equal opportunity pledge into its apprenticeship 
program standards (existing paragraph (b)). The remaining four 
paragraphs of existing Sec.  30.3 set the effective date of the part 30 
regulations for programs presently registered (existing paragraph (c)), 
the registration requirements for sponsors seeking registration of new 
programs (existing paragraph (d)); and the bases for exemption from the 
requirement to develop an AAP (existing paragraphs (e) and (f)).
    Proposed Sec.  30.3 reorganized this section by focusing upon the 
equal opportunity standards in paragraphs (a) and (b) and removed 
paragraphs (c) through (f), the substance of which was incorporated 
into other parts of the rule for the sake of clarity. Proposed Sec.  
30.3(a) and (b) built upon the equal employment opportunity standards 
that are contained in current Sec.  30.3(a).
Paragraph 30.3(a)(1): Discrimination Prohibited
    Proposed Sec.  30.3(a)(1) set forth the general prohibition against 
discrimination on the bases of race, color, religion, national origin, 
and sex--those listed in the current part 30--and added prohibitions 
against discrimination on the bases of age (40 or older), genetic 
information, sexual orientation, and disability. Proposed Sec.  
30.3(a)(1) still specified the same general range of aspects of 
apprenticeship programs that are covered, but reorganized the text, and 
reworded it to follow the framework used in other equal opportunity 
laws. This proposed paragraph received several comments.
    Several commenters urged the Department to clarify throughout the 
text of part 30 that the regulations prohibit discrimination on the 
basis of pregnancy and gender identity as separate categories. As 
discussed in the analysis of Sec.  30.1, the proposed rule modified the 
EEO pledge that a sponsor must include in its Standards of 
Apprenticeship, codified at Sec.  30.3(c) herein, to contain a 
parenthetical after the listing of ``sex'' as a protected basis 
explicitly including discrimination on the basis of gender identity and 
pregnancy as forms of sex discrimination. This language is retained in 
the final rule.
    Proposed paragraph (a)(1) also listed all the various employment 
actions that, if undertaken on the basis of a protected category, would 
be unlawful. One broader comment raised by an SWA, addressed in part in 
the discussion of Sec.  30.1 above, was that some of the employment 
actions listed in paragraph (a)(1) were those undertaken by the 
employer, not the sponsor, in certain group sponsor structures. For 
instance, the commenter stated that group sponsors do not ``hire'' 
apprentices; rather, they place them with an employer. The commenter 
recommended that this provision include language for all sponsor types. 
We decline to change the regulatory text accordingly, as we believe it 
can apply broadly with the following guidance. In the apprenticeship 
model where the sponsor and the employer are the same entity or 
otherwise under the control of a common management structure, the 
prohibited employment actions listed herein are ones that can apply 
specifically to the sponsor. In the model where the sponsor and 
employer are different entities, such as the group sponsor structure 
identified by the commenter, we appreciate that the sponsor may not 
have direct control over certain of the employment decisions listed. 
For instance, a participating employer may discipline an apprentice or 
make a job assignment independent of the participating sponsor. 
However, as discussed in the analysis of Sec.  30.1, sponsors and 
employers in such apprenticeship models have historically entered into

[[Page 92044]]

written agreements setting forth ``reasonable procedures . . . to 
ensure that employment opportunity is being granted.'' \59\ To the 
extent that a participating employer enters into such an agreement and 
engages in discrimination unlawful under this part, or even absent such 
an agreement the sponsor otherwise learns of such discrimination 
(either through complaints or its recordkeeping obligations under part 
30), the Department would expect that the sponsor take action to 
address the discrimination and, if unremedied, take steps to terminate 
its relationship with the discriminating employer. While this certainly 
requires a degree of oversight on the part of the sponsor, it is 
consistent with past practice in group sponsorships and is necessary so 
as to prevent expansive loopholes that could allow EEO elements of 
apprenticeship programs to go entirely unregulated, frustrating the 
purpose of this part.
---------------------------------------------------------------------------

    \59\ See existing 29 CFR 30.4(c)(10).
---------------------------------------------------------------------------

    Other comments were raised as to the specific employment actions 
delineated in paragraph (a)(1). One commenter noted that the term 
``placement'' is more germane to a sponsor than the term ``hiring'' may 
be. Accordingly, we have revised the Final Rule to include 
``placement'' in addition to ``hiring,'' to the extent that either is 
more applicable to a given sponsor. The same commenter also asked the 
Department to clarify the definition of ``award of tenure'' as used in 
this section. Upon review, this term does not appear to correspond to 
aspects of apprenticeship programs. Accordingly, this term is not 
included in the Final Rule.
    Many commenters expressed the need for sponsors to ensure an 
equitable schedule of rotation, assignments, training, and mentoring to 
assure that all apprentices achieve core skill competencies. The 
Department notes that ``rotation among work processes,'' ``hours of 
training,'' and ``job assignments'' are already included in Sec.  
30.3(a)(1)(iii), (vii) and (viii), while a lack of ``mentoring'' on the 
basis of a protected category could fall under the proposed Sec.  
30.3(a)(1)(x), which covers ``any other benefit, term, condition, or 
privilege associated with apprenticeship,'' depending on the specific 
facts. Similarly, other advocacy organizations recommended that the 
Department add ``work assignments and training opportunities'' to the 
list of activities for which a sponsor cannot discriminate to ensure 
that these opportunities are afforded to all apprentices equally. The 
Department agrees that both of these terms describe possible adverse 
employment actions, but believes that the proposed Sec.  30.3(a)(1)(x) 
covers these terms. Finally, one commenter suggested adding a paragraph 
(a)(1)(xi) that would include supervision by a trained and skilled 
journeyworker, where ``trained'' means familiar with EEO concepts and 
with a passing knowledge of adult learning theory. This suggestion is 
out of place in this section, which lists types of adverse employment 
actions that could be unlawful if made on the basis of a protected 
category.
Paragraph 30.3(a)(2): Discrimination Standards and Defenses
    Proposed Sec.  30.3(a)(2) laid out the discrimination standards and 
defenses in a framework similar to that used in other equal opportunity 
laws. Proposed subparagraph (a)(2)(i) discussed standards and defenses 
for race, color, religion, national origin, sex, or sexual orientation; 
subparagraph (a)(2)(ii) discussed disability; subparagraph (a)(2)(iii) 
discussed age; and subparagraph (a)(2)(iv) discussed genetic 
information (numbered incorrectly in the NPRM as (a)(2)(iii)).
    Numerous advocacy organizations urged the Department to clarify in 
Sec.  30.3(a)(2) that, with respect to pregnancy, the Registration 
Agency will apply the same legal standards and defenses as those 
applied under the Pregnancy Discrimination Act (PDA) and the ADAAA, as 
well as EEOC implementing regulations and enforcement guidance when 
employers make or are obligated to make accommodations for a 
substantial percentage of others similar in their ability to work. This 
was the intent of the proposal and is the intent of the Final Rule, and 
the regulatory language should be interpreted consistent with this 
intent. Further, these commenters requested that the Department address 
the need to provide reasonable accommodations for pregnancy and related 
conditions, not only to the extent required to avoid discrimination on 
the basis of pregnancy under the Supreme Court's recent decision in 
Young v. United Parcel Service, Inc.,\60\ but also as an affirmative 
measure aimed at breaking down barriers to women's acceptance and 
advancement in apprenticeship programs. The NPRM explicitly described 
its intent to follow all relevant PDA and ADA/ADAAA case law, including 
Young, in interpreting nondiscrimination obligations. With respect to 
the request to require any additional affirmative action to address and 
provide reasonable accommodations on the basis of pregnancy, we decline 
to specifically include such a requirement as beyond the scope of what 
was proposed, but encourage sponsors to take steps to break down the 
barriers raised by this comment.\61\
---------------------------------------------------------------------------

    \60\ 135 S. Ct. 1338 (2015).
    \61\ We note that states may have pregnancy discrimination laws 
detailing accommodation obligations beyond those in this this Final 
Rule; if such laws apply to sponsors, they will need to take 
additional steps to comply with these laws.
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    An SWA requested clarification regarding the term ``apply the same 
standards and defense'' and asked how it would apply those standards to 
an individual sponsor. This subparagraph is intended to help 
stakeholders identify the corresponding source of legal standard for 
each prohibited ground of discrimination. The information included 
after each explanation is intended to be helpful as an initial 
reference but was not intended to be an exhaustive explanation. The 
Department is available to provide technical assistance, in conjunction 
with its Office of the Solicitor, to answer questions that arise as to 
what standards or defenses might apply to specific situations.
    A commenter expressed concern that the proposed language 
``determining whether a sponsor has engaged in an unlawful employment 
practice'' is not inclusive of a group sponsor structure because group 
sponsors are not employers and do not employ apprentices. As set forth 
in the analysis of Sec.  30.1 and earlier in this section, we believe 
the non-discrimination provisions can apply to the range of sponsor 
models, allowing that in a group sponsorship model, certain specific 
employment actions may be undertaken by the employer, not the sponsor, 
and thus actionable against the employer under various other civil 
rights laws. However, the group sponsor, upon knowledge of such 
violation, retains an obligation to address the violating activity with 
the employer and, if continuing or otherwise unremedied, take steps to 
remove the employer from participating in the apprenticeship program it 
sponsors. For greater clarity beyond the language ``unlawful employment 
practice,'' however, the Final Rule revises the text at the end of this 
section to read ``unlawful practice under Sec.  30.3(a)(1),'' the 
section which enumerates the types of actions that, if taken due to a 
protected basis, would constitute unlawful discrimination.
    The Final Rule contains one additional clarifying edit to Sec.  
30.3(a)(2)(i), including Executive Order 11246 as a source for the

[[Page 92045]]

standards and defenses that will apply to the protected bases listed 
under that paragraph. This addition was made because Executive Order 
11246, like this Final Rule but unlike title VII, contains explicit 
protections from discrimination on the basis of sexual orientation and 
gender identity, and thus the Department will look to interpretations 
of the Executive Order when evaluating claims under those bases.
Paragraph 30.3(b): General Duty To Engage in Affirmative Action
    Proposed Sec.  30.3(b) strengthened and further detailed the 
affirmative action obligation contained in the existing Sec.  
30.3(a)(3), requiring that all sponsors, regardless of size, take a 
discrete series of affirmative steps to provide equal opportunity in 
apprenticeship.
    Before turning to each of the specific requirements proposed in 
Sec.  30.3(b), we address some general comments on this paragraph. An 
SWA expressed concern that the NPRM confounded the roles of sponsor and 
employer, asserting that some of the proposed requirements in Sec.  
30.3(b) do not make sense when considered from the perspective of a 
sponsor that does not have a relevant workforce but merely coordinates 
multiple employers in a group program (e.g., proposed requirements 
relating to training and dissemination of EEO policy). This commenter 
suggested that the rule should clarify that the sponsor, where 
different from the employer, must share the relevant affirmative action 
responsibilities and requested concrete guidance on how the sponsor 
should ensure employer compliance. The Department recognizes that there 
is a difference between the roles of sponsor and employer; it also 
recognizes that under the existing rules, many of these obligations are 
among the listed outreach and recruitment efforts of which sponsors 
must undertake ``a significant number.'' \62\ To be sure, complying 
with many of these obligations would be facilitated by involvement of 
participating employers to develop procedures to ensure equal 
opportunity is being granted; this is precisely the arrangement that 
has historically been created by sponsor-employer apprenticeship 
agreements that we expect to continue.
---------------------------------------------------------------------------

    \62\ See existing 29 CFR 30.4(c).
---------------------------------------------------------------------------

Paragraph 30.3(b)(1): Assignment of Responsibility
    Proposed Sec.  30.3(b)(1) requires sponsors to designate an 
individual to be responsible and accountable for overseeing the 
sponsor's commitment to equal opportunity in apprenticeship. A national 
JATC recommended that the Department clarify that it is the sponsor, 
whether employer or JATC, that bears responsibility for all aspects of 
meeting the requirements of this standard, rather than one individual. 
Several commenters expressed that identification of an individual to 
fulfill this role would be burdensome.
    In reviewing the comments, the Department wishes to clarify that it 
is the sponsor that bears the responsibility for meeting the 
requirements of this standard. The proposed requirement is intended to 
facilitate the administration and accountability of the program. As 
stated in the NPRM, the Department anticipates that this requirement 
would be fulfilled by the individuals who are already providing 
oversight for the program, such as a named apprenticeship coordinator. 
This proposal would not create new duties for the sponsor that the 
sponsor would not already have; rather, it would require the sponsor to 
identify a point person for overseeing its commitments to equal 
employment opportunity, whether that person actually performs all the 
necessary tasks or instead coordinates or monitors the performance of 
those tasks. While proposed Sec.  30.3(b)(1) requires each sponsor to 
identify ``an individual,'' in light of the comments indicating that 
some sponsors might find placing this responsibility on a single person 
burdensome, the language has been amended to require each sponsor to 
identify ``an individual or individuals'' to provide greater 
flexibility.
Paragraph 30.3(b)(2): Internal Dissemination of Equal Opportunity 
Policy
    Proposed Sec.  30.3(b)(2) required the sponsor to develop internal 
procedures to communicate its equal opportunity and affirmative action 
obligations to apprentices, applicants for apprenticeship, and 
personnel involved in the recruitment, screening, selection, promotion, 
training, and disciplinary actions of apprentices. This proposed 
requirement is similar to that in Sec.  30.4(c)(4) of the existing part 
30, which addresses internal communication of the sponsor's equal 
opportunity policy. However, proposed Sec.  30.3(b)(2) would be 
required of all sponsors, regardless of size, and would make this 
communication mandatory.
    An individual commenter suggested that the Department strengthen 
the language in Sec.  30.3(b)(2) that ``the sponsor must require that 
individuals connected with the administration or operation of the 
apprenticeship program take the necessary action to aid the sponsor in 
meeting its nondiscrimination and affirmative action obligations'' by 
specifying that this includes interceding when observing suspected acts 
of harassment or discrimination on the job or at school. We 
respectfully decline to include this specific language in the 
regulation. It is a well-established principle of discrimination law 
that, if the employer learns of harassing conduct and fails to take 
reasonable care to prevent and promptly correct the harassment, the 
employer can be held liable.\63\ This principle applies to sponsors in 
the apprenticeship context as well. Beyond this, we believe the anti-
harassment measures and right to file complaints otherwise set forth in 
this part will address the issue raised by the commenter. We do include 
one change to the regulatory text in (b)(2), specifying that the target 
of the dissemination of the equal opportunity policy include 
``individuals connected with the administration or operation of the 
registered apprenticeship program.'' This is made partly to make this 
paragraph consistent with others in Sec.  30.3 that use this exact 
phrasing. It is also to clarify the intent that the dissemination of 
the equal opportunity policy should be broad, reaching, for instance, 
supervisors, foremen, journeyworkers, and other non-supervisory 
employees working alongside apprentices in the sponsor's program.
---------------------------------------------------------------------------

    \63\ See EEOC Enforcement Guidance: Vicarious Employer Liability 
for Unlawful Harassment by Supervisors, accessible at https://www.eeoc.gov/policy/docs/harassment.html (last accessed May 18, 
2016).
---------------------------------------------------------------------------

    Proposed Sec. Sec.  30.3(b)(2)(i) and (ii) required a sponsor to 
publish its equal opportunity pledge in apprenticeship standards and in 
appropriate publications and post the pledge on bulletin boards, 
including through electronic media, accessible to apprentices and 
applicants for apprenticeship. Multiple commenters believed the 
proposed requirements requiring the equal opportunity pledge to be 
posted in apprenticeship standards and in appropriate publications, 
posted on bulletin boards, and through electronic media would not be 
burdensome, but a national JATC asserted the proposed requirement was 
at least partially redundant of part 29, which already requires 
insertion of the equal opportunity pledge. The Department notes that 
the proposed publishing requirement purposely goes beyond what is 
required in the part 29 equal opportunity pledge to include other 
appropriate publications. In

[[Page 92046]]

response to a question about what constitutes these ``appropriate 
publications,'' we note that the proposed regulation specified several 
types; providing more specificity than this isn't feasible given that 
what is appropriate will likely vary from sponsor to sponsor. The 
Department can provide technical assistance on this issue on a more 
individualized basis. The Final Rule does make a minor correction to 
(b)(2)(i), deleting ``and other appropriate publications,'' which was 
duplicative language, and replacing it with ``or other documents 
disseminated by the sponsor or that otherwise describe the nature of 
the sponsorship,'' and another non-substantive minor edit for better 
readability.
    While commending the intent of the proposed language requiring wide 
dissemination of EEO policies, an advocacy organization commented that 
the use of the term ``accessible'' in paragraph (b)(2)(ii) carries an 
additional meaning for individuals with disabilities and urged that 
dissemination of a sponsor's EEO policies should be ``accessible'' in 
the broadest possible terms. Similarly, another advocacy organization 
recommended that the Department amend Sec.  30.3(b)(2) to require that 
any electronic media platform used must be accessible to blind 
applicants (i.e., compatible with screen-reading technology). The 
Department notes that here ``accessible'' was intended to be 
interpreted broadly, and each sponsors should make its EEO policies 
available in alternative formats (such as large print, Braille and 
other means to enable individuals with visual impairments to read for 
themselves) upon request. This is consistent with existing obligations 
under disability law that require accommodations of individuals unless 
to do so would impose an undue hardship on the sponsor's operations.
    An individual commenter recommended that the Department require 
sponsors to use an inclusion statement to make the workplace 
environment friendlier to current women in the trades, as well as more 
welcoming to women considering joining the trade. The requirements to 
publish and post the equal opportunity pledge are intended to 
communicate that the apprenticeship programs are welcoming to all 
apprentices regardless of race, color, religion, national origin, sex, 
sexual orientation, genetic information, age, or disability. A required 
inclusion statement was not proposed in the NPRM, and accordingly, the 
Department declines to so amend this provision. Nonetheless, the 
Department encourages such statements to the extent that they serve to 
further signal to all prospective apprentices that they are welcome, 
which in turn may help sponsors obtain greater participation from 
members of certain underrepresented populations.
    Proposed Sec.  30.3(b)(2)(iii) required orientation and periodic 
information sessions for apprentices, journeyworkers who directly 
supervise apprentices, and other individuals connected with the 
administration or operation of the sponsor's program. Many comments 
received with respect to this requirement were generally positive. One 
advocacy organization suggested that the Department go beyond the 
proposal to require sponsors to, at a minimum, hold orientation and 
information sessions for apprentices, supervisors, and other 
individuals associated with an apprenticeship program on an annual, 
rather than periodic, basis to ensure that individuals are aware of the 
sponsor's EEO policy with regard to apprenticeship. We decline to 
incorporate this specificity in order to maintain sponsors' flexibility 
to conduct these sessions at intervals that make sense given the 
schedule at which sponsors onboard new apprentices. Another commenter 
recommended that the Department reiterate the importance of broadening 
the awareness of the EEO policy among those on work sites who control 
the circumstances of training by, for example, making clear that 
``other individuals connected with the administration or operation'' 
include the foreman and supervisors who establish the accepted practice 
on the job site. While not included in the regulatory text, we have 
provided this guidance in this preamble in the discussion of Sec.  
30.3(b). We have also clarified in the regulatory text of paragraph 
(b)(2)(iii) that sponsors include the anti-harassment training required 
by paragraph (b)(4) of the final rule in these orientation and 
information sessions in order to make clear at the outset that 
harassing conduct will not be tolerated.
    Many commenters raised concerns regarding the costs of such 
orientation and information sessions. In crafting this Final Rule, the 
Department has attempted to balance the burden on sponsors with 
establishing a meaningful and effective equal opportunity policy 
dissemination process. For instance, the Department notes that 
sponsors, as a matter of effective program management, must communicate 
some information jointly to apprentices and at least some other 
individuals connected with the administration and operation of its 
apprenticeship program during the course of its sponsorship. 
Accordingly, the sessions established in these regulations need not 
necessarily require new training sessions or timetables, but can 
incorporate the communication of the EEO policy information and anti-
harassment training into existing sponsor-participant communications 
and training sessions. We additionally repeat that the schedule for 
these sessions remains ``periodic'' to provide sponsors with some 
timing flexibility.
    Several commenters raised issues regarding the implementation of 
this requirement in various scenarios in which the sponsor is not the 
employer. These commenters noted generally that the requirement would 
place a particular burden on multi-employer sponsors, that the 
employers would generally be better placed to provide EEO training of 
this sort, and the constantly changing nature of the participating 
employers and employees further expanded the burden. Accordingly, one 
commenter recommended that the Department eliminate the proposed 
requirement that program sponsors conduct training and orientation for 
journeyworkers who supervise apprentices. The Department recognizes 
that sponsors operate apprenticeship programs in numerous industries 
and occupations, involving a wide range of working conditions and 
environments, and that sponsors are not always the employer of the 
apprentice. However, the proposal was largely based on existing actions 
already undertaken by sponsors, such as that set forth in the existing 
Sec.  30.4(c)(10), to ``develop[ ] reasonable procedures between the 
sponsor and employers of apprentices to ensure that employment 
opportunity is being granted . . . .'' As discussed above, the 
Department has not prescribed in the proposed rule the exact nature and 
frequency of these sessions, to allow sponsors some flexibility 
depending on their circumstances, but expects sponsors to carry out 
these activities in good faith, which may in many cases involve 
coordinating with participating employers. Accordingly, we decline to 
diverge from the existing regulations and create different obligations 
for different models of sponsorship.
    Cost concerns were also raised with respect to the maintenance of 
records required by proposed Sec.  30.3(b)(2)(iv). To clarify, the 
Department notes that this obligation is consistent with recordkeeping 
already required in the existing regulations, which obligate 
maintenance of ``information relative to the operation of the 
apprenticeship

[[Page 92047]]

program.'' \64\ For paragraphs (b)(2)(i) and (ii), the obligation could 
be met simply by retaining a copy of the documents where the EO pledge 
is included. For paragraph (iii), retaining a copy of any written 
materials used to effectuate the sessions, as well as some 
memorialization of when the session occurred and who attended, would 
suffice for compliance purposes.
---------------------------------------------------------------------------

    \64\ See existing 29 CFR 30.8(a).
---------------------------------------------------------------------------

Paragraph 30.3(b)(3): Universal Outreach and Recruitment
    Proposed Sec.  30.3(b)(3) required all sponsors to ensure that 
their outreach and recruitment efforts for apprentices extended to all 
persons available and qualified for apprenticeship within the sponsor's 
recruitment area regardless of race, sex, ethnicity, or disability 
status. Many commenters, including advocacy organizations and an SWA, 
expressed support for the proposed universal outreach and recruitment 
requirements. Some advocacy organizations reasoned that, given 
historical outreach and hiring practices focused primarily on men, 
broader outreach efforts are necessary to increase women's awareness of 
these opportunities.
    Other commenters expressed concerns regarding the scope and cost of 
this outreach requirement. One commenter recommended that the 
Department remove the proposed requirement in Sec.  30.3(b)(3)(i) that 
sponsors maintain lists of recruitment sources that will generate 
referrals from all demographic groups and the proposed requirement in 
Sec.  30.3(b)(3)(iii) to notify recruitment sources in advance of 
apprenticeship opportunities, noting that existing advertising 
mechanisms were sufficient. The Department notes that the proposed 
revision mirrors outreach and recruitment efforts set forth in the 
existing Sec.  30.4(c)(1), so the requirement to do so now should not 
be new for many sponsors. Further, the data in the introduction to this 
preamble showing widespread underutilization of certain groups indicate 
that existing advertising mechanisms may not be sufficient to draw 
interest from as broad and diverse a base as possible.
    An SWA expressed concern regarding the costs of outreach activities 
for small sponsors, such as those with fewer than five apprentices, 
that were not previously required to conduct mandatory recruitment and 
outreach activities, and that it might serve as a deterrent to creating 
new registered apprenticeship programs. To this, in addition to the 
response above, we note the Department intends to provide guidance to 
sponsors who need assistance finding sources for recruitment. While 
outreach and recruitment activities take some degree of time, when done 
purposefully they can provide immense benefits to the apprenticeship 
program, bringing a wide range of previously untapped talent into the 
workforce.
    Finally, another commenter recommended that to limit costs the 
Department retain the proposed minimum activities but add to Sec.  
30.3(b)(3) that a sponsor must engage in recruitment that would 
``reasonably be expected'' to encourage persons with a potential 
capacity for apprenticeship to submit an application, suggesting the 
following revised language:

    (3) Universal outreach and recruitment. The sponsor will 
implement measures to ensure that its outreach and recruitment 
efforts for apprentices extend to all persons available for 
apprenticeship within the sponsor's relevant recruitment area 
without regard to race, sex, ethnicity, or disability and are 
reasonably expected to encourage persons with a potential capacity 
for apprenticeship to submit an application regardless of sex, race, 
ethnicity, or disability.

    The language proposed by the commenter appears to add another 
requirement, thus possibly adding to any burden that might be created. 
Insofar as the commenter is seeking to soften the requirement that a 
sponsor ``implement measures to ensure that its outreach and 
recruitment efforts extend to all persons available,'' to clarify, the 
implementation of this provision will be reviewed by evaluating the 
range of recruitment sources, not by checking that every available 
person was reached. As noted above, during compliance reviews the 
Department will consider a sponsor's good faith efforts in this regard. 
The Department accordingly declines to amend the provision as 
requested.
    Regarding the question of whether the required outreach activities 
would result in a benefit to justify the costs, a national JATC 
commented that the studies cited in the NPRM did not include any 
empirical evidence that additional outreach by construction industry 
training funds would result in greater participation of women and 
minorities in the apprenticeship programs. The commenter said that the 
studies cited in the NPRM showed that the barriers to female 
participation are societal and there are no consensus best practices to 
address them.
    As an initial response to this comment, the Department does not 
agree that there is no evidence that additional outreach would result 
in greater participation by traditionally underrepresented groups. As 
stated in the introduction of the rule, the experience of highway 
construction apprentices in Oregon, where extensive efforts to increase 
diversity have occurred, demonstrates that the participation rate of 
women and minorities can increase markedly when it is prioritized. In 
response to the comment that underutilization is strictly ``societal,'' 
which we interpret to mean out of the control of apprenticeship 
sponsors to address, while we do not suggest that discrimination is the 
entire reason for utilization disparities, there is ample evidence that 
it is a contributing factor. As described earlier, comments received 
from several women working in the construction trades, including those 
who have participated in apprenticeship programs, detail repeated 
examples of differential treatment in job assignments, training, and 
promotions, as well as sexually harassing work environments. Another 
commenter cited academic research demonstrating that, despite the 
ability and interest of women to work in these jobs, external barriers 
in recruitment, hiring, training, and retention of women persists. 
Indeed, a 2012 study funded by the U.S. Department of Labor identified 
``harassment and exclusion at male-dominated worksites'' as one of 
three primary barriers underlying women's low rate of participation in 
construction trades apprenticeships,\65\ and a 2013 report from the 
National Women's Law Center describes the ways in which both overt and 
subtle forms of discrimination discourage women from entering and 
remaining in the construction field.\66\
---------------------------------------------------------------------------

    \65\ An Effectiveness Assessment and Cost-Benefit Analysis of 
Registered Apprenticeship in 10 States, available at https://wdr.doleta.gov/research/FullText_Documents/ETAOP_2012_10.pdf (pp. 
50-52) (last accessed May 27, 2016).
    \66\ Women in Constuction: Still Breaking Ground, available at 
http://www.nwlc.org/sites/default/files/pdfs/final_nwlc_womeninconstruction_report.pdf (last accessed May 27, 
2016).
---------------------------------------------------------------------------

    A number of comments made suggestions for additional specificity. 
Several advocacy organizations recommended that the Department include 
all of the protected bases in Sec.  30.3(b)(3) to ensure inclusive 
outreach and recruitment and avoid prohibited discrimination. Asserting 
that apprenticeship programs have a history of imposing maximum age 
requirements and other age-discriminatory practices, one advocacy 
organization urged the Department to add ``age'' to the bases on which 
registered apprenticeship programs have a general duty to engage in 
affirmative action in outreach and recruitment. As discussed above, the 
affirmative action provisions of this part follow generally other such 
affirmative

[[Page 92048]]

action programs which do not require specific outreach and recruitment 
obligations on the basis of age. Nothing in the rule, however, would 
prevent a sponsor from engaging in such activities.
    Some advocacy organizations urged the Department to add to the list 
of examples of relevant recruitment sources in Sec.  30.3(b)(3)(i) 
organizations that represent and serve women, people of color, and 
other underrepresented populations including individuals with 
disabilities. Further, these commenters suggested that the Department 
provide links to such resources on its Web site. As discussed above, 
the Department expects to provide technical assistance to sponsors to 
help them identify relevant recruitment sources, either through 
publication on its Web site or through more targeted communication.
    To underscore that outreach alone is not sufficient to recruit 
women in particular, some advocacy organizations suggested that the 
Department include language in Sec.  30.3(b)(3) to require that 
outreach is paired with career education that includes formal and 
informal apprenticeship information and orientation sessions describing 
what is entailed in the apprenticeship, the requirements and processes 
for applying, and explanations of the selection process. Related to 
this, these commenters recommended OA post on its Web site a list of 
resources for technical assistance and examples of career education 
materials, including links to WANTO-developed resources. These comments 
call for new provisions that, while laudable, go beyond the scope of 
the outreach efforts proposed in the NPRM, and we decline to require 
them in the Final Rule. As stated above, the Department intends to 
provide guidance to sponsors relating to relevant recruitment sources.
    An advocacy organization urged the Department to strengthen the 
universal outreach requirements by requiring that apprenticeship 
programs report on the results of their outreach efforts (e.g., how 
many candidates were received from each source, whether those 
candidates were accepted into the program, and why or why not) and 
modify outreach efforts over time in accordance with the reported 
results. The Final Rule requires such reporting in written AAPs for 
sponsors who are underutilized and required to engage in targeted 
recruitment, as data would be particularly important to sponsors in 
that standing, but we decline to extend it to the more general outreach 
requirement. Similarly, another advocacy organization recommended that 
the Department propose accountability targets for outreach, 
recruitment, and retention. This is largely the purpose of the 
utilization goals set forth in the sections dealing with the written 
AAP obligations.
    A national union and a national JATC said that the Department 
should clarify the scope of the ``relevant recruitment area,'' as that 
term is used throughout Sec.  30.3(b)(3). Explaining that JATCs are 
often located in remote areas, such that the training centers are not 
in the same labor market as the work opportunities provided by the 
signatory contractors, these commenters recommended that the Department 
add clarifying language to Sec.  30.3(b)(3). The Department addresses 
the proper interpretation of ``relevant recruitment area'' in the 
discussion of Sec.  30.5, and submits that sponsors should use that 
interpretation to understand the meaning of the term in this section as 
well.
    Commenters also recommended that the Department develop, update, 
and disseminate annually lists of recruitment resources, including 
contact information, by occupation and industry that sponsors can use. 
The commenters suggested that this would ease compliance determinations 
made by Registration Agencies, in addition to easing the cost burden on 
sponsors so that they could expend recruitment resources on direct 
contact and ongoing coordination with the staff of recruitment 
resources and meeting with groups of potential candidates. The 
Department and SAAs maintain relationships with some recruitment 
sources, and we provide such information to sponsors, as available and 
appropriate. The Department intends to increase technical assistance 
available to sponsors and provide additional recruitment sources to the 
extent that our resources allow.
    Another commenter expressed concern that requiring sponsors to 
``develop and update annually a list of current recruitment sources 
that will generate referrals from all demographic groups within the 
relevant recruitment area,'' could result in Registration Agencies 
holding sponsors accountable if recruitment and referral sources do not 
refer qualified applicants, despite good faith efforts on the part of 
the sponsor. For this reason, the commenter recommended revising the 
language from ``sources that will generate referrals'' to ``sources 
likely to generate referrals . . . .'' We decline to make this change. 
In the circumstance that the commenter raises, we would expect that the 
sponsor, upon realizing that the sources it is using are not fulfilling 
the intent of this provision, would seek alternative or additional 
sources that are more effective at referring qualified applicants. The 
obligation is intended to be a dynamic one in which sponsors actively 
engage, rather than a rote, ``check the box'' requirement.
    Regarding the proposed Sec.  30.3(b)(3)(iii) requirement that 
sponsors provide recruitment sources advance notice, preferably 30 
days, of apprenticeship openings, we received comments on all sides of 
the issue. Several commenters urged the Department to require no less 
than 30 days advance notice, which these commenters said would allow 
sufficient time for the notice of an opening to be processed, acted 
upon, and disseminated by the recruitment source and reach prospective 
applicants. These advocacy organizations stated that, historically, 
short public notice of opening periods disadvantaged nontraditional 
pools of applicants who did not have the benefit of familial or 
collegial connections to become aware of apprenticeship opportunities 
and the application processes, selection methods, and/or criteria for 
competitive candidates.
    By contrast, another commenter recommended that the Department 
eliminate the requirement to provide 30 days advance notice of 
apprenticeship openings. This commenter reasoned that when an 
apprenticeship opening occurs, it may not always be feasible to provide 
referral sources with 30 days advance notice, particularly when new 
openings occur as a result of a new project or when someone suddenly 
discontinues participation in the apprenticeship program. Another 
proposed that the Department revise the provision to read ``provide 
recruitment sources notice of such openings within 30 days of the 
opening being published,'' that is, 30 days after the opening. Finally, 
one commenter said the time set forth in the regulation should not be 
``preferred,'' but rather a concrete amount of time.
    We note in the first instance that the proposed language mirrored a 
provision at Sec.  30.4(c)(1) of the existing regulations that 
established 30 days in advance as a firm deadline, rather than a 
preferred one. Thus, the intent was to carry over an obligation that 
was familiar to sponsors, but provided more flexibility to account for 
differing logistical possibilities. Taking into consideration the 
comments we received on both sides, we believe this approach remains 
the best one for those reasons, and thus we retain the proposed text in 
the Final Rule.

[[Page 92049]]

Paragraph 30.3(b)(4): Maintaining Apprenticeship Programs Free From 
Harassment, Intimidation, and Retaliation
    Proposed Sec.  30.3(b)(4) required a sponsor to develop and 
implement procedures to ensure that its apprentices are not harassed 
because of their race, color, religion, national origin, sex, sexual 
orientation, age (40 or older), genetic information, or disability, and 
to ensure that its workplace is free from harassment, intimidation, and 
retaliation. The proposal included four specific requirements set forth 
in separate subparagraphs: (i) Communicating to all personnel that 
harassing conduct will not be tolerated; (ii) providing anti-harassment 
training for all personnel; (iii) ensuring that facilities and 
apprenticeship activities are available to apprentices without regard 
to protected bases; and (iv) establishing procedures for handling and 
resolving complaints about harassment.
    Several commenters generally supported the proposal. Numerous 
advocacy organizations, a professional association, and individual 
commenters expressed support for anti-harassment protections as being 
critical to prevent and confront the discrimination that is often 
pervasive at work sites, including sexual harassment and stereotypes, 
and to increase retention over time. One individual commenter stated 
that when women apprentices are isolated on jobs with only men they are 
subject to harassment and unsafe working conditions. Several women 
submitted comments describing their personal experiences being subject 
to sexual harassment as an apprentice on a work site. An advocacy 
organization commented that age-based harassment is a growing problem, 
citing EEOC Enforcement & Litigation statistics.
    Several advocacy organizations urged the Department to strengthen 
further the proposed anti-harassment provisions in Sec.  30.3(b)(4). 
One of these organizations cited a study that it asserted shows that 3 
in 10 women respondents in an interview study reported frequent sexual 
harassment, harassment on the basis of their sexual orientation, or on 
the basis of their race or ethnicity. In particular, these 
organizations asserted that strong anti-harassment measures will help 
ensure that more women complete their apprenticeship programs and 
recommended that the Department add to the anti-harassment measures at 
Sec.  30.3(b)(4)(i)-(iv) a requirement that sponsors must make all work 
assignments and training opportunities available without regard to the 
protected bases under the proposed rule. This principle is already 
protected by Sec.  30.3(a)(1).
    An industry association recommended that the Department clarify 
what ``workplace'' means in Sec.  30.3(b)(4) because, in many cases, 
apprenticeship sponsors are not the employers of the apprentices and 
only have control over what takes place within their own facilities. To 
address this concern, the Department has replaced the term 
``workplace'' with ``apprenticeship program,'' to clearly indicate the 
sponsor's role in preventing harassment, intimidation, and retaliation. 
This can apply to both individual and group sponsors, in the manner 
discussed previously.
    One commenter suggested strengthening the proposed Sec.  
30.3(b)(4)(i), which requires sponsors to communicate to all personnel 
that harassing conduct will not be tolerated, to include opportunities 
for apprentices to share information about harassment or intimidation 
on the job or at school to identify common problems, which could create 
a valuable feedback mechanism for sponsors interested in confronting 
harassment. The Department also received significant comments regarding 
proposed Sec.  30.3(b)(4)(ii) requiring that sponsors ``provide anti-
harassment training to all personnel.'' A number of commenters 
expressed concerns about the costs they asserted sponsors would incur 
as a result of the proposed requirement that sponsors must provide 
anti-harassment training to all personnel. For example, a national JATC 
urged the elimination of this provision in the Final Rule because many 
union-sponsored apprenticeship programs are statewide or regional and 
the costs of bringing in every journeyworker for anti-harassment 
training would impose a large burden on the program. Further, this 
commenter reasoned that the provision is unnecessary because 
contractors are required by law to maintain a nondiscriminatory 
workplace and union representatives can assist in helping them do so. 
In contrast to the comments raising the issue of burden, some 
commenters urged the Department to require additional training or add 
more specific language to the proposed requirement that sponsors must 
``provide anti-harassment training to all personnel.'' These 
suggestions included requiring regular and ongoing professional 
development on cultural competency, anti-discrimination, and 
affirmative action requirements for apprenticeship training staff, 
instructors, administrators, and support staff, both in classroom-
related instruction and on work sites, as well as best practice 
guidelines.
    To address these competing concerns, the Department has maintained 
the proposal's requirements that sponsors communicate that harassment 
will not be tolerated and provide anti-harassment training, but we 
clarify the proposal in three ways. First, in response to concerns that 
the proposal's requirement to provide training and communications to 
``all personnel'' was too broad, we revise the Final Rule to state that 
sponsors must ensure these obligations reach ``individuals connected 
with the administration and operation of the apprenticeship program, 
including all apprentices and journeyworkers who regularly work with 
apprentices.'' This is narrower than the ``all personnel'' language 
proposed, but, as stated in the discussion of paragraph (b)(2) where 
this language is also used, should be broadly interpreted to include 
apprentices, supervisors, foremen, journeyworkers, and other non-
supervisory employees working regularly alongside apprentices in the 
sponsor's program. It would not require, for instance, communication to 
employees of participating employers who do not work in proximity to, 
or otherwise interact with, apprentices in these programs, although we 
maintain that the broadest possible communication of anti-harassment 
principles and obligations is a best practice.
    Second, paragraph (b)(4)(i) of the Final Rule requires that 
sponsors are required to provide training for this same narrower 
category of personnel, and clarifies that this must not be a mere 
passive transmittal of information, but must include participation by 
trainees in a training program, such as attending a training in person 
or completing an interactive training program online.
    Third, the Final Rule clarifies that the training content must 
include, at a minimum, the communication of the following information: 
A statement that harassing conduct will not be tolerated; a definition 
of harassment and examples of the types of conduct that would 
constitute unlawful harassment; and the right to file a harassment 
complaint. We believe communicating these elements as part of anti-
harassment training is fundamental to creating an environment where it 
is broadly understood what constitutes harassment and that such 
harassment has no place in an apprenticeship program.
    We expect that some sponsors, in the course of their normal 
business practices, already provide anti-

[[Page 92050]]

harassment training that covers some or all of what this Final Rule 
requires. To the extent that sponsors can simply modify existing 
training modules (including the orientation and information sessions 
set forth in paragraph (b)(2)(iii) above) to include this training 
obligation, doing so will limit the associated time and expense for 
compliance. Further, to help sponsors comply with this training 
obligation, the Department will provide technical assistance, including 
links to materials relevant to the required contents of the anti-
harassment training, that sponsors and/or participating employers can 
use.
    Proposed Sec.  30.3(b)(4)(iii) required that ``if the sponsor 
provides restrooms or changing facilities, the sponsor must provide 
separate or single-user restrooms and changing facilities to assure 
privacy between the sexes.'' An individual commenter urged the 
Department to require job sites to have separate male and female 
restrooms. Some advocacy organizations urged the Department to require 
sponsors to have external locks on all single-user and sex-segregated 
restrooms and changing facilities and to ensure that all restrooms and 
changing facilities are enclosed, including a roof, to ensure privacy 
between the sexes and support safety and health measures in accordance 
with the findings and recommendations of the Advisory Committee on 
Occupational Safety and Health in its report ``Women in the 
Construction Workplace: Providing Equitable Safety and Health 
Protection.'' Commenting that unsafe sanitary facilities are a large 
challenge for women in nontraditional trades, two individual commenters 
also recommended that the regulations ensure that women have access to 
secure, safe, locked sanitary facilities. The Department notes that 
rules regarding the sanitation of restrooms and changing facilities 
apply more broadly to workplaces than to those that are part of an 
apprenticeship program and this type of specificity was not proposed in 
the NPRM. Nonetheless, the language ``to assure privacy'' implies that 
such restrooms and changing facilities must be secure. For this reason, 
the Department does not change the proposal on this account.
    One advocacy organization suggested that the Department should 
include specific language regarding access to appropriate sex-
segregated facilities for all workers in apprenticeship programs. 
Numerous other advocacy organizations urged the Department to clarify 
that program sponsors must permit transgender persons to access 
restrooms and changing facilities based on their gender identity. As 
discussed earlier, Sec.  30.3(a)(2) of the regulation provides that the 
Department will look to relevant legal authorities to interpret whether 
sponsors are engaging in unlawful sex discrimination.\67\ The 
Department will continue to monitor the developing law related to the 
issues raised by the commenters, and will consider issuing further 
guidance on this subject as appropriate. Accordingly, the proposed 
paragraph (b)(4)(iii) is retained in the Final Rule as paragraph 
(b)(4)(ii).
---------------------------------------------------------------------------

    \67\ Multiple cases have held that failure to provide access to 
restrooms consistent with an individual's gender identity violated 
Title VII. See Lusardi v. Dep't of Army, EEOC Appeal Doc. 
0120133395, 2015 WL 1607756, at *8 (April 1, 2015); Hart v. Lew, 973 
F. Supp. 2d 561, 581-82 (D. Md. 2013) (recognizing a transgender 
plaintiff's title VII sex discrimination claim based in part on her 
employer's repeated denial of access to the women's restroom). 
However, as noted previously, the effect of the preliminary 
injunction issued in Texas v. U.S., No. 7:16-cv-00054-O, 2016 WL 
4426495 (N.D. Tex. Aug 21, 2016) is unclear at the time this rule 
went to publication.
---------------------------------------------------------------------------

    Proposed Sec.  30.3(b)(4)(iv) required that sponsors implement 
procedures for handling and resolving complaints about harassment and 
intimidation. An individual commenter requested that the Department 
require sponsors to post such internal procedures in common areas of 
schools, work sites, and meeting spaces. The requirement to ``establish 
and implement'' implies providing notice that such procedures exist and 
posting such procedures where apprentices would see them. The Final 
Rule retains proposed paragraph (b)(4)(iv) in the Final Rule as 
paragraph (b)(4)(iii), with the addition of a line stating that the 
establishment and implementation of procedures for handling and 
resolving complaints applies to complaints about retaliation, as well 
as harassment and intimidation. This is in keeping with the broader 
focus of paragraph (b)(4).
Paragraph 30.3(b)(5): Compliance With Federal and State Equal 
Employment Opportunity Laws
    Proposed Sec.  30.3(b)(5) required all sponsors to comply with all 
applicable Federal and State laws and regulations requiring EEO without 
regard to race, color, religion, national origin, sex, sexual 
orientation, age (40 or older), genetic information, or disability. 
Proposed paragraph (b)(5) largely duplicates the existing Sec.  30.10.
    An SWA commented that the Sec.  30.3(b)(5) assignment of EEO 
obligations to the sponsor ``or [in the case of a] joint apprenticeship 
training committee, parties represented on such committee'' seems to 
transfer responsibility from a sponsor to the applicable managers and 
union officials, which would protect the sponsor from ever being 
sanctioned (i.e., deregistered). The commenter asked why this privilege 
applies only to joint committees and whether non-joint committees are 
materially different in this regard. The Department clarifies that, as 
stated earlier, the obligations of this part apply to all sponsors. It 
recognizes that the language in parentheses ``or where the sponsor is a 
joint apprenticeship committee, the parties represented on such 
committee'' could be understood as an exception. Therefore this 
language has been stricken.
    Moreover, this commenter asserted that the reference to other laws 
in proposed Sec.  30.3(b)(5) would require registered apprenticeship 
stakeholders to enforce policies of programs and systems that are 
outside of their familiar venue (e.g., vocational rehabilitation, 
gender equity, or disability rights). The commenter asked whether 
officials in those other policy areas will have reciprocal duties to 
enforce registered apprenticeship standards. In response, the 
Department notes that proposed Sec.  30.3(b)(5) carried forward the 
provisions from existing Sec.  30.10. With this in mind, we clarify 
that this proposed provision is not intended to incorporate by 
reference the requirements of all Federal and State non-discrimination 
laws and regulations. Rather, it recognizes that many sponsors may 
already be subject to such laws, etc., and to the extent they are, they 
must comply with them. Failure to do so may be grounds for enforcement 
action under proposed Sec.  30.15. Such action would only be taken if 
the violations of other Federal and State non-discrimination laws are 
applicable to the sponsor and relate to the employment opportunity of 
apprentices. To make this clear, language from existing Sec.  30.10, 
``if such noncompliance is related to the equal employment opportunity 
of apprentices and/or graduates of such an apprenticeship programs 
under this part,'' has been inserted in the Final Rule.
Paragraph 30.3(c): Equal Opportunity Pledge
    Proposed Sec.  30.3(c) carried forward the requirement set forth in 
the current Sec.  30.3(b) for an equal opportunity pledge and include 
age (40 or older), genetic information, sexual orientation, and 
disability on the list of bases upon which a sponsor must not 
discriminate, and included a parenthetical stating that

[[Page 92051]]

sex discrimination included discrimination on the basis of gender 
identity and pregnancy. Apart from the comments addressed earlier 
recommending that the ground of sex discrimination expressly recognize 
sexual orientation discrimination and sex stereotyping as additional 
forms of sex discrimination, which has already been discussed, no other 
comments were received. Accordingly, the text is adopted as proposed.
Paragraph 30.3(d): Compliance
    In order to clarify the time a sponsor has to comply with 
obligations in this rule, rather than a catch-all ``effective date'' 
provision as was set forth in the proposed Sec.  30.20, the Final Rule 
sets forth in the specific sections, as needed, when a sponsor must 
come into compliance with the obligations set forth in that section. If 
no such date is provided, it is intended that the sponsor must comply 
with a particular section as of the effective date of the Final Rule.
    Proposed Sec.  30.20 required that currently registered 
apprenticeship programs have 180 days to come into compliance with the 
provisions of Sec.  30.3, but did not specify a similar compliance 
deadline for sponsorships newly registered after the effective date. 
This new Sec.  30.3(d) carries over the 180-day compliance date for 
currently registered programs from the proposed Sec.  30.20, and 
clarifies that sponsors registered after the effective date will need 
to comply with Sec.  30.3 upon registration or 180 days after the 
effective date of this rule, whichever is later. This is consistent 
with the proposal and will ensure that sponsors registered shortly 
after the rule's effective date in no circumstance will have to come 
into compliance more quickly than currently registered sponsors.

Affirmative Action Programs (Sec.  30.4)

    The existing Sec.  30.4 set forth the regulatory requirements with 
respect to AAPs, addressing: The adoption of an AAP in Sec.  30.4(a); 
the definition of affirmative action in Sec.  30.4(b); the requirements 
for broad outreach and recruitment in Sec.  30.4(c); the mandate that a 
sponsor include goals and timetables where underutilization occurs in 
Sec.  30.4(d); the factors for determining whether goals and timetables 
are needed in Sec.  30.4(e); the establishment and attainment of goals 
and timetables in Sec.  30.4(f); and that the Secretary of Labor will 
make available to program sponsors data and information on minority and 
female labor force characteristics in Sec.  30.4(g). Exemptions from 
the requirement to adopt an AAP were found in the existing part 30 at 
Sec.  30.3(e) and (f).
    The NPRM proposed to restructure this section in order to 
streamline, clarify, update, and improve the AAP requirements by making 
clear the purpose of AAPs, stating who must adopt an AAP, listing the 
required elements of AAPs, explaining the exemptions for maintaining an 
AAP, and laying out the proposed new timing for internal review of 
AAPs.
    A number of commenters expressed concern with the burden associated 
with maintaining AAPs generally. For example, a national JATC remarked 
that the proposed AAP requirements would put a time and resource burden 
on sponsors and an individual commenter warned that the proposed rule 
could divert already-limited resources away from training programs and 
opposed any rules that would increase costs for purposes of tracking 
and reporting. A national JATC expressed concern that proposed Sec.  
30.4 would make affirmative action requirements more difficult to 
understand and comply with in general.
    The Department understands the voluntary nature of apprenticeship 
and that many program sponsors are under resource constraints, but 
notes that the requirement to maintain an AAP is not a new requirement 
and that all non-exempt sponsors (i.e., sponsors with 5 or more 
apprentices) are currently required to develop and maintain such plans 
with respect to women and minorities. As explained in the NPRM, 
maintaining an AAP need not be an unduly burdensome undertaking. 
Thousands of registered apprenticeships with AAPs have been established 
under the existing regulations, and many have maintained and grown the 
number of apprenticeships and the skill of their individual workers 
notwithstanding the AAP obligations, and because of these obligations 
have taken strides to diversify their program to more closely reflect 
the available workforce. While these regulations add some new 
obligations to the AAP, the intent was to streamline and clarify the 
AAP as a whole, making it simpler to understand what compliance means 
and easier to measure and achieve meaningful success--both for existing 
apprenticeship programs and for the many companies looking to create 
apprenticeship programs now and in the future. The Department has 
thoroughly considered the concerns raised by the commenters with regard 
to burden and, as described in the discussions of sections 30.4-30.8 
herein, the Final Rule contains several changes from the proposal 
designed to reduce further the burden of AAP compliance for sponsors 
while maintaining an effective overall program.
Paragraph 30.4(a): Definition and Purpose
    Proposed Sec.  30.4(a) included a revised definition of 
``affirmative action program'' and explained that, in addition to 
identifying and correcting underutilization, AAPs also are intended to 
institutionalize the sponsor's commitment to inclusion and diversity by 
establishing procedures to monitor and examine the sponsor's employment 
practices and decisions with respect to apprenticeship, so that the 
practices and decisions are free from discrimination, and barriers to 
equal opportunity are identified and addressed.
    Multiple commenters, including a national JATC and SWAs, disagreed 
with the premise laid out in paragraph (a)(2) that ``absent 
discrimination, over time a sponsor's apprenticeship program, 
generally, will reflect the sex, race, ethnicity, and disability 
profile of the labor pools from which the sponsor recruits and 
selects.'' These commenters argued that the goals set forth in Sec.  
30.4(a) do not take into account the societal and cultural factors that 
influence an individual's decision to pursue apprenticeship and that 
lack of diversity is not necessarily a direct result of discrimination, 
and suggested that the Department remove paragraph (a)(2). 
Specifically, one commenter said that it is impossible for the sponsor 
to address underlying societal problems that influence lack of 
participation by underrepresented groups, such as lack of access to 
childcare or transportation. Some commenters remarked that compliance 
with affirmative action requirements should be determined by whether 
the sponsor has made significant efforts to meet its goals and 
timetables.
    We respectfully disagree with many of the comments on this proposed 
language, which mirrors language in the OFCCP affirmative action 
regulations and describes well-established rationales for affirmative 
action. The idea behind maintaining an AAP is to combat any existing 
societal factors that may have been influenced by previous 
discriminatory norms and practices and that may continue to deter 
underrepresented groups from seeking jobs in certain sectors. The data 
cited at the beginning of this preamble demonstrates that stark 
underutilization of the protected groups persists to the present. While 
some amount of this disparity may not be directly attributable to 
discrimination, the comments we received from individuals

[[Page 92052]]

in the trades and advocacy organizations describing widespread 
harassment and other behavior that has a chilling effect on these 
groups entering apprenticeships cannot be ignored. While a sponsor's 
goals are aspirational, it should take underutilization as a signal 
that it should look closely at its employment and outreach practices to 
ensure that its practices are not preventing underrepresented groups 
from applying to, participating, and advancing in apprenticeship. The 
targeted outreach, recruitment, and retention practices outlined in 
Sec.  30.8 are designed to help sponsors experiencing underutilization 
overcome societal barriers to apprenticeship that may exist in that 
field. As discussed more fully in Sec.  30.6, this is not a purely 
arithmetic exercise. Each sponsor's compliance with its affirmative 
action obligations will be determined in significant part by reviewing 
the nature and extent of the sponsor's good faith affirmative action 
activities and the appropriateness of those activities to identify 
equal employment opportunity problems. A sponsor's compliance is 
measured by whether it has made good faith efforts to meet its goals; 
failure to meet goals is not itself a violation of these regulations.
    An SWA requested a definition of the term ``barriers'' as it 
applies to Sec.  30.4(a)(1) and (a)(2), and requested clarification 
about how to detect and remove barriers. A national JATC and a national 
union suggested that the Department provide guidance on ``specific, 
practical steps'' to address barriers to equal opportunity to comply 
with Sec.  30.4(a)(2).
    ``Barriers'' are any practices that prevent individuals from 
realizing an equal opportunity to apply for and participate in 
apprenticeship programs. These could include lack of effective outreach 
so that certain populations are unaware of apprenticeship 
opportunities, selection mechanisms that are not job related that 
disfavor certain protected groups, attitudes toward or treatment of 
certain individuals that are hostile or otherwise unwelcoming, or the 
failure to provide equal opportunity in training, pay, work 
assignments, discipline, or other employment actions. AAPs are tools 
designed to assist a sponsor in detecting and diagnosing where barriers 
may exist in its program and how they may be impacting certain groups. 
By documenting and collecting information at various stages of its 
program, including recruitment, selection, training, and assignment, a 
sponsor can analyze whether any element of its program is adversely 
impacting individuals within certain racial, sex, or ethnic groups. If 
a sponsor discovers that its program is underutilized for women or one 
or multiple underrepresented groups, this may be a sign that barriers 
currently exist for those groups. The Department has identified 
specific steps that a sponsor must take with regards to its outreach, 
recruitment, and retention activities if it discovers that it is 
underutilized, as set forth in Sec.  30.8, infra. Each sponsor is also 
encouraged to take any additional steps it concludes could help 
eliminate barriers. The Department can also provide more individualized 
guidance and technical assistance to sponsors in order to help identify 
and overcome any barriers to equal opportunity in apprenticeship.
    Commenters, including a national JATC and a national union, 
suggested that the Department should clarify Sec.  30.4(a)(3), which 
refers to internal auditing as a tool to measure the sponsor's progress 
in achieving an apprenticeship program that would be expected absent 
discrimination, by specifying where the discrimination is presumed to 
take place (e.g., on the construction site or in the classroom or other 
training centers). One commenter suggested that this internal auditing 
should be used to find specific areas of the sponsor's program where 
practices might be causing a disparate impact on certain groups 
throughout different phases of the program.
    AAPs are designed to assist sponsors in identifying possible 
discrimination that could be occurring at any point in the 
apprenticeship program, whether that discrimination is occurring in the 
application process, in job assignments, through harassment at a work 
site, or any other element of the program. There is no single step in 
the apprenticeship program where discrimination is presumed to occur 
and the internal audit and review that accompanies a sponsor's AAP 
should be thorough and detailed enough to allow the sponsor to learn of 
any potential discrimination throughout its program. The Department 
encourages each sponsor, when reviewing its compliance with AAP 
obligations, to identify any specific areas or practices that may be 
adversely affecting certain groups. An AAP is designed to be a tool to 
assist sponsors in identifying any specific practices that may be 
deterring or excluding women and/or minorities from participating fully 
in the program.
    Commenters also sought guidance on how the EEO responsibilities of 
JATCs might differ from those of non-joint committees that directly 
employ apprentices. Similarly, an industry association asserted that it 
would be difficult to meet the requirements detailed in Sec.  
30.4(a)(4) related to monitoring, examining, evaluating, and revising 
employment decisions and policies because apprentices may be involved 
in a JATC program that involves work for multiple employers, arguing 
that these programs would be unable to monitor the employment policies 
of each employer. An SWA commented that the proposed rule language 
confuses the roles of sponsors and employers, and suggested that the 
language could be clarified to define specific new responsibilities for 
sponsors.
    These comments raise issues addressed previously in the discussion 
of Sec. Sec.  30.1 and 30.3. Generally speaking, it is--and has been 
historically under these regulations--the responsibility of the sponsor 
to ensure that all aspects of its program are being administered in a 
non-discriminatory manner and to implement an AAP. This clearly applies 
to the sponsor's own employment practices, policies, and decisions. In 
programs where participating employers, rather than the sponsor, 
control certain aspects of the apprenticeship experience, ensuring the 
program's broad compliance with affirmative action obligations has been 
accomplished through written agreements between sponsor and employer 
setting forth procedures to ensure that employment opportunity is being 
granted. This would include sponsors communicating with participating 
employers about policies that could be resulting in discrimination and 
addressing complaints of discrimination. As stated previously, while 
this requires a degree of purposeful oversight on the part of the 
sponsor, it is consistent with past practice in group sponsorships and 
is necessary so as to prevent expansive loopholes that could frustrate 
the purpose of this part.
    An industry association suggested that the Department should use 
the term ``equal opportunity program,'' as opposed to ``affirmative 
action program.'' The Department declines to accept this suggestion. As 
is made clear by the definition of ``affirmative action program'' that 
was contained in the NPRM, and that is adopted in this Final Rule, an 
AAP is ``more than mere passive nondiscrimination'' and requires 
sponsors to ``take affirmative steps to encourage and promote equal 
opportunity, to create an environment free from discrimination, and to 
address any barriers to equal opportunity in apprenticeship.'' They 
share many similarities with ``affirmative action

[[Page 92053]]

programs'' administered by OFCCP. Referring to these programs as 
``affirmative action programs,'' a broadly used and well understood 
concept, reinforces the idea that sponsors must not only refrain from 
discriminating against apprentices and applicants for apprenticeship, 
but must also take positive steps to correct any barriers to equal 
employment. Additionally, many sponsors already maintain AAPs under the 
current regulations, and changing the name of the program would create 
unnecessary confusion and inconsistency.
Paragraph 30.4(b): Adoption of Affirmative Action Programs
    Proposed Sec.  30.4(b) detailed who must adopt an AAP, and further 
stated that, unless otherwise exempted by proposed Sec.  30.4(d), each 
sponsor must develop and maintain a written AAP, which must be made 
available to the Registration Agency any time thereafter upon request.
    A comment from an SWA stated that affirmative action activities 
proposed would be difficult for smaller apprenticeship program sponsors 
with limited staffing and financial resources and may discourage 
potential new sponsors from registering their programs. An exemption 
for smaller apprenticeship programs is discussed in Sec.  30.4(d), 
below. With regard to the more general burden concerns dissuading 
entities from entering into or continuing registered apprenticeship 
programs, the Final Rule allows sponsors, both existing and new, more 
time to comply with AAP requirements than was proposed in the NPRM. 
Sponsors will have two years, either from the effective date (for 
sponsors registered with a Registration Agency at the time this Final 
Rule becomes effective) or from the date of registration (for new 
sponsors) in which to complete a written AAP. Details regarding the 
compliance date of each of these components can be found in the 
respective sections of this Final Rule, but in general, the Final Rule 
provides more time than the NPRM to complete these steps, allows more 
time between subsequent reviews of these obligations, and increases the 
assistance provided by Registration Agencies to sponsors in order to 
complete these obligations. As one example, during a new apprenticeship 
program's provisional review conducted within one year of registration, 
the Registration Agency will provide further guidance to assist in the 
completion of the initial written AAP.
Paragraph 30.4(c): Contents of Affirmative Action Programs
    Proposed Sec.  30.4(c) provided an outline of the five required 
elements of an AAP: (1) Utilization analyses for race, sex, and 
ethnicity; (2) establishment of utilization goals for race, sex, and 
ethnicity, if necessary; (3) establishment of utilization analyses and 
goal setting for individuals with disabilities; (4) targeted outreach, 
recruitment, and retention, if necessary; and (5) a review of personnel 
processes.
    The Department's responses to specific comments addressing the five 
required elements of AAPs are explained in those respective sections of 
the preamble (Sec.  30.5-Sec.  30.9). In addition to the five elements 
outlined above, a few advocacy organizations urged the Department to 
include sexual orientation in AAPs and suggested that individuals 
should be given the opportunity to self-identify as lesbian, gay, 
bisexual, or transgender (LGBT). The Final Rule adds sexual orientation 
as a protected basis upon which a sponsor may not discriminate, but, 
consistent with OFCCP's AAPs, it does not include sexual orientation as 
a basis upon which a sponsor must collect information or engage in 
action-oriented programs.
    A national JATC encouraged the Department to retain the existing 
Sec.  30.4(c), which provides, in part, that ``the Department may 
provide such financial or other assistance as it seems necessary to 
implement the requirements of this paragraph.'' This commenter said 
that deleting this section sends the wrong message to the regulated 
community and the public because it appears the Department is leaving 
the JATCs to use their own resources to comply with requirements.
    While the Department will provide extensive technical assistance to 
sponsors in complying with the AAP obligations of this Final Rule, as 
discussed in greater detail in later sections, it has always been and 
will continue to be the responsibility of each sponsor to allocate 
sufficient resources to ensure that its program is being operated in a 
non-discriminatory manner. Nonetheless, the Department does not need a 
regulatory requirement in order to provide such assistance and the 
Department may continue to offer such assistance in the future. 
Accordingly, the Department declines to retain the prior language of 
Sec.  30.4(c), and adopts the language in proposed paragraph (c) 
without change.
Paragraph 30.4(d): Exemptions
    Proposed Sec.  30.4(d) set forth the two exemptions to the 
requirement that a sponsor develop an AAP: Programs with fewer than 
five apprentices; and programs already subject to an approved equal 
employment opportunity program providing for affirmative action in 
apprenticeship that includes the use of goals for each underrepresented 
group. These exemptions are the same as those that were contained in 
the existing regulations. With regards to the exemption for programs 
subject to an approved equal employment opportunity program, however, 
proposed Sec.  30.4(d) required that a sponsor with an approved equal 
employment opportunity program agree to extend that program to include 
individuals with disabilities to ensure that all protected bases set 
forth in the proposal would be addressed and that the sponsor was 
taking the appropriate actions to ensure that protected individuals are 
employed as apprentices and advanced in employment.
    Paragraph (d)(1) of this section exempted sponsors with fewer than 
five apprentices from the AAP obligations. Two industry associations, 
an SAA, and an individual commenter expressed support for the exemption 
for programs with fewer than five apprentices. One industry association 
commented that the exemption should be expanded to exempt even larger 
programs from the AAP requirement. In contrast, many commenters 
suggested that all sponsors should be required to create AAPs, 
regardless of the size of the apprenticeship program, arguing that the 
exemption would exclude a significant portion of apprenticeship 
programs from the equal opportunity requirements that the regulations 
aim to provide. Two national unions commented that the proposed 
exemption is contrary to the recommendation of the Advisory Committee 
on Apprenticeship. These commenters suggested that the Department 
should require all programs to maintain AAPs but support those programs 
with limited resources through technical assistance.
    Commenters also expressed concern that exempting small programs 
would exclude programs in the early years of growth, when the AAP has 
the greatest potential for positive, long-term impact. A national union 
and a national JATC warned that there would be faster growth in small 
programs rather than large programs, and that these new programs would 
not have to maintain AAPs under the exemption. An SAA concluded that, 
at a minimum, small

[[Page 92054]]

sponsors should be required to provide a strategy for outreach and 
recruitment of a diverse workforce.
    A national union and an industry association stated that the staff 
and resource capacity that would be needed to comply with the 
affirmative action requirements would also be needed to comply with the 
universal outreach requirements in Sec.  30.3, and therefore there is 
no additional reason to exempt small programs from the AAP 
requirements. Similarly, two national unions argued that, by the 
Department's own analysis, the burden to develop and maintain an AAP 
would be minimal, and the benefits of ensuring EEO for all apprentices 
would outweigh whatever burden was associated with maintaining the AAP. 
Some commenters also argued that exempting small programs was 
inconsistent with other Departmental programs, including those applying 
to federal contractors.
    Many commenters further argued that the exemption should not be 
based on number of apprentices, but on the resources available to the 
sponsor. For example, some commenters suggested that the exemption 
should be tied to the sponsor's total number of employees, rather than 
the number of apprentices, or to the contributions received by the 
sponsor. Several unions and an industry association commented that most 
large apprenticeship programs are trusts created by collective 
bargaining agreements and are funded by contributions, which often have 
limited flexibility in terms of resource allocation and subjects 
programs funded by collective bargaining to the same cost-sensitivity 
as small programs. On the other hand, a State agency commented that 
entities with fewer than five apprentices are often large employers 
with sufficient resources to comply with an AAP. A national union 
commented that the exemption should only apply to sponsors that truly 
do not have the resources to maintain an AAP, and should not just apply 
to small programs across the board.
    An SWA also asked whether the exemption would apply to sponsors 
that operate multiple programs, each with fewer than five apprentices, 
but with more than five apprentices across all programs.
    Acknowledging the range of opinions on this topic, the Final Rule 
retains the current exemption without change. Although some commenters 
argue that the AAP requirement is so burdensome that even fewer 
programs should be required to maintain these plans, the majority of 
commenters and the Advisory Committee on Apprenticeship supported 
eliminating the exemption altogether, claiming that the benefits of EEO 
far outweighed any burden imposed by maintaining an AAP. The Department 
agrees that the exemption should not be expanded, as currently 
approximately seventy-five percent of apprenticeship programs already 
fall within this exemption, and no compelling evidence has been 
presented to increase the apprenticeship threshold for the exemption.
    However, the Department believes that eliminating the exemption 
entirely would be detrimental as well. While the creation and 
management of an AAP need not be an unduly burdensome process, the 
exemption for programs with fewer than five apprentices is a 
longstanding one. We further disagree with the comment asserting that 
the obligations under Sec.  30.3 are the same as those required by the 
AAP; the AAP contains data collection and analysis obligations that 
Sec.  30.3 does not. Although some commenters noted that not all small 
programs have resource constraints and that, conversely, not all large 
programs have resources sufficient to conduct AAPs, the Department 
assumes that programs with fewer than five apprentices will generally 
have fewer staff members administering the program than those with 
significantly more apprentices. And, for any larger programs with 
limited resources, these programs are currently subject to the AAP 
requirements and should therefore have already absorbed the cost of 
conducting an AAP into their operational budget. Furthermore, the 
Department will provide technical assistance to programs in developing 
their AAPs to ease any burden associated with this requirement.
    In addition to the Department's concerns regarding the burden 
imposed on small programs, the Department also notes that programs with 
fewer than five apprentices may be less likely to generate enough data 
to provide meaningful utilization analyses, given the smaller sample 
size presented by each apprenticeship class. Moreover, in light of the 
stronger equal opportunity standards--as outlined in Sec.  30.3--that 
now apply to all sponsors, even those programs that are not required to 
maintain AAPs will be required to take specific, proactive steps to 
ensure nondiscrimination and increase their recruitment and outreach 
efforts. The Department believes that these requirements will increase 
the participation of underrepresented groups across all programs, 
including those with fewer than five apprentices.
    In response to those comments claiming that the exemption for small 
sponsors is inconsistent with the requirements imposed upon federal 
contractors, the Department notes that, while the nondiscrimination 
provisions of Executive Order 11246, which are administered by the 
Department's OFCCP, apply to contractors regardless of size so long as 
they have qualifying contracts totaling $10,000 or more in a calendar 
year, OFCCP's AAP requirements only apply to those contractors with 50 
or more employees and a single contract of $50,000 or more.\68\
---------------------------------------------------------------------------

    \68\ See 41 CFR 60-1.5, 60-2.1.
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    Finally, in response to the SWA's question regarding the 
application of the exemption, any program that employs fewer than five 
apprentices is exempt from the AAP requirement, regardless of the size 
of any other programs that the sponsor may administer.
    With regard to paragraph (d)(2)'s exemption of programs subject to 
approved equal employment opportunity programs, which is carried over 
from the existing rule in large part, many commenters supported the 
exemption for programs that were already in compliance with an AAP, so 
long as that AAP was extended to cover individuals with disabilities. 
Some commenters sought clarification on how the exemption would 
operate. For example, a State agency requested clarification as to 
whether a sponsor would need to develop an AAP under proposed Sec.  
30.4 if apprenticeship is not specifically dealt with as a sub-
classification or sub-goal in a plan developed for compliance with 
other Federal programs such as E.O. 11246. Additionally, an industry 
association asked for clarification as to whether or not there would be 
an exemption for association program sponsors that obtain apprentices 
from participating employers that are already in compliance with other 
AAP requirements. With regard to the issue of including apprenticeship 
as a sub-classification or sub-goal, the sponsor would need to 
demonstrate that its plan extended to the operation of its 
apprenticeship program, meaning that the apprentices would need to be 
covered by the plan's nondiscrimination and affirmative action 
standards. The sponsor would not need to develop separate goals for its 
apprenticeship program, however, so long as the goals established 
pursuant to the pre-existing plan are likely to equal or exceed the 
goals that would be required pursuant to this Final Rule. With regard 
to the second request for clarification, a sponsor must develop its own 
AAP and may not simply rely on an AAP in place for its participating 
employers.

[[Page 92055]]

Paragraph 30.3(e): Written Affirmative Action Plans
    Finally, proposed Sec.  30.4(e) incorporated the existing practice 
of requiring internal reviews of AAPs on an annual basis, but also 
allowed a sponsor who could demonstrate that it was not underutilized 
in any of the protected bases for which measurements are kept (race, 
sex, and disability) and that its review of personnel practices did not 
require any necessary modifications to meet nondiscrimination 
objectives, to wait two years to complete its next AAP review. The 
Department sought comments on this proposal, including specifically 
whether stakeholders believe such an approach would incentivize AAP 
success without compromising the overall goals of promoting and 
ensuring equal employment opportunity in registered apprenticeship.
    Several advocacy organizations expressed support for allowing 
sponsors to wait two years to complete the next internal AAP review if 
the review does not indicate underutilization or any necessary 
modifications. These commenters suggested, however, that this extension 
on the review period should only be allowed for sponsors that have not 
received any substantiated complaints of discrimination, arguing that 
this would provide a strong incentive for meeting affirmative action 
and nondiscrimination obligation. An SWA expressed concern that this 
requirement might be overly burdensome, and requested guidance on how 
Registration Agencies should enforce the requirement to self-monitor. 
Some advocacy groups were also concerned that external review 
mechanisms should be in place. A few commenters suggested that sponsors 
should be required to submit their written AAPs, or a summary of their 
annual or biannual review, to the Registration Agency upon completion. 
Similarly, an individual commenter suggested that sponsors should be 
required to publish written AAPs, goals, and timetables on their Web 
sites to increase transparency, accountability, and community 
engagement. In order to better understand whether participation among 
underrepresented groups is improving, an advocacy organization also 
urged the Department to publish the participation of apprentices by 
sex, race, ethnicity, and disability status annually. Finally, an 
individual commenter asked for clarification as to whether or not AAPs 
need to be approved by the Registration Agency prior to implementation.
    The Department removes the proposed paragraph 30.4(e) from the 
Final Rule and instead addresses the timeline for completing and/or 
updating the particular elements of an AAP within each of those 
respective sections of the Final Rule. As set forth in these sections, 
the schedule for each respective AAP element will also apply uniformly 
and will not depend whether a sponsor has met its utilization goals. 
While the biannual review schedule for sponsors meeting their goals 
would have reduced the burden for those sponsors from what is required 
under the existing regulations, the Final Rule's timeline for the 
review of AAP elements in many cases further reduces the frequency with 
which sponsors need to review certain elements of their AAPs, thereby 
reducing burden even further for all covered sponsors. This will also 
increase consistency in sponsor obligations and streamline compliance 
reviews for Registration Agencies.
    In place of the proposed paragraph 30.4(e), the Final Rule sets 
forth the obligation for creating a written AAP document. Written AAPs 
are already required under the existing regulations, and are required 
to be updated annually per existing Sec.  30.8. However, in practice, 
most sponsors did not fully update their written AAPs until they were 
scheduled for a compliance review, for reasons discussed further in 
Sec.  30.5, below. Paragraph 30.4(e) establishes that initial written 
AAPs must be completed within 2 years of the effective date of the 
Final Rule for sponsors with existing apprenticeship programs, and 
within 2 years of registration for all apprenticeship programs 
registered after the effective date. Written AAPs must be subsequently 
revised every time the sponsor completes workforce analyses for race, 
sex, and disability as required by Sec. Sec.  30.5(b) and 30.7(d)(2) of 
this part. In order to facilitate compliance and ease the burden of 
this obligation, the Department will provide model written AAPs that 
each sponsor may tailor to its own program. The Department will also 
provide a timeline chart that clearly sets out when the sponsor must 
comply with each AAP obligation.
    In response to those commenters suggesting that sponsors should 
publish or submit their written AAPs to the Registration Agency, the 
Department declines to adopt these suggestions, as doing so would be 
unnecessarily burdensome both for the sponsor and the Registration 
Agency. Instead, the Registration Agency will ensure during the 
sponsor's compliance review that the sponsor properly conducted and 
documented all reviews and analyses that were required between 
compliance evaluations. OA will also look into providing more 
information regarding diversity in apprenticeship on its Web site. 
Regarding the requests for clarification, existing written AAPs do not 
need to be submitted to the Registration Agency, but will be reviewed 
for compliance with this Final Rule at the sponsor's next compliance 
review.

Utilization Analysis for Race, Sex, and Ethnicity (Sec.  30.5)

    In the NPRM, the Department proposed to move the topic in the 
existing Sec.  30.5, selection of apprentices, to Sec.  30.10. In its 
place, the Department proposed a new Sec.  30.5, which provided 
guidelines for assessing whether possible barriers to apprenticeship 
exist for particular groups of individuals by determining whether the 
race, sex, and ethnicity of apprentices in a sponsor's apprenticeship 
program is reflective of the population available for apprenticeship by 
race, sex, and ethnicity in the sponsor's relevant recruitment area. 
This proposed Sec.  30.5 clarifies and expands upon the existing Sec.  
30.4(e), ``Analysis to determine if deficiencies exist,'' which 
requires the sponsor to compute availability for minorities and women 
in its program. The existing Sec.  30.4(e) required that sponsors take 
at least five factors into account when determining whether 
deficiencies exist. It did not, however, explain how these factors 
relate to the availability of qualified individuals for apprenticeship, 
nor did it indicate how a sponsor should consider or weigh each of 
these factors when determining availability.
    In short, proposed Sec.  30.5 was intended to incorporate elements 
of the existing process for analyzing race, sex, and ethnicity 
utilization while clarifying and streamlining the process for 
determining availability and utilization. This was to be accomplished 
by decreasing the number of data sources sponsors must analyze in 
determining the labor market composition, clarifying the steps required 
to do the utilization analysis, and providing clear directions for 
establishing goals. However, we received a number of comments that the 
revisions were not clear, and placed additional burden on sponsors to 
conduct analyses that they historically had not undertaken, but rather 
were performed with the assistance of Registration Agencies at 
compliance reviews. As described below, in response to these comments, 
the Final Rule provides further clarity sought by the commenters and 
reassigns the

[[Page 92056]]

burden associated with these analyses so they more closely resemble 
existing practice.
Paragraph 30.5(a): Purpose
    Proposed Sec.  30.5(a) explained that the purpose of a utilization 
analysis was ``to provide sponsors with a method for assessing whether 
possible barriers to apprenticeship exist for particular groups of 
individuals by determining whether the race, sex, and ethnicity for 
apprentices in a sponsor's apprenticeship program is reflective of 
persons available for apprenticeship by race, sex, and ethnicity in the 
relevant recruitment area.'' It further explained that where there was 
significant disparity between availability and representation in the 
sponsor's apprenticeship program, the sponsor was required to establish 
a utilization goal.
    The Department received one comment on this paragraph, which asked 
the Department to define or clarify what it meant by ``significant 
disparity.'' As discussed in reference to Sec.  30.6, a sponsor may use 
several different methods for calculating underutilization, although 
the most frequently used are the ``80 percent rule,'' and the ``two 
standard deviation rule.'' A finding of underutilization pursuant to 
either of these methods means that there is a significant disparity 
between the sponsor's utilization of that particular group within its 
apprenticeship workforce and that group's availability in the relevant 
recruitment area.
Paragraph 30.5(b): Analysis of Apprenticeship Program Workforce
    The NPRM laid out the first step of the utilization analysis in 
proposed Sec.  30.5(b), which required sponsors to identify the racial, 
sex, and ethnic composition of their apprentice workforces. Rather than 
review the composition for each occupational title represented in a 
sponsor's apprenticeship program, proposed Sec.  30.5(b) simplified the 
analysis by only requiring the sponsor to group the occupational titles 
represented in its registered apprenticeship program by industry.
    Some commenters were confused about the extent of the sponsor's 
workforce that would be included in the program's workforce analysis. 
For example, a State Department of Labor questioned whether 
journeyworkers should be included in the apprentice workforce, and a 
national union urged the Department to state that entities operated by 
the sponsor under another name should also be covered for purposes of 
the utilization analysis. For purposes of conducting the apprentice 
program workforce analysis, sponsors should include all active 
apprentices. Sponsors should not include apprentices or employees who 
are not enrolled in the program in question. Unlike laws governing 
federal contractors, this Final Rule only regulates sponsors with 
regard to the administration of its apprenticeship program; this Rule 
does not require sponsors to conduct utilization analyses for its non-
apprentice workforce.
    Several commenters, including an SWA and a national union, 
expressed concern with assessing the racial, sex, and ethnic 
composition of a program by industry, as opposed to by occupation. Some 
commenters argued that grouping occupations by industry could result in 
industries that consist of occupations with varying skill level 
requirements, advancement opportunities, and compensation, and that 
this grouping could be conducted in an arbitrary manner. Other 
commenters were concerned that grouping occupations by industry would 
make it more difficult to know if female or minority apprentices were 
being concentrated in lower paying positions within an industry, or in 
positions with little potential for advancement. One commenter also 
asserted that the industry-wide requirement conflicts with the 
directive in proposed Sec.  30.5(c)(3) that ``in determining 
availability, the sponsor must consider at least the following factors 
for each occupational title represented in the sponsor's registered 
apprenticeship program.''
    The Department agrees with many of these comments, and therefore 
the Final Rule requires each sponsor to group its apprenticeship 
programs by occupational title, rather than by industry, for purposes 
of conducting the workforce analysis. This will require the sponsor to 
identify each occupation within its apprenticeship program according to 
the methods currently used (either by RAPIDS code or the appropriate 
six-digit Standard Occupational Classification (SOC) or O*NET code 
\69\) and then, for each occupation represented, the sponsor must 
identify the race, sex, and ethnicity of its apprentices within that 
occupation. The Department believes that this approach will provide a 
more precise mechanism for assessing the demographic composition of a 
sponsor's apprenticeship program, using the most discrete data set, and 
will allow each sponsor to review its workforce for those issues 
identified in the comments, such as channeling or the concentration of 
women and minorities in certain occupations that may earn lower wages 
or have fewer advancement opportunities than other similar occupations. 
This method will also be more consistent with the methods many sponsors 
currently employ to evaluate their workforces, thereby making it easier 
for sponsors to come into compliance with this Final Rule. With regard 
to the last comment, the inclusion of ``occupational title'' in the 
proposed Sec.  30.5(c)(3) was an inadvertent error; it was intended to 
be ``industry,'' for consistency with the remainder of the utilization 
analysis. As discussed below, however, the Final Rule contains a slight 
revision to the utilization and availability analyses, requiring that 
they be done according to ``major occupation group'' rather than 
industry, and so this provision has been changed in the Final Rule to 
say ``major occupation group.''
---------------------------------------------------------------------------

    \69\ https://www.onetonline.org/ (last accessed June 9, 2016).
---------------------------------------------------------------------------

    The Final Rule also clarifies the timing for conducting the 
apprenticeship program workforce analysis. As detailed below, the 
Department received many comments from sponsors expressing concern with 
the potential burden of conducting their own availability analysis. In 
response, the Final Rule incorporates a procedure much more similar to 
the existing one, wherein Registration Agencies actively assist 
sponsors in conducting their availability analysis and setting their 
utilization goals. Under paragraph (c), therefore, a sponsor will be 
required to work with the Registration Agency at the time of its 
regular compliance review to reassess the availability of women and 
minority groups within its relevant recruitment area and to update its 
utilization goals, if necessary. Under paragraph (b), however, each 
sponsor will retain the responsibility for conducting its workforce 
analysis pursuant to the steps discussed above. The Department is 
adding paragraph 30.5(b)(2) to clarify that each sponsor must conduct a 
workforce analysis at each regular compliance review, and again if 
three years have passed without a compliance review.
    The Department is also clarifying, in new paragraph 30.5(b)(3), 
when each sponsor will first need to come into compliance with this 
provision and conduct its initial workforce analysis pursuant to this 
section. For a sponsor registered with a Registration Agency as of the 
effective date of this Final Rule it will have up to two years from the 
effective date in which to conduct its initial workforce analysis. As 
discussed above, this does not require the sponsor to conduct an 
availability analysis, or to

[[Page 92057]]

set utilization goals. Each sponsor should continue operating under its 
existing goals until its next compliance review. A new sponsor 
registering after the effective date of this Final Rule will have two 
years from the date of its registration in which to complete its first 
workforce analysis. Following the initial workforce analysis, a covered 
sponsor will conduct workforce analyses at each regular compliance 
review and once between compliance reviews, no later than three years 
after the sponsor's most recent compliance review, as mentioned above.
Paragraph 30.5(c): Availability Analysis
    The next step in the utilization analysis, under existing practice 
and pursuant to proposed Sec.  30.5(c), was to determine the 
availability of qualified individuals by race, sex, and ethnicity. The 
purpose of the availability analysis, as explained in the NPRM, is to 
establish a benchmark against which the demographic composition of the 
sponsor's apprenticeship program can be compared in order to determine 
whether barriers to equal opportunity may exist with regard to the 
sponsor's apprenticeship program. Proposed paragraph Sec.  30.5(c) 
described the steps required to perform an availability analysis, 
simplifying the process by reducing the number of factors sponsors must 
consider from five to two. The two factors proposed were: (i) The 
percentage of individuals available with the present or potential 
capacity for apprenticeship in the sponsor's relevant recruitment area 
broken down by race, sex, and ethnicity; and (ii) the percentage of the 
sponsor's employees with the present or potential capacity for 
apprenticeship broken down by race, sex, and ethnicity. In addition, 
proposed Sec.  30.5 required that a sponsor consider the availability 
of qualified individuals for apprenticeship by race, sex, and 
ethnicity, rather than continue the current approach, which requires 
the sponsor to analyze availability and utilization for women and then 
for minorities as an aggregate group.
    The Department received numerous comments on the availability 
analysis. The majority of comments received from sponsors expressed 
confusion over how to conduct an availability analysis and concern that 
conducting such an analysis would be unduly burdensome for sponsors. 
Many commenters urged the Department to retain current Sec.  30.4(g), 
which states that the Department shall provide data and information on 
minority and female labor force characteristics for each Standard 
Metropolitan Statistical Area, rather than placing the burden on 
sponsors to derive this information. Two national unions said its 
survey of affiliates' apprenticeship programs indicated that the 
process of establishing this benchmark is not something in which most 
sponsors currently engage, and that they were unaware of any data 
sources that measure abilities and interests. An industry association 
also sought guidance on how the construction industry specifically 
should be determining availability.
    As mentioned above, in response to the perception held by many 
sponsors that conducting an availability analysis and setting a 
utilization goal would be challenging for sponsors to do themselves, 
the Department is revising Sec.  30.5(c) to comport more closely with 
the current practice wherein Registration Agencies work closely with 
each sponsor at its regular compliance reviews to develop and conduct 
an availability analysis and to set or reassess utilization goals for 
race, sex, and ethnicity, if necessary. Paragraph 30.5(c)(3) has been 
revised to clarify that the responsibility for conducting availability 
analyses will not fall solely to the sponsor, and that the sponsor and 
the Registration Agency will work together to conduct availability 
analyses. The Department is also revising paragraph 30.5(c)(5) to 
remove references to specific data sources for use in availability 
analyses. This was included in the NPRM in order to help sponsors 
complete utilization analyses, but the Final Rule instead will follow 
the existing practice of Registration Agencies taking the lead in 
performing these analyses. Accordingly, paragraph 30.5(c)(5) of the 
Final Rule includes a more general statement that availability ``will 
be derived from the most current and discrete statistical information 
available.''
    The Department also notes that, although it is adopting commenters' 
suggestion that the workforce analysis be conducted at the occupation 
level, the Final Rule requires that availability and utilization 
analyses be conducted according to major occupation group. A major 
occupation group, or job family, is a grouping of occupations based 
upon work performed, skills, education, training, and credentials.\70\ 
All Standard Occupational Classification (SOC) codes are organized into 
23 major occupation groups and the first two digits of an O*Net or SOC 
code correspond to the appropriate major occupation group.\71\ As 
explained in the NPRM, the Department had proposed grouping occupations 
by industry in order to allow sponsors with small numbers of 
apprentices in each occupation to aggregate their apprentices in a way 
that would provide a more meaningful statistical analysis. The 
Department has determined that aggregating by major occupation group 
serves the same general purpose as aggregating by industry, but is more 
consistent with the format used for the occupation-level workforce 
analysis. Sponsors and Registration Agencies will more easily be able 
to group the program's occupations into major occupation groups than 
industries.
---------------------------------------------------------------------------

    \70\ https://www.onetonline.org/find/family (last accessed June 
13, 2016).
    \71\ http://www.bls.gov/soc/major_groups.htm (last accessed June 
13, 2016).
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    This system that combines occupation-level workforce review with 
major occupation group-level utilization analyses will allow each 
sponsor to review its workforce for barriers or problems at a more 
discrete level, but to then use a more aggregated data set for purposes 
of assessing availability (and setting utilization goals, if 
necessary). Furthermore, permitting sponsors to aggregate occupations 
into major occupation groups would minimize the administrative burden 
for sponsors and Registration Agencies performing the analyses, 
particularly for those sponsors who have apprenticeship programs in 
which more than one occupational title is represented. Accordingly, 
each sponsor will organize the occupational titles represented in its 
apprenticeship program by major occupation group or job family, and 
will then compare the racial, sex, and ethnic representations within 
each of those major occupation groups to the representations of those 
groups available in the relevant recruitment area according to each 
major occupation group. For the many sponsors with only one major 
occupation group represented in their program, this may involve 
performing a single utilization analysis for the entire program.
    The Final Rule adds a paragraph 30.5(c)(6) to establish the 
schedule for conducting availability analyses. As indicated above, this 
new paragraph makes clear that a sponsor need only conduct an 
availability analysis in conjunction with the Registration Agency at 
the time of the sponsor's compliance review. A sponsor need not conduct 
separate availability analyses in between compliance reviews. At a 
sponsor's compliance review, the sponsor will work with the 
Registration Agency to define its relevant recruitment area, and the 
Registration Agency will assist the sponsor in calculating the 
availability of women

[[Page 92058]]

and minorities in the relevant recruitment area.
    In the NPRM, the Department referred to those individuals who were 
eligible and available for apprenticeship as having ``present or 
potential capacity for apprenticeship.'' This term was drawn from Sec.  
30.4(e)(5) of the existing regulations. This fact notwithstanding, 
several commenters were unsure of what it meant to have present or 
potential capacity for apprenticeship, and how they were supposed to 
identify those available individuals that have present or potential 
capacity for apprenticeship within the broader labor force. An industry 
association said the requirement to measure ``potential'' capacity 
should be deleted because an applicant must have immediate capacity to 
enter the program. Relatedly, commenters also sought clarification on 
how to apply educational or skill requirements when calculating 
availability. Some commenters noted that, in addition to any 
educational requirements, an individual's mechanical aptitude, high 
school transcript, prior work experience, and interest were all factors 
that should be considered in deciding who has ``present or potential 
capacity.'' A national union also asked whether JATCs may exclude 
persons who fail to meet physical standards in determining potential 
capacity for apprenticeship. An individual commenter asked if 
``potential capacity for apprenticeship'' would refer to apprenticeship 
programs requiring prior occupational training as a minimum 
requirement.
    Some commenters, on the other hand, were concerned that limiting 
the availability analysis to those individuals who had ``present or 
potential capacity'' could exclude relevant individuals from the 
sponsor's availability analysis. Many commenters urged the Department 
to clarify explicitly that apprenticeships are entry-level positions, 
generally requiring no previous experience or minimal requirements 
other than being at least 18 years of age and holding a high school 
diploma or equivalent and that a particular group's availability 
figures for apprenticeship programs would largely correspond its 
representation within the overall civilian labor force in the relevant 
recruitment area. To do otherwise, these commenters argue, could 
perpetuate existing underrepresentation of women and people of color in 
apprenticeship industries.
    As discussed above, the Department hopes that its continued 
involvement in assisting sponsors with performing the availability 
analysis will help to answer these questions and allay commenters' 
concerns. Additionally, in response to the comments received, the 
Department is replacing the term ``individuals available with the 
present or potential capacity for apprenticeship'' with ``individuals 
who are eligible for enrollment in the apprenticeship program.'' This 
change makes clear that the availability analysis should focus on those 
individuals who meet the basic qualifications for the apprenticeship 
program. However, in following with basic precepts of employment law, 
sponsors may not use basic qualifications or other criteria that have 
an adverse impact on one or more protected groups unless they are job-
related and consistent with business necessity. This does not mean that 
every available individual would be accepted into an apprenticeship 
program, only that any one of those individuals could potentially be 
selected as an apprentice. A sponsor may still refine its applicant 
pool, through interviews or other selection procedures, by determining 
which individuals would be best suited for an apprenticeship.
    In response to commenters inquiring about the source of data to use 
for determining availability, we note that this may vary depending on 
the nature of the apprenticeship, and so the Final Rule states only 
that current and discrete data shall be used. In some cases, such as in 
certain entry-level apprenticeships, the best data to determine 
eligibility may be the civilian labor force participation rate. 
Sponsors that apply minimum educational or certification requirements 
may work with their Registration Agency to further refine the relevant 
labor pool by calculating the availability of those individuals meeting 
the requirements of that program.
    Many commenters also sought guidance on how to define their 
relevant recruitment area. One commenter was confused as to how to draw 
its relevant recruitment area because it advertises on the internet and 
could possibly draw applicants from anywhere. Another commenter 
asserted that the labor market areas cited in the existing rule, which 
are based on metro- and micro-politan statistical boundaries and 
reflect workforce commuting patterns, are the most objective, unbiased, 
and realistic scope for recruitment. An SWA also explained that some 
sponsors are correctional facilities that recruit apprentices solely 
from inmates assigned to their facility and requested clarification 
that, in those cases, the ``relevant recruitment area'' for a 
correctional program could be limited to the actual facility, rather 
than the surrounding area.
    The relevant recruitment area is defined in paragraph 30.5(c)(4) as 
the geographical area from which the sponsor usually seeks or 
reasonably could seek apprentices. A relevant recruitment area is 
similar to a labor market area, but focuses more on where the sponsor 
draws apprentices from, rather than where workers reside in surrounding 
geographic areas. A relevant recruitment area recognizes that 
individuals may be willing to relocate in order to participate in an 
apprenticeship program. So, for instance, if the sponsor regularly 
advertises and recruits in areas that would require an individual to 
relocate, that would make the sponsor's relevant recruitment area 
broader than their labor market area.
    Each sponsor's relevant recruitment area is unique and may depend 
on how that sponsor chooses to advertise its apprenticeship program and 
the distance that past apprentices were willing to travel to attend the 
apprenticeship program. Proposed Sec.  30.5 attempted to offer sponsors 
greater flexibility in defining this area so long as the sponsor 
justified the scope of its recruitment area and did not draw the 
relevant recruitment area in such a way as to have the effect of 
excluding individuals based on race, sex, or ethnicity from 
consideration. A sponsor may determine that a metro- and micro-politan 
area, such as those used under the existing regulation, is the best 
representation of its relevant recruitment area. In that case, a 
sponsor may continue to utilize the availability data for that metro- 
and micro-politan area.
    While it is possible that a sponsor could attract an applicant from 
outside its standard recruitment area, the sponsor's availability 
analysis need only account for those individuals available for 
apprenticeship who are likely to be reached by the sponsor's 
recruitment efforts and who are likely able to commute or relocate to 
the program. For those sponsors advertising on the internet, the 
advertisement may reach a national or international audience, but the 
sponsor would need to consider whether individuals from other cities or 
states are likely to commute from those locations when the sponsor is 
drawing its relevant recruitment area. Similarly, a correctional 
facility sponsor that only recruits from within its own inmate 
population would simply need to explain in its written AAP that the 
recruitment area is limited to that facility because of the focus and 
requirements of the apprenticeship program. The Department will provide 
technical assistance to sponsors in

[[Page 92059]]

determining the appropriate relevant recruitment area, and sponsors are 
encouraged to work with their Registration Agency in unique situations.
    With regards to the second factor in the availability analysis, two 
commenters took issue with the use of the term ``employees'' in 
proposed Sec.  30.5(c)(3)(ii). An industry association said the 
requirement to analyze the numbers of current ``employees'' does not 
make sense for program sponsors that do not ``employ'' any apprentices. 
The commenter suggested that perhaps the proposed rule intended to 
reference minorities and women ``participating'' as apprentices, which 
is not as confusing as use of the term ``employees.'' Similarly, a 
national union stated the term ``employee'' is inapplicable to JATCs 
that do not employ apprentices or persons seeking to become 
apprentices. The commenter recommended that the Department provide 
guidance that is germane to joint labor-management committees in 
determining the availability of qualified individuals for 
apprenticeship.
    The Department acknowledges that not all sponsors will recruit from 
within their own workforce, and that the sponsor's current employees, 
or the employees of participating employers, may not be relevant to the 
sponsor's availability. In response to these comments, the Department 
notes that sponsors may accord the two factors in determining 
availability different weights. So, for example, a sponsor that 
conducts only external recruiting, and does not accept any of its 
employees into the apprenticeship program, would not give this factor 
any weight. On the other hand, a sponsor that drew apprentices equally 
from external sources and from within its own workforce would weigh the 
two factors equally. Additionally, the Final Rule revises this factor 
to reflect that any employees being considered in the availability 
analysis should be those ``who are eligible for enrollment in the 
apprenticeship program'' rather than who have ``the present and 
potential capacity for apprenticeship,'' for the reasons discussed 
above.
Paragraph 30.5(d): Rate of Utilization
    Finally, proposed Sec.  30.5(d) required each sponsor to establish 
a utilization goal when the sponsor's utilization of women, Hispanics 
or Latinos, or individuals of a particular racial minority group is 
``less than would be reasonably expected given the availability of such 
individuals for apprenticeship.'' This requirement is largely carried 
over from the existing regulations at Sec.  30.4(d)(3) and (4).
    Some commenters, including numerous advocacy organizations, urged 
the Department to clarify that the phrase ``less than would be 
reasonably expected'' means that the sponsor's utilization of women, 
Hispanics or Latinos, and/or individuals of a particular ethnic or 
racial minority group is ``less than the percentage available for 
apprenticeship in the relevant recruitment area.'' Another advocacy 
organization asked the Department to clarify that ``utilization'' 
should be understood as a measure of the number of hours worked by 
women apprentices and apprentices of color, rather than a measure of 
the number of women apprentices or apprentices of color accepted into 
the program. A State Department of Labor requested that the language 
from the preamble clarifying the methods by which a sponsor can 
calculate underutilization (e.g., ``the 80 percent rule'') be 
promulgated as part of the rule.
    The Department adopts Sec.  30.5(d) largely as proposed, but 
clarifies that a sponsor's utilization of women, Hispanics or Latinos, 
or individuals of a particular racial minority group is ``less than 
would be reasonably expected'' when the utilization falls significantly 
below that group's availability in the relevant recruitment area. 
Sponsors are permitted to calculate their utilization using any 
appropriate model, but recognizing that the ``80 percent rule,'' (i.e., 
whether actual employment of apprentices, broken down by race, sex, and 
ethnicity, is less than 80 percent of their availability) or the ``two 
standard deviations'' analysis, (i.e., whether the difference between 
availability and the actual employment of apprentices by race, sex, and 
ethnicity exceeds the two standard deviations test of statistical 
significance) are most commonly employed. The Department declines to 
include this in the regulatory text, but notes that either of these 
methods would be considered appropriate under the Final Rule. The 
Department also declines to measure utilization in terms of hours, as 
the availability data used in utilization analyses is recorded in terms 
of individuals, not hours worked, so it is unclear what benchmark a 
sponsor could use to compare the number of hours worked by individuals 
of particular racial, sex or ethnic groups. Additionally, sponsors are 
required to make job assignments in a non-discriminatory manner.
    The Department also reiterates that a finding of underutilization 
does not by itself constitute a violation. However, as described in 
Sec.  30.8, upon determining that the sponsor is underutilizing a 
particular racial, sex, or ethnic group, and setting a utilization goal 
for that group, the sponsor must engage in targeted outreach, 
recruitment, and retention efforts to attempt to reduce or eliminate 
any barriers facing the underutilized group.

Establishment of Utilization Goals for Race, Sex, and Ethnicity (Sec.  
30.6)

    In the NPRM, the Department proposed to move current Sec.  30.6, 
entitled ``Existing lists of eligibles and public notice,'' to Sec.  
30.10, and insert a new Sec.  30.6 that described the procedures for 
establishing utilization goals. Proposed Sec.  30.6 would carry over, 
clarify, and expand upon existing procedures set forth in Sec.  30.4(f) 
of the existing part 30, which required a sponsor to establish goals 
and timetables based on the outcome of the sponsor's analyses of its 
underutilization of minorities in the aggregate and women. The existing 
part 30 does not provide specific instructions on how to set a goal, 
and the form of goal that a sponsor is required to set depends on the 
nature of the selection procedure used.
    Proposed Sec.  30.6 simplified the goal-setting process by 
requiring only one type of goal, regardless of the selection procedure 
used, and eliminated references to timetables. It also specified that a 
sponsor's utilization goal for a particular underutilized group in its 
apprenticeship program must be at least equal to the availability 
figure derived for that group in the utilization analysis, and only 
required that goals be set for the individual racial or ethnic group(s) 
that the sponsor identified as being underutilized, rather than for 
minorities in the aggregate. Finally, proposed Sec.  30.6 made clear 
that quotas are expressly forbidden and that goals may not be used to 
create set-asides or supersede eligibility requirements for 
apprenticeship.
    Many commenters, including JATCs, individuals, and SWAs, supported 
the establishment of goals generally, but stated that goals equal to 
the percentage of available apprentices in some segments of the 
population is unrealistic, particularly with regards to women in 
certain industries. Sponsors worried that, despite increased outreach 
efforts to women, they would still struggle to meet their goals because 
women were not applying for positions and suggested that sponsors not 
be unduly penalized in this situation. There were some commenters, 
though, that objected to the use of goals entirely, arguing that 
utilization goals would

[[Page 92060]]

coerce program sponsors to implement unconstitutional hiring quotas and 
cited to Lutheran Church--Missouri Synod v. FCC [hairsp]\72\ for the 
proposition that the imposition of goals encourages employers to grant 
preferences to applicants based on their race, ethnicity or gender.
---------------------------------------------------------------------------

    \72\ 141 F.3d 344 (D.C. Cir. 1998).
---------------------------------------------------------------------------

    Advocacy groups and individuals, however, wanted to ensure that 
sponsors made real progress in increasing the representation of women 
and minorities in their apprenticeship programs. An individual 
commenter suggested that the Department require apprenticeship programs 
with low numbers of female apprentices to report their utilization rate 
to the Registration Agency and that such programs be audited annually 
until their numbers rise. Others suggested that sponsors should 
implement interim goals to ensure steady progress towards accomplishing 
the Sec.  30.6 utilization goal. Several commenters urged the 
Department to make clear that compliance with the AAP requirements will 
be determined by whether the sponsor has made a good faith effort to 
meet its goals and timetables. These commenters further stressed that 
good faith efforts should be judged by whether the sponsor is following 
its AAP and attempting to make it work, including evaluation and 
changes in the program when necessary to increase utilization of 
minorities.
    The Department largely adopts proposed Sec.  30.6 in the Final 
Rule, but amends paragraph (a) to make clear that a utilization goal is 
set for each major occupation group where underutilization is found and 
that a sponsor will set its utilization goals with the Registration 
Agency at the time of its regular compliance reviews. These goals will 
still reflect the availability percentage of the particular racial, 
sex, or ethnic group in the relevant recruitment area, as described in 
the NPRM. Again, the Registration Agency will assist the sponsor in 
conducting the availability analysis during the sponsor's compliance 
review and the goals established under this section will reflect the 
availability percentages as determined in that analysis. While some 
sponsors may fall short of these goals, the Department reminds sponsors 
that their determination that a utilization goal is required 
constitutes neither a finding nor an admission of discrimination, and 
that a sponsor's compliance will be determined based upon its good 
faith efforts to eliminate impediments to equal employment opportunity 
and not purely on whether the sponsor has met its goals.
    In response to concerns that these aspirational goals nevertheless 
have the effect of rigid quotas, the Final Rule, as did the NPRM, goes 
to great lengths to explicitly state that these goals are not and 
should not be interpreted to serve as quotas, and that they do not 
permit sponsors to create set-asides for specific groups. In response 
to the comment regarding Lutheran Church--Missouri Synod v. FCC, the 
Department notes that this Final Rule makes merit selection principles 
the basis for all employment decisions. This regulation requires both 
that employment decisions be made in a nondiscriminatory manner and 
that utilization goals may not be used to supersede merit selection or 
justify a preference being extended to any person on the basis of race, 
sex, or ethnicity. The clear distinction between this framework and a 
rigid quota system is further evidenced by the fact that sponsors will 
not be held liable for any violation of this part simply for failing to 
meet a utilization goal. By contrast, sponsors explicitly can be held 
liable for any personnel decisions made on the basis of a protected 
category, which would include preferential treatment in order to meet a 
goal.
    The Department also declines to set any specific goals for women 
and minorities that sponsors must reach, and further declines to 
require sponsors to reach tiered or interim goals. If the Registration 
Agency determines that a sponsor is not meeting its goals, the 
Registration Agency will work with that sponsor to identify potential 
problem areas in the program and devise corrective, action-oriented 
programs pursuant to Sec.  30.8.
    Commenters also sought clarification on some aspects of proposed 
Sec.  30.6. For example, a State agency requested clarification 
regarding what it meant to have ``just one type of goal'' for an 
apprenticeship program. To clarify, the new requirement that a sponsor 
only set ``one type of goal'' means that the sponsor will set the same 
type of utilization goal for each racial, sex, and ethnic group within 
its apprenticeship workforce, regardless of the way in which the 
sponsor selects its apprentices. This is in contrast to the existing 
requirement to set a different goal depending on which selection method 
the sponsor uses. For selections based on rank from a pool of eligible 
applicants, for instance, sponsors are currently required to establish 
a percentage goal and timetable for the admission of minority and/or 
female applicants into the eligibility pool. However, if selections are 
made from a pool of current employees, sponsors are required to 
establish goals and timetables for actual selection into the 
apprenticeship program. The Final Rule will simplify this process, such 
that the sponsor's goals will simply reflect the utilization of that 
race, sex, or ethnic group in the sponsor's overall workforce.
    Finally, the Final Rule slightly revises paragraph (d)(3), which 
reaffirms that goals do not create ``set asides'' nor are intended to 
achieve equal results, to more closely conform with similar language in 
OFCCP's 41 CFR part 60-2 regulations.

Utilization Goals for Individuals With Disabilities (Sec.  30.7)

    The existing Sec.  30.7 is reserved. In the NPRM, the Department 
proposed to assign a new section entitled ``Utilization goals for 
individuals with disabilities'' to Sec.  30.7, which would establish a 
single, national utilization goal of 7 percent for individuals with 
disabilities that applies to all sponsors subject to the AAP 
obligations of this part. As with utilization goals for race, sex, and 
ethnicity, the utilization goals for individuals with disabilities is 
designed to establish a benchmark against which the sponsor must 
measure the representation of individuals with disabilities in the 
sponsor's apprentice workforce by major occupation group, in order to 
assess whether any barriers to EEO remain. However, in contrast to the 
framework set forth for establishing utilization goals for race, sex, 
and ethnicity, the proposed Sec.  30.7 established one goal for every 
covered sponsor, regardless of the availability data in that sponsor's 
particular relevant recruitment area.
Paragraph 30.7(a): Utilization Goal
    Proposed Sec.  30.7(a) put forth the national utilization goal of 7 
percent for individuals with disabilities, derived in part from 
disability data collected as part of the American Community Survey. 
This goal mirrors that established by OFCCP in the affirmative action 
obligations of its section 503 regulations, which now apply to hundreds 
of thousands of Federal contractor and subcontractor and Federally-
assisted contractor and subcontractor establishments. Advocacy 
organizations generally supported the establishment of this utilization 
goal and stated that the goal, if met, could result in an additional 
26,000 job training opportunities for persons with disabilities. Some 
commenters sought higher goals or inquiry into other data sources to 
establish this goal. One advocacy organization suggested that

[[Page 92061]]

the utilization rate should be 16.5 percent, which is equal to the 
current percentage of individuals with disabilities within the working-
age population, or that sponsors should base their goal for individuals 
with disabilities on demographic statistics of persons with 
disabilities in their geographic location. Other advocacy organizations 
suggested that the Social Security Administration, the Department of 
Education, academic Rehabilitation Research and Training Centers, 
associations for State workforces, vocational rehabilitation agencies, 
special education transition programs, disability advocacy 
organizations, Independent Living Centers, Career One-stop centers, and 
IDEA-funded parent centers could all be sources of information on the 
availability of individuals with disabilities in the relevant area. 
Still other advocacy organizations recommended the Department raise the 
utilization goal by adopting a methodology that utilizes the ADA's 
broader definition of ``disability,'' rather than the American 
Community Survey, which the commenter said uses a more narrow 
definition of ``disability'' than the ADA. To ensure that people who 
have severe disabilities are not neglected, an advocacy organization 
recommended that the Department establish an additional sub-goal of 3 
percent for individuals with targeted severe disabilities.
    A number of JATCs and industry associations, on the other hand, 
worried that the 7 percent goal was unrealistically high because of the 
physical demands of their apprenticeship programs and because self-
identification is voluntary and persons with disabilities are reluctant 
to identify as disabled. For example, an industry association stated 
that this utilization goal would be particularly burdensome for the 
trucking industry because many individuals with disabilities are 
prohibited from driving commercial motor vehicles, and a local JATC 
stated that it would be difficult to place disabled individuals with 
its partner construction contractors because of their workers 
compensation insurance providers and the fact that a condition of their 
disability compensation may preclude them from working on a 
construction site. Some of these commenters recommended that the goal 
be phased in, or gradually increased over time. One company recommended 
that the Department observe each industry for two years and establish 
better-suited goals. Another commenter expressed concern with the 
proposed 7 percent utilization goal, stating that persons with 
disabilities are already protected from discrimination by existing 
Federal regulations and expressed doubt that utilization goals are 
attainable given geographic disparities as well as differing abilities 
and qualifications of those seeking employment. An industry association 
suggested the Department adopt the same goals as established by the 
OFCCP under section 503, which applies to Federal contractors and 
subcontractors. A national JATC commented that the Department should 
review the goal on an annual basis.
    As stated in the NPRM, the Department believes that a utilization 
goal for individuals with disabilities is a vital element that, in 
conjunction with other requirements of this part, will enable sponsors 
and Registration Agencies to assess the effectiveness of specific 
affirmative action efforts with respect to individuals with 
disabilities, and to identify and address specific workplace barriers 
to apprenticeship. Both the unemployment rate and the percentage of 
working-age individuals with disabilities who are not in the labor 
force remain significantly higher than that of the working-age 
population without disabilities. The establishment of a utilization 
goal for individuals with disabilities is not, by itself, a ``cure'' 
for this longstanding problem, but the Department believes that the 
establishment of this utilization goal could create more accountability 
within a sponsor's organization and provide a much-needed tool to help 
ensure that progress toward equal employment opportunity is achieved.
    The Department explained in great detail in the NPRM the process 
that OFCCP used when it issued revised regulations implementing section 
503 and established the same national utilization goal of 7 percent for 
individuals with disabilities for all covered contractors. OFCCP 
derived this utilization goal in part from the disability data 
collected as part of the American Community Survey (ACS). Although the 
definition of disability used by the ACS is not as broad as that in the 
ADA and proposed here, and therefore may not capture all of the 
individuals who would be considered disabled under this Final Rule, the 
Department has concluded, for reasons discussed extensively in the 
NPRM, that the ACS is the best source of nationwide disability data 
available today, and, thus, an appropriate starting place for 
developing a utilization goal. The Department, therefore, declines to 
change the goal, or to implement tiered goals that would not be 
reflective of the availability of individuals with disabilities.
    OFCCP arrived at the 7 percent figure by starting with the mean 
disability data for the ``civilian labor force'' and the ``civilian 
population'' across EEO-1 groups, based on the 2009 ACS data, which 
resulted in 5.7 percent as a starting point. This figure is the 
Department's estimate of the percentage of the civilian labor force 
that has a disability as defined by the ACS. However, the Department 
acknowledges that this number does not encompass all individuals with 
disabilities as defined under the broader definition in the ADA, as 
amended, and this part. Further, this figure most likely underestimates 
the percent of individuals with disabilities who are eligible for 
apprenticeship because it reflects the percentage of individuals with 
disabilities who are currently in the labor force with an occupation 
and individuals need not have an occupation or be in the labor force in 
order to be eligible for apprenticeship.
    The Department was also concerned that this availability figure did 
not take into account discouraged workers, or the effects of historical 
discrimination against individuals with disabilities that has 
suppressed the representation of such individuals in the workforce. 
OFCCP estimated the size of the discouraged worker effect by comparing 
the percent of the civilian population with a disability (per the ACS 
definition) who identified as having an occupation to the percent of 
the civilian labor force with a disability who identified as having an 
occupation. Though not currently seeking employment, it might be 
reasonable to believe that those in the civilian population who 
identify as having an occupation, but who are not currently in the 
labor force, remained interested in working should job opportunities 
become available. Using the 2009 ACS EEO-1 category data, the result of 
this comparison is 1.7 percent. Adding this figure to the 5.7 percent 
availability figure above results in the 7.4 percent, which OFCCP 
rounded to 7 percent. OA agrees that this calculation reflects the most 
accurate availability figure currently available, and therefore adopts 
the 7 percent utilization goal. Pursuant to proposed 30.7(c), which the 
Department adopts in this Final Rule, OA will review the goal 
periodically and update the goal as appropriate.
    The Department revises paragraph (a), however, to reflect that the 
utilization goal will apply to each major occupation group within a 
sponsor's apprentice workforce, rather than to each industry, as was 
proposed in the

[[Page 92062]]

NPRM. This is consistent with the changes adopted for the utilization 
analyses for race, sex, and ethnicity. The reasons for using major 
occupation groups, rather than industry, in the utilization analysis 
are addressed in the discussion of Sec.  30.5(c).
    In response to those commenters who advocated that sponsors should 
be able to derive their own availability figures for individuals with 
disabilities within the sponsor's relevant recruitment area, the 
Department notes that replicating the race, sex, and ethnicity goals 
framework would not be the most effective approach for the 
establishment of goals for individuals with disabilities. Sponsors 
establishing goals for minorities and women typically use the Special 
EEO Tabulation of census data to assist them. The results of the 
decennial census can be tabulated for hundreds of occupation categories 
and thousands of geographic areas. However, because the ACS disability 
data is based on sampling, and because the percentage of that sample 
who identify as having a disability is considerably smaller than the 
percentage that provide race and gender information, it cannot be 
broken down into as many job titles, or as many geographic areas as the 
data for race and gender. In addition, the race, sex, and ethnicity 
goals framework does not include consideration of discouraged workers 
in computing availability, a factor particularly important in the 
context of disability. Accordingly, the Department is retaining the 7 
percent national utilization goal and declines to allow sponsors to set 
their own goals based on availability in the relevant recruitment area.
    The Department also declines to adopt a sub-goal at this time. The 
commenters suggesting a sub-goal did not provide a clear methodology or 
data source for the identification of a sub-goal target. Moreover, 
establishing a sub-goal would, in many instances require sponsors to 
ask for detailed disability-related information, beyond the mere 
existence of a specific condition, so that the sponsor could determine 
whether an individual has a ``severe'' physical or mental impairment 
that is encompassed by the sub-goal. This does not mean that sponsors 
may not, on their own, for affirmative action purposes, establish 
appropriate mechanisms and goals to encourage the employment of 
individuals with significant or severe disabilities. However, these 
regulations do not include such requirements.
    As stated above, many sponsors were concerned that they would not 
be able to meet the 7 percent utilization goal because of the physical 
demands of their industry. First, the Department notes that the goal 
only applies to ``qualified individuals with disabilities,'' and the 
application of a utilization goal does not require or authorize a 
sponsor to hire an individual who is not eligible or qualified for 
apprenticeship. The objection to adopting a utilization goal at all, 
however, is based on the flawed notion that individuals with 
disabilities as a group are incapable of working in these jobs. As 
stated previously in this preamble, the Department acknowledges that 
some individuals with certain disabilities may not be able to perform 
some jobs, but this Final Rule does not require a sponsor to hire an 
individual who cannot perform the essential functions necessary for 
apprenticeship, or who poses a direct threat to the health or safety of 
the individual or others.
    Additionally, the goal is not a quota and failure to meet the goal 
will not, in and of itself, result in any violation or enforcement 
action. The Registration Agency will look at the totality of the 
sponsor's affirmative action efforts to determine whether it is in 
compliance with its affirmative action obligations under this section. 
As discussed below, if the sponsor has complied with the requirements 
of this part and no impediments to equal employment opportunity exist, 
then the fact that the sponsor does not meet the goal will not result 
in a violation.
    Lastly, some sponsors were concerned that the new utilization goal 
would be unduly burdensome for sponsors to comply with. A regional JATC 
commented that forcing sponsors to identify individuals with 
disabilities, especially mental or intellectual disabilities, puts a 
burden on sponsors if the program must hire a psychiatric professional 
to conduct evaluations.
    First, the Department notes that all sponsors covered by Sec.  
30.4(b) are currently required to maintain an AAP and conduct a 
utilization analysis for race, sex, and ethnicity, so the additional 
utilization analysis for individuals with disabilities will pose 
minimal burden, especially because the sponsor is not responsible for 
setting the utilization goal. Second, the identification of individuals 
within the apprenticeship workforce that have a disability is done 
through self-identification, and the sponsor should not be attempting 
to identify individuals with disabilities who do not self-identify. If 
an apprentice has an obvious visible disability (i.e., someone is blind 
or missing a limb), a sponsor may include that individual as an 
individual with a disability within its workforce analysis. Otherwise, 
a sponsor should be relying only on self-identification as the method 
for capturing disability within its apprenticeship workforce. A sponsor 
should also not be attempting to verify whether an apprentice does, in 
fact, have a disability. Further detail on how the self-identification 
mechanism should work is set forth in the discussion of Sec.  30.11, 
below.
    To further ease any burden upon sponsors associated with the 
implementation of the utilization goal for individuals with 
disabilities, sponsors will have additional time to come into 
compliance with these provisions. The revised compliance dates are 
detailed in paragraph 30.7(d)(2), below.
Paragraph 30.7(b): Purpose
    Proposed Sec.  30.7(b) explained that the purpose of the 
utilization goal for individuals with disabilities was to establish a 
benchmark against which the sponsor must measure the representation of 
individuals with disabilities in the sponsor's apprentice workforce and 
that the goal was to serve as an equal opportunity objective that 
should be attainable by complying with all of the affirmative action 
requirements of part 30.
    The Department received no comments on this specific paragraph. The 
Final Rule changes the reference from ``industry'' to ``major 
occupation group'' to be consistent with changes in other sections, and 
makes other non-substantive edits so the text of the regulation 
conforms more closely to the corresponding section of OFCCP's section 
503 regulations.
Paragraph 30.7(c): Periodic Review of Goal
    Proposed Sec.  30.7(c) stated that the Administrator of OA would 
periodically review and update the national utilization goal, as 
appropriate. The Department received one comment on this paragraph from 
a national JATC that expressed support for a fixed utilization goal but 
cautioned that because of the untested nature of the proposed 7 percent 
goal the Department should review the goal on an annual basis.
    The Department declines to adopt a set review period for the goal. 
This flexibility will enable the Administrator to review the goal 
whenever it is deemed necessary. Accordingly, the Department adopts 
paragraph (c) without change.
Paragraph 30.7(d): Utilization Analysis
    Proposed Sec.  30.7(d) set out the steps that the sponsor must use 
to determine

[[Page 92063]]

whether it has met the utilization goal. Similar to the utilization 
analysis required under Sec.  30.5 for race, sex, and ethnicity, 
proposed Sec.  30.7(d) stated that the sponsor must first conduct a 
review of its apprenticeship workforce to evaluate the representation 
of individuals with disabilities in the sponsor's apprentice workforce 
grouped by industry. The sponsor identifies the number of apprentices 
with disabilities based on voluntary self-identification by the 
individual apprentices. This figure would then be compared to the 7 
percent utilization goal to determine if the sponsor is underutilizing 
individuals with disabilities. Proposed Sec.  30.7(d)(3) required that 
the sponsor evaluate its utilization of individuals with disabilities 
in each industry group annually (or every two years, if it meets the 
conditions set forth in the proposed Sec.  30.4(e)).
    An advocacy organization supported the proposed disability 
workforce analysis requirements in Sec.  30.7(d)(2) because it would 
ensure that individuals with disabilities will be represented in all 
industries. A number of commenters, however, opposed the utilization 
analysis because it would require identifying those individuals within 
the sponsor's program that had a disability. Many commenters worried 
about asking applicants and apprentices to self-identify as having a 
disability and were concerned that a lack of self-identification would 
make it difficult for sponsors to meet the utilization goal. An 
industry association argued that although the D.C. Circuit upheld the 
OFCCP's adoption of a utilization goal for individuals with 
disabilities in the case of Associated Builders and Contractors, Inc. 
v. Shiu,\73\ the holding in that case did not justify extension of the 
identical data collection and utilization analysis in the 
apprenticeship context. Finally, a State Department of Labor sought 
clarification as to when, under proposed Sec.  30.7(d)(3), sponsors 
would be required to evaluate their utilization of individuals with 
disabilities and how that timing related to the timing for review of 
AAPs established in proposed Sec.  30.4(e).
---------------------------------------------------------------------------

    \73\ 773 F.3d 257 (D.C. Cir. 2014).
---------------------------------------------------------------------------

    Comments expressing specific concerns about asking individuals to 
self-identify are addressed later in the preamble under Sec.  30.11. In 
response to those commenters who expressed concerns with meeting the 
goal as a result of under-reporting by apprentices with disabilities, 
the Department concedes the possibility that self-reported data 
regarding disability, as with any demographic data employers maintain, 
will not be entirely accurate. While not perfect, the data that will 
result from the invitation to self-identify will nevertheless provide 
the sponsor and the Department with important information that does not 
currently exist pertaining to the participation of individuals with 
disabilities in the sponsor's applicant pools and labor force. This 
will allow the sponsor and the Department to better identify and 
monitor the sponsor's hiring and selection practices with respect to 
individuals with disabilities, and to more effectively ensure that the 
benefits of apprenticeship are accessible to individuals with 
disabilities. The Department again reminds sponsors that failure to 
meet the utilization goal for individuals with disabilities is not 
itself a violation of this Final Rule, and so sponsors will not be 
penalized if they fail to meet the goal because some apprentices with 
disabilities choose not to self-identify.
    As was the case for OFCCP in Associated Builders and Contractors, 
Inc. v. Shiu, the Department is concerned that individuals with 
disabilities have lower participation rates in the workforce and higher 
unemployment rates than those without disabilities. We therefore seek 
to advance the employment of qualified individuals with disabilities 
through this Final Rule. To do so is well within the Department's 
authority to ``formulate and promote the furtherance of labor standards 
necessary to safeguard the welfare of apprentices . . .'' \74\ In ABC 
v. Shiu, the court upheld the 7 percent national utilization goal 
established by OFCCP and stated that ``the agency adequately explained 
why the best available data did not allow it to create a tailored goal 
and why the uniform goal advances its regulatory objective.'' \75\ The 
Department sees no reason to depart from that analysis here.
---------------------------------------------------------------------------

    \74\ 29 U.S.C. 50.
    \75\ 773 F.3d at 265 (D.C. Cir. 2014).
---------------------------------------------------------------------------

    As we did for the workforce analysis for race, sex, and ethnicity 
(discussed in Sec.  30.5(b)), the Department is requiring that each 
sponsor conduct its apprentice workforce analysis for individuals with 
disabilities at the occupation level and its utilization analysis for 
individuals with disabilities at the major occupation level. This, 
again, will allow sponsors to be able to review their workforce at a 
more granular level, but will only require that utilization goals apply 
at the major occupation group level.
    With regard to the timing of the workforce analysis that sponsors 
must conduct under this section, this should be conducted at the same 
time that a sponsor performs its workforce analysis for race, sex, and 
ethnicity, pursuant to Sec.  30.5(b). As explained in revised paragraph 
30.7(d)(2)(ii), this process should be performed at each regular 
compliance review and no later than three years after a sponsor's most 
recent compliance review. Paragraph 30.7(d)(2) is revised to reflect 
this new schedule. Again, this schedule will apply uniformly across 
covered sponsors and will not depend on whether a sponsor has met its 
utilization goals.
    Furthermore, as mentioned above, the Department is allowing both 
existing and new sponsors additional time in which to implement the 
apprenticeship workforce analysis requirements for individuals with 
disabilities. Similar to the compliance dates established in Sec.  
30.5, an existing sponsor will have two years from the effective date 
of this Final Rule in which to incorporate the 7 percent utilization 
goal into its AAP and to conduct a workforce analysis under this 
section. Paragraph 30.7(d)(2)(iii)(A) is revised to reflect this 
change.
    Also, as with the workforce analysis for race, sex, and ethnicity, 
detailed in Sec.  30.5(b), a sponsor registered with a Registration 
Agency as of the effective date of this Final Rule will have up to two 
years from the effective date in which to conduct a conforming 
workforce analysis for individuals with disabilities, pursuant to Sec.  
30.7(d)(2). This section of the Final Rule also establishes that new 
sponsors registering after the effective date of this Final Rule will 
have two years from the date of their registration to complete their 
written AAP.
    Generally, the workforce analyses required by Sec. Sec.  30.5(b) 
and 30.7(d)(2) should be performed simultaneously. Following the 
initial workforce analysis, all covered sponsors will be required to 
conduct workforce analyses at each regular compliance review and again 
if they have gone three years since their last compliance review. The 
schedule of evaluations is discussed in more detail in paragraph 
(d)(3), below.
Paragraph 30.7(e): Identification of Problem Areas
    When the percentage of apprentices with disabilities in one or more 
industry groups was less than the utilization goal proposed in Sec.  
30.7(a), proposed Sec.  30.7(e) required that the sponsor take steps to 
determine whether and where impediments to equal opportunity exist. 
Proposed Sec.  30.7(e) explained that when making this determination, 
the sponsor must look at the results of its assessment of personnel 
processes and the

[[Page 92064]]

effectiveness of its outreach and recruitment efforts as required by 
proposed Sec.  30.9.
    The Department received a few comments in regards to paragraph (e). 
An advocacy organization commented that this type of self-education is 
important to raising sponsors' attention to the pool of individuals 
with disabilities that could contribute to and benefit from their 
apprenticeship program. An industry association suggested that the 
Department revisit the requirements of Sec.  30.7(e) as the proposed 
rule implied that failure to reach the utilization goal for individuals 
with disabilities meant that there must automatically be a barrier to 
equal employment. The commenter also requested examples of 
``impediments to equal opportunity'' and sought guidance on how 
sponsors would be able to identify and measure such impediments. A 
national JATC was concerned that such a review process would require 
the assistance of a professional. Another national JATC expressed 
concern that the regulations did not account for the fact that non-
attainment of the disability utilization goal does not mean that a 
program is discriminatory in its practices; rather, non-attainment 
could be that disabled individuals did not apply to the program, that 
they could not meet the requirements of the program, or they were 
unwilling to self-disclose disabilities.
    With the exception of two changes discussed below, the Final Rule 
adopts Sec.  30.7(e) as it appeared in the NPRM. The Department 
emphasizes that, if a sponsor is underutilizing individuals with 
disabilities, it does not mean that a problem area definitely exists or 
that the cause of the underutilization is discrimination. This finding 
simply serves as a notification to the sponsor that they must review 
their personnel processes and outreach to determine if such problem 
areas do exist. A sponsor is only required to engage in action-oriented 
programs, pursuant to Sec. Sec.  30.7(f) and 30.8, if it discovers 
problem areas during the course of this review. To reflect this 
understanding, the regulatory text is changed slightly to read ``the 
sponsor must take steps to determine whether and/or where impediments 
to equal employment opportunity exist'' (emphasis added). As for types 
of ``impediments to equal opportunity,'' these would be the same as the 
``barriers'' described in Sec.  30.4(a)(2) of this Section-by-Section 
Analysis. The Department also revises this paragraph in the Final Rule 
to indicate that utilization analyses will be conducted according to 
major occupation group, rather than industry, consistent with changes 
in other paragraphs.
Paragraph 30.7(f): Action-Oriented Programs
    In proposed Sec.  30.7(f), the NPRM stated that if, in reviewing 
its personnel processes, the sponsor identifies any barriers to equal 
opportunity, it would be required to undertake action-oriented programs 
designed to correct any problem areas that the sponsor identified. Only 
if a problem or barrier to equal opportunity is identified must the 
sponsor develop and execute an action-oriented program.
    The Department received no comments on this paragraph that have not 
already been addressed elsewhere, and so adopts proposed Sec.  30.7(f) 
without change.
Paragraph 30.7(g)
    Proposed Sec.  30.7(g) clarified that the sponsor's determination 
that it has not attained the utilization goal in one or more industry 
groups would not constitute either a finding or admission of 
discrimination in violation of part 30. The Department noted, however, 
that such a determination, whether by the sponsor or by the 
Registration Agency, would not impede the Registration Agency from 
finding that one or more unlawful discriminatory practices caused the 
sponsor's failure to meet the utilization goal and that, in that 
circumstance, the Registration Agency would take appropriate 
enforcement measures.
    The Department received no comments on this paragraph. Accordingly, 
the Department is only revising this paragraph consistent with other 
changes throughout this section to clarify that the utilization 
analysis will be performed according to major occupation group.
Paragraph 30.7(h)
    Finally, proposed Sec.  30.7(h) stated that the 7 percent 
utilization goal must not be used as a quota or ceiling that limits or 
restricts the employment of individuals with disabilities as 
apprentices. One commenter argued that the proposed 7 percent 
utilization goal was essentially a national hiring quota for 
individuals with disabilities. An industry association expressed 
concern that even though the Department stated that the proposed 7 
percent utilization rate for persons with disabilities was a ``goal,'' 
program sponsors may feel pressure to meet the goal and hire 
individuals who may not be as qualified as other applicants. A local 
JATC argued that the proposed disability utilization goal would invite 
claims of reverse discrimination and lawsuits by able-bodied persons 
who were not admitted to the program because of the inclusion of an 
applicant with a disability.
    The Department declines to make any changes to paragraph (h), as 
these comments are premised on a flawed understanding of the function 
of the disability goal. The Department has made clear, both in this 
paragraph and throughout the preamble, that the goal is not a quota and 
failure to meet the goal will not, in and of itself, result in any 
violation or enforcement action. Rather, a failure to meet the goal 
simply triggers a review by the sponsor of its employment practices to 
determine if impediments to EEO exist. The goal is intended to serve as 
a management tool to help sponsors measure their progress toward 
achieving equal employment opportunity for individuals with 
disabilities and does not require disability-based decision making. The 
Department recognizes that a failure to meet the 7 percent utilization 
goal does not necessarily mean that the sponsor is discriminating 
against individuals with disabilities and that there may be other 
explanations. It is for this reason that proposed Sec.  30.7(g) stated 
that a sponsor's determination that it has not attained the utilization 
goal in one or more job groups does not constitute either a finding or 
admission of discrimination in violation of this part. Finally, with 
regard to the comment fearing reverse discrimination actions, we note 
that the ADA, as amended, prohibits claims of discrimination because of 
an individual's lack of disability, and we interpret this Final Rule 
consistent with that.\76\
---------------------------------------------------------------------------

    \76\ 42 U.S.C. 12201(g).
---------------------------------------------------------------------------

Targeted Outreach, Recruitment, and Retention (Sec.  30.8)

    The Department proposed to revise the existing Sec.  30.8 entitled 
``Records'' and to move that language to proposed Sec.  30.12, as 
discussed later in the preamble. Proposed Sec.  30.8 instead replaced 
the current requirements related to outreach and positive recruitment 
discussed in Sec.  30.4(c) of the existing regulation by addressing the 
regulatory requirements related to targeted outreach, recruitment, and 
retention. Under proposed Sec.  30.8, when a sponsor is underutilizing 
a specific group or groups pursuant to proposed Sec.  30.6, and/or when 
a sponsor determines, pursuant to proposed Sec.  30.7(f), that there 
were impediments to equal opportunity for individuals with

[[Page 92065]]

disabilities,\77\ the sponsor was required to undertake targeted 
outreach, recruitment, and retention activities likely to generate an 
increase in applications for apprenticeship and improve retention of 
apprentices from the targeted group or groups and/or from individuals 
with disabilities as appropriate. These targeted activities would be in 
addition to the sponsor's universal outreach and recruitment activities 
required under Sec.  30.3(b)(3).
---------------------------------------------------------------------------

    \77\ As set forth in more detail in the discussion of Sec.  
30.7, the different ``triggers'' for engaging in action-oriented 
programs for race/sex versus disability are necessary because of the 
differences in labor market demographic data maintained for each. 
Because disability data is not available at the granular level that 
race/sex data is, and because there is not a data source for 
individuals with disabilities that matches exactly with the 
definition of disability found in the ADA, this Final Rule, like the 
Section 503 Final Rule, includes an additional step wherein sponsors 
must identify whether impediments to equal employment opportunity 
exist before the sponsor is required to engage in good faith efforts 
to correct the problem.
---------------------------------------------------------------------------

Paragraph 30.8(a): Minimum Activities Required
    Proposed paragraph Sec.  30.8(a)(1) set forth the minimum, specific 
targeted outreach, recruitment, and retention activities that the 
Department proposed to require of a sponsor that had found 
underutilization of a particular group or groups pursuant to Sec.  30.6 
and/or who had determined pursuant to Sec.  30.7(f) that there were 
problem areas with respect to its outreach, recruitment, and retention 
activities impacting individuals with disabilities. These activities 
included, but were not limited to: (1) Dissemination of information to 
community-based organizations, local high schools, local community 
colleges, local vocational, career and technical schools, career 
centers at minority serving institutions (including Historically Black 
Colleges and Universities, Hispanic-Serving Institutions, and Tribal 
Colleges and Universities), and other groups serving the underutilized 
group; (2) advertising openings for apprenticeship opportunities by 
publishing advertisements in newspapers and other media, electronic or 
otherwise, that have wide-spread circulation in the relevant 
recruitment area; (3) cooperating with local school boards and 
vocational education systems to develop and/or establish relationships 
with pre-apprenticeship programs inclusive of students from the 
underutilized groups, preparing them to meet the standards and criteria 
required to qualify for entry into apprenticeship programs; and (4) 
establishing linkage agreements enlisting the assistance and support of 
pre-apprenticeship programs, community-based organizations and advocacy 
organizations in recruiting qualified individuals for apprenticeship 
and in developing pre-apprenticeship programs. In the NPRM, the 
Department requested comments on whether there were circumstances under 
which sponsors would have difficulty completing any of these 
activities.
    In addition, to foster awareness of the usefulness of a sponsor's 
outreach, recruitment, and retention activities, proposed Sec.  
30.8(a)(2) also required the sponsor to evaluate and document the 
overall effectiveness of its outreach, recruitment, and retention 
activities after every selection cycle for registering apprentices. 
This review was designed to allow the sponsor to refine these 
activities as needed, as set forth in proposed Sec.  30.8(a)(3). 
Finally, proposed Sec.  30.8(a)(4) required the sponsor to maintain 
records of its outreach, recruitment, and retention activities and any 
evaluation of these activities.
    Several commenters supported the outreach, recruitment, and 
retention requirements in Sec.  30.8. Multiple advocacy organizations 
stated that these minimum steps are among the most effective 
approaches, are more effective and efficient than general outreach, and 
should be reasonable for every program to undertake. Many advocacy 
organizations expressed support for the inclusion of linkage agreements 
between sponsors and groups representing underutilized populations 
given their proven success in increasing participation of underutilized 
populations. In response to the Department's request for information on 
how the proposed rule's targeted outreach requirements to organizations 
that serve individuals with disabilities would impact sponsors, an 
advocacy organization for persons with disabilities stated that it 
would welcome the opportunity to form relationships with apprenticeship 
sponsors.
    Several commenters, on the other hand, asserted that the 
requirements in proposed Sec.  30.8 would be too burdensome for 
apprenticeship programs. Unions and JATCs stated that the proposed 
requirements would be a drain on their resources and time. A national 
JATC said that while disseminating information on job opportunities was 
not a significant burden, as apprenticeship programs already do so, 
partnering with other groups would add a lot of time and work to the 
program. The commenter recommended that the current outreach, 
recruitment, and retention requirements under 29 CFR part 30 remain the 
same because the requirements to formally document its recruitment 
efforts after every apprenticeship cycle, which are continuously 
occurring, would create even more burdens on their program. A number of 
JATCs and industry associations expressed concern about the proposed 
outreach, recruitment, and retention requirements and suggested that 
the Sec.  30.8(a) activities should be suggestions, rather than 
requirements, and that sponsors should be given more flexibility in 
deciding what activities are most effective. An SWA also supported 
giving sponsors greater flexibility to encourage creative and diverse 
mechanisms to diversify their workforce.
    The Department retains the four specific activities outlined in 
proposed Sec.  30.8(a)(1) in the Final Rule, as several comments 
reinforced the Department's belief that these were effective mechanisms 
for outreach, recruitment, and retention, and that sponsors who 
discover they are underutilized should be required to use them to 
attempt to correct their underutilization. The Department believes that 
these minimum requirements provide sponsors with enough guidance to be 
effective in improving their outreach methods, but still leaves 
sponsors with flexibility to decide on other, additional recruitment 
mechanisms. The Department further believes that the four minimum 
activities outlined in Sec.  30.8(a)(1) will not be overly burdensome 
for sponsors. As one sponsor pointed out, the requirements are largely 
representative of the kinds of good faith efforts the Department has 
required to date for a sponsor to meet its EEO obligations required in 
Sec. Sec.  30.3 and 30.4 of the current part 30.
    Many commenters stressed that retention was a major issue for women 
because they are often targets for isolation, harassment, 
discrimination, stereotyping, and a lack of training rotation on the 
job. An advocacy organization expressed concern with minority 
apprenticeship completion rates, stating that, in 2013, 30.3 percent of 
African Americans completed their program in the construction industry 
in comparison to 46.7 percent of whites. Some commenters suggested that 
the Department create a separate section in the rule to address 
apprentice retention specifically, which should include requirements 
that apprenticeship program sponsors: (1) Analyze their apprentice 
retention rates for women, people of color, and individuals with 
disabilities; (2) set forth in their written AAPs the specific 
retention activities they plan to take for the upcoming program year, 
as appropriate; (3) conduct exit interviews of each apprentice leaving 
the sponsor's

[[Page 92066]]

apprenticeship program prior to completion; and (4) implement policy 
and professional development practices designed to build staff capacity 
to support and serve traditionally underrepresented groups. Individual 
commenters recommended using members of the workforce that represent 
the marginalized populations to perform outreach to the particular 
underrepresented group and recommended that the Department encourage 
mentoring as a means for increasing retention.
    The Department recognizes the importance of retention activities in 
building greater diversity within apprenticeship programs, but declines 
to include these specific suggestions as mandatory. Many of the 
retention activities suggested by commenters were, in fact, already 
included in proposed Sec.  30.8(b). Furthermore, the Department 
anticipates that sponsors will evaluate their program's completion 
rates as part of their review of personnel processes under Sec.  30.9.
    An advocacy organization also recommended that language be added to 
Sec.  30.8 to require apprenticeship programs to work with their local 
workforce development system as a fifth required outreach, recruitment, 
and retention activity because the workforce development system serves 
individuals that are largely members of populations currently 
underrepresented in the registered apprenticeship system. Similarly, 
two State vocational rehabilitation (VR) agencies recommended that the 
Department revise Sec.  30.8(a) to specifically refer to State VR 
agencies.
    The Department notes that, pursuant to Sec.  30.3(b)(3)(i), all 
sponsors are already required to maintain a list of current recruitment 
sources that will generate referrals from all demographic groups within 
the relevant area, and that these sources could include One-Stop 
Centers. However, recognizing that the public workforce system can play 
a key role in linking sponsors to a diverse pool of apprenticeship 
candidates, Sec.  30.8(a)(1)(i) of the Final Rule includes reference to 
workforce system partners, including One-Stop Career Centers, as 
examples of entities to which sponsors must disseminate information 
regarding its apprenticeship program.
    Two advocacy organizations suggested that the Department add the 
language ``including those who serve underrepresented populations'' to 
each of the four requirements detailed in proposed Sec.  30.8(a)(1) 
through (4). The commenters stated that this language would not create 
an additional burden to apprenticeship programs and would signal the 
Department's intent to reach these populations, creating opportunities 
for further engagement with these groups.
    The Department agrees with these comments that the activities 
outlined in Sec.  30.8(a)(1) should focus more on what type of 
population these outreach and recruitment efforts are reaching, rather 
than prescribing the specific organizations that sponsors must reach 
out to. Accordingly, Sec.  30.8(a)(1)(i) of the Final Rule is revised 
to focus on disseminating information to organizations serving the 
underutilized group regarding the nature of apprenticeship, 
requirements for selection for apprenticeship, availability of 
apprenticeship opportunities, and the equal opportunity pledge of the 
sponsor. The Final Rule further specifies that these organizations may 
include community-based organizations, local high schools, local 
community colleges, and local vocational, career and technical schools, 
thus providing the sponsor with greater flexibility in deciding which 
organizations will serve as the best partners in reaching out to the 
specific community in which the sponsor is underutilized.
    Some commenters identified specific outreach, recruitment, and 
retention activities that they thought were not effective. A JATC 
stated that the proposed rule's newspaper advertising requirement in 
Sec.  30.8(a)(1)(ii) would be a waste of money and suggested that the 
sponsors be given more flexibility to advertise in media formats that 
are more affordable and more effective in reaching targeted audiences. 
An industry association argued that registered apprenticeship programs 
should be encouraged--not required--to establish partnerships with pre-
apprenticeship programs because this would effectively require 
apprenticeship programs to establish and operate their own pre-
apprenticeship programs. Many commenters were concerned about what they 
perceived to be a requirement that sponsors establish pre-
apprenticeship programs.
    The Department agrees that some of these requirements, as written, 
may be overly prescriptive for sponsors. The Department is therefore 
making two additional changes to Sec.  30.8(a). First, the Department 
will remove the requirement that sponsors advertise their 
apprenticeship opportunities in newspapers, referring instead to 
``appropriate media'' which have a wide circulation in the relevant 
recruitment areas. Second, the Department reaffirms, as it did 
originally in the preamble to the NPRM, that linkage agreements need 
not be highly formal, detailed arrangements, but rather are intended to 
be straightforward, dynamic partnerships that can be easily tailored to 
meet sponsors' needs. The Department also emphasizes that nothing in 
the Final Rule requires a sponsor to establish a pre-apprenticeship 
program; the rule only requires that sponsors leverage existing pre-
apprenticeship programs as sources for recruitment into the sponsors' 
programs. To make this clear, the Department is amending Sec.  
30.8(a)(1)(iv) to read: ``Establishment of linkage agreements or 
partnerships enlisting the assistance and support of pre-apprenticeship 
programs, community-based organizations, advocacy organizations, or 
other appropriate organizations, in recruiting qualified individuals 
for apprenticeship'' (emphasis added). Amending the ``and'' to ``or'' 
also clarifies that linkage agreements need not be entered into with 
all of these organizations, but with any of the types of organizations 
that may assist in increasing outreach to underutilized groups.
    Two national unions and a local JATC urged the Department to 
clarify whether the ERISA would permit joint labor-management programs 
governed by ERISA to use their resources to support pre-apprenticeship 
programs, such as by funding pre-apprenticeship programs or providing 
pre-apprenticeship training to the community. This comment was 
addressed within the larger discussion of how this rule coexists with 
ERISA fiduciary obligations in Sec.  30.1, above.
    A number of commenters also suggested examples of technical 
assistance that the Registration Agency could provide. For instance, 
several advocacy organizations recommended that the Department develop 
a standardized but customizable evaluation tool which would include the 
criteria that should be used to evaluate the effectiveness of such 
outreach, recruitment, and retention activity, and would allow sponsors 
to self-document deficiencies and self-identify remediation activities. 
Several advocacy organizations also recommended that the Department 
reference in the Final Rule and/or on its Web site the technical 
assistance tools and materials that can be used to facilitate sponsors' 
outreach, recruitment, and retention efforts, including those developed 
by Women in Apprenticeship Act (WANTO) grantees.
    As resources permit, the Department will gather effective tools for 
compliance assistance and will work to provide guidance to sponsors 
reflecting

[[Page 92067]]

recommended practices for outreach, recruitment, and retention.
Paragraph 30.8(b): Other Activities
    In addition to the activities required in proposed Sec.  30.8(a), 
as a matter of best practice, proposed Sec.  30.8(b) encouraged but did 
not require sponsors to consider other outreach, recruitment, and 
retention activities that may assist them in addressing any barriers to 
equal opportunity in apprenticeship. Such activities included but were 
not limited to: (1) Use of journeyworkers and apprentices from the 
underutilized group or groups to assist in the implementation of the 
sponsor's AAP; (2) use of individuals from the underutilized group or 
groups to serve as mentors and to assist with the sponsor's targeted 
outreach and recruitment activities; and (3) conducting exit interviews 
of each apprentice leaving the sponsor's apprenticeship program prior 
to receiving his/her certificate of completion to understand better why 
the apprentice is leaving and to help shape the sponsor's retention 
activities.
    Several advocacy organizations recommended that the Department make 
it mandatory for sponsors to conduct an exit interview with each 
apprentice leaving the program early, rather than an encouraged 
activity under Sec.  30.8(b), reasoning that it would help program 
sponsors better understand the reason for early departure. An advocacy 
organization also recommended that the Department add direct entry as 
an encouraged, but not required, approach to outreach. Further, this 
commenter suggested that the Department should encourage program 
sponsors to administer their own in-house programs to prepare the 
members of targeted classes for the program's entrance exam. The 
Department declines to incorporate these activities into the regulatory 
text. Nonetheless, sponsors are once again encouraged to use these, or 
any other outreach, recruitment, and retention method that it feels 
will be most useful in increasing the diversity of its program.
    Finally, some commenters put forth suggestions, or sought 
clarification, on how parties can work together to conduct outreach 
activities. An industry association recommended that the Department 
give smaller programs the option to pool their outreach efforts and 
have their efforts be executed by a single entity or a third party. An 
industry association stated that, while they do not oppose the proposed 
four required recruitment activities, association-sponsored programs 
that rely primarily on their employer members to supply apprentices to 
chapter programs should be entitled to rely on the outreach and 
recruitment efforts of the actual employers of the apprentices in 
question. In such circumstances, this commenter suggested that 
association program sponsors should be exempted from requirements of 
Sec.  30.8, and/or should be permitted to rely on the affirmative 
action efforts that their participating employer members have engaged 
in to establish the necessary outreach and recruitment efforts.
    Sponsors are encouraged to work with each other, with their 
employers, with outside parties and organizations, and with industry 
groups and consortia, as appropriate, to improve the effectiveness of 
their outreach and recruitment efforts. Ultimately, however, it will be 
the sponsor's responsibility to ensure that its program is meeting the 
standards established in this Final Rule. The Final Rule does not 
provide for exemptions for joint-programs, and the Department declines 
to include one, for the reasons discussed in previous sections 
addressing the joint sponsor issue.

Review of Personnel Practices (Sec.  30.9)

    Proposed Sec.  30.9 required that any sponsor subject to the AAP 
requirements in this proposed rule (i.e., those with five or more 
apprentices who are not otherwise exempt) must review its personnel 
processes on at least an annual basis to ensure that it is meeting its 
obligations under part 30.
Paragraph 30.9(a)
    Several advocacy groups supported the proposed annual personnel 
processes review requirements under Sec.  30.9 and recommended that it 
would be beneficial to involve apprentices and journeyworkers in the 
review. Another advocacy group supported the proposed proactive review 
approach in Sec.  30.9 and recommended reviewing affirmative action 
measures as frequently as monthly during the first year, making the 
results of such reviews public, and involving community stakeholders in 
the reviews.
    In contrast, several commenters disagreed with the annual review 
requirements. A State Department of Labor asserted that the proposed 
annual review of personnel process may be excessive and costly and 
could deter the opening and expansion of apprenticeship programs. A 
national JATC stated that although personnel process reviews were good 
business practice, the reviews should not be required every year. 
Instead, the JATC recommended reviews only in the event that data 
indicate a deficiency in certain demographics and that the review would 
be a part of the effort to correct the deficiency. An industry 
association requested the Department eliminate the requirement that 
program sponsors review personnel practices every year and instead 
recommended that reviews be conducted on an ``as needed'' basis or no 
less than every 3 years. Commenting that sponsors do not indenture new 
participants every year, a State Department of Labor recommended that 
the Department require personnel process reviews only in advance of 
recruitment and that sponsors maintain records of these reviews to 
supply to the Registration Agency upon request.
    In the NPRM, the Department commented that this requirement was a 
good business practice that many entities should already be conducting 
themselves to help determine whether they are in compliance with the 
EEO obligations that they have undertaken under current part 30. 
Indeed, the proposal drew upon provisions in the existing regulations, 
such as those providing for ``periodic audits of affirmative action 
programs and activities'' set forth under current Sec.  30.4(c)(10). We 
disagree with the commenter suggesting that such reviews should occur 
only when a sponsor is underutilized in women or a particular racial/
ethnic group. This is because the aim of ensuring that an 
apprenticeship program is operating free from discrimination goes 
beyond the simple numbers of individuals from various protected groups, 
and discrimination can exist absent a finding of underutilization. For 
instance, a careful review of personnel policies at the program, 
industry, and occupational level can uncover occupational segregation 
in which women and/or minorities are more likely to be in lower paying 
occupations than higher paying occupations, as well as unequal 
treatment in compensation, work assignments, performance appraisals, 
discipline, the handling of accommodation requests--all of which are 
important elements of equal employment opportunity that may go largely 
undetected in utilization analyses. Indeed, the idea that an AAP is 
purely numerical-driven helps to feed the flawed notion that it 
constitutes ``quotas.'' The Final Rule is revised to clarify that these 
reviews are required whether or not there is underutilization, and that 
this review must look at program, industry, and occupational policies 
and practices to fully examine

[[Page 92068]]

whether there are impediments to equal employment opportunity.
    We understand the concerns of commenters asserting that an annual 
review may be burdensome and serve to discourage interest in new 
entities creating apprenticeship programs, but have concluded that this 
review is a valuable exercise for sponsors to follow so that they can 
uncover any barriers to EEO within their programs. One commenter 
suggested that AAP reviews should include employment practices as well 
as personnel processes and administration of the program, reasoning 
that diverse work assignments and rotation among work processes are 
critical to apprenticeship training. The commenter said that creating 
record systems to capture actual on-the-job training and maintaining 
those records throughout the course of an apprenticeship is necessary 
to ensure quality training. The proposed rule (and in turn the Final 
Rule) incorporated these ideas, listing a number of employment 
practices that would be part of the review in Sec.  30.9, and the 
recordkeeping requirement of Sec.  30.12 requires retaining information 
relative to the operation of the apprenticeship program, specifying a 
number of employment actions relevant to apprenticeship including 
``hours of training provided.''
    Several commenters requested clarification of the requirements in 
proposed Sec.  30.9 as they would relate to group sponsors. A national 
union and a national JATC stated that proposed Sec.  30.9 does not 
distinguish between JATCs and employers and, thus, imposes obligations 
on JATCs that are inapplicable to these programs since they do not 
employ apprentices or individuals seeking to be apprentices. The 
commenters stressed that because JATCs do not promote apprentices or 
establish wages, only the employers have the ability and obligation to 
address harassment and discrimination affecting recruitment and 
retention. Specifically, an industry association recommended that the 
Department remove the requirements in Sec.  30.9(a), reasoning that the 
requirements to review the listed personnel practices would be 
impossible for joint employer apprenticeship programs in the 
construction industry to meet. The commenter stressed that construction 
apprentice programs provide training to apprentices who at various 
times work for different construction employers, all of whom have 
separate employment policies and procedures. The commenter reasoned 
that the construction apprentice programs have no ability to monitor 
employment policies or procedures of each individual employer.
    The Final Rule requires the review of all sponsors. As discussed in 
several previous sections raising the issue of how the obligations will 
apply to group sponsors, we recognize that certain personnel actions 
may be undertaken by participating employers, rather than the sponsors 
themselves. In such cases, the reviews may correspond to the structure 
of the sponsor's program, but in keeping with historical practice and 
provisions of the existing rules, sponsors will need to coordinate with 
the participating employers in order to ensure that the sponsors are 
not coordinating apprenticeship programs with employers that are 
actively discriminating against the apprentices placed there. OA will 
provide further guidance modeling what an appropriate review will look 
like under these regulations.
    An industry association requested clarification on how penalties 
would be assessed in the event of noncompliance with Sec.  30.9. In 
particular, the commenter asked whether a penalty would be assessed 
against the sponsor entity or the individual EEO officer designated by 
the sponsor as ``responsible'' and ``accountable'' for overseeing and 
implementing the sponsor's AAP, per proposed Sec.  30.3(b)(1). As has 
been the case historically, OA's interest is in apprenticeship programs 
that are successful--in the development of apprentices, employers, and 
in the promotion of equal employment opportunity. To that end, OA 
concentrates its resources on providing technical assistance so 
sponsors comply in the first place, and in the event violations occur, 
having sponsors voluntarily correct them. The latter part is embodied 
in the Final Rule's discussion of compliance evaluation findings at 
Sec.  30.13(b), below. However, if sponsors refuse to correct 
deficiencies identified, OA ultimately may seek to deregister the 
program per Sec.  30.15 of the Final Rule.
    Finally, as with previous sections describing AAP obligations, the 
Final Rule adds a new paragraph to Sec.  30.9, at 30.9(a)(1), 
describing when sponsors must come into compliance with the obligations 
specified therein. In short, those who are already sponsors of 
registered apprenticeships as of the effective date of this rule will 
have two years to come into compliance with this section. Sponsors who 
register apprenticeship programs for the first time after the effective 
date of the rule will have two years from the date of registration to 
comply with this section.
Paragraph 30.9(b)
    Proposed Sec.  30.9 also required a sponsor to retain records of 
its annual review of personnel practices, and to identify any 
modifications that the sponsor has made or plans to make as a result of 
this review. A SWA requested clarification on the proposed Sec.  
30.9(b) requirement that program sponsors ``include a description of 
its review.'' The commenter stated that the language was unclear as to 
whether the rule required the sponsor to detail when and how steps were 
conducted and present its findings, or if the program sponsor was 
required to publish the procedure used for the review. Generally 
speaking, the memorialization of the review could include both of these 
things, but the focus should be on the former--how, when, and which 
personnel processes were reviewed, as well as any modifications made as 
a result of this review. As stated above, OA will provide further 
guidance modeling what an appropriate review would look like under this 
section, including a model written AAP.
    Finally, a commenter requested that the Department remove the 
proposed Sec.  30.9(b) requirement that sponsors include descriptions 
of these reviews in their written AAPs, reasoning that personnel 
processes may need to be revised frequently and should not be tied to 
AAP review schedules. Furthermore, the commenter argued that these 
reviews of personnel processes may be difficult for the Registration 
Agencies to monitor because there would be little consistency among 
sponsors as to how they perform the review.
    As to the first point, we first clarify that not all personnel 
process revisions need to be retained, but only those made to the 
program ``as a result of its review'' required by Sec.  30.9(a), that 
is, the review for EEO compliance. We note that also this review under 
Sec.  30.9(a) occurs annually and the schedule for updating the written 
AAP is less frequent, occurring at each compliance evaluation and then 
again three years later if there has been no intervening compliance 
evaluation. As a matter of best practice, we would expect the sponsor 
to memorialize any changes made to their personnel practice at the time 
they are being made, but OA will measure compliance by whether the 
sponsor has memorialized the changes in its written AAP. While updating 
the written AAP occurs not less than every three years, each update 
should include the results of the reviews from each year since its last 
written AAP. As for the point regarding consistency, as stated above,

[[Page 92069]]

OA will provide models for what the review should include, which should 
help to promote some consistency.

Selection of Apprentices (Sec.  30.10)

    Under the existing section covering selection of apprentices, Sec.  
30.5, sponsors could select any one of four methods of selecting 
apprentices: (1) Selection on the basis of rank from pool of eligible 
applicants; (2) random selection from pool of eligible applicants; (3) 
selection from pool of current employees; or (4) an alternative 
selection method which allows the sponsor to select apprentices by 
means of any other method including its present selection method, 
subject to approval by the Registration Agency. Alternative selection 
methods could include, for example, the use of interviews as one of the 
factors to be considered in selecting apprentices, pre-apprenticeship 
programs, ``direct entry'' programs,\78\ or a combination of two or 
more selection methods.
---------------------------------------------------------------------------

    \78\ Under this selection method, the application process is 
waived so that qualified applicants can enter directly into an 
apprenticeship program, where the individual applicant demonstrates 
specific education and/or skills previously attained.
---------------------------------------------------------------------------

    Proposed Sec.  30.10 (renumbered due to reorganization of this 
part) sought to simplify the current regulatory requirements related to 
procedures used by sponsors to select apprentices to adopt any method 
for selection of apprentices, provided that the method used: (1) 
Complies with the UGESP at 41 CFR part 60-3; (2) is uniformly and 
consistently applied to all applicants for apprenticeship and 
apprentices; (3) complies with the qualification standards set forth in 
title I of the ADA; and (4) is facially neutral in terms of race, 
color, religion, national origin, sex, sexual orientation, age (40 or 
older), genetic information, and disability. Commenters expressed 
varying views, some general and some specific, on the proposed 
revisions.
    With regard to general comments, a State JATC and an industry 
association supported the streamlined approach for apprenticeship 
programs articulated in Sec.  30.10 and stated that the proposed rule 
would provide greater flexibility to apprenticeship programs in their 
selection methods. The State JATC argued that the current approach 
requiring program sponsors to utilize one apprenticeship selection 
process prevents programs from attracting a broader range of applicants 
because it does not account for factors like geographic location, 
wherein one selection method may be suitable for one location, but not 
another. The JATC reasoned that the ``one size fits all'' approach 
disrupted the administration of intake practices at their training 
centers and was ineffective at reaching out to potential apprentices. 
Many commenters further supported the proposed requirement that 
sponsors' selection method(s) be facially neutral in terms of race, 
color, religion, national origin, sex, sexual orientation, age (40 or 
older), genetic information, and disability (Sec.  30.10(b)(4)), as 
well as the requirement that sponsors must evaluate the impact of their 
selection procedure(s) on race, sex, and ethnic groups (Hispanic or 
Latino/non-Hispanic), but some requested that gender identity, 
pregnancy, and caregiver status be added to this list. We decline to do 
so, for reasons previously provided.
    However, several commenters generally preferred the current 
requirements relating to selection of apprentices because they were 
specific and descriptive, and expressed concern that the proposed 
regulations were lacking in this regard and would not encourage or 
enable apprentice selection procedures that are more equitable than the 
processes already in use by apprenticeship programs. In addition, 
several commenters expressed concern that proposed Sec.  30.10 would 
impose a significant burden upon sponsors. An SWA argued that the 
proposed regulations would require expenditure of financial and human 
capital resources to determine if their selection procedures meet the 
compliance requirements of UGESP, Title I of the ADA, and EEOC 
regulations. Another State agency expressed concern that the 
requirement to comply with UGESP regulations may drive away potential 
sponsors who find the administration of the regulation overly 
burdensome.
    As to the burden concern connected with familiarization of the 
UGESP, we note that the existing regulations required that sponsors 
follow the procedures set forth in UGESP when they were selecting on 
the basis of rank from a pool of eligible applicants or any alternative 
selection methods using qualification standards.\79\ The proposed 
regulation was therefore in keeping with the existing regulations in 
that respect, and thus should not add any additional burden.\80\ 
Relatedly, with regard to some commenters' preference for previous 
selection models, the Final Rule does not prevent sponsors from using 
the same selection devices they've used under the previous regulations 
if they prefer to do so, so long as these selection devices do not 
discriminate as specified in this part. An industry association 
recommended language like this in the regulatory text, but given that 
references to ``the previous edition of CFR 29 part 30'' will soon 
become obsolete, we believe the guidance stated here is sufficient.
---------------------------------------------------------------------------

    \79\ See existing 29 CFR 30.5(b)(1), 30.5(b)(4)(B).
    \80\ A third selection procedure in the existing regulations, 
selection from a pool of current employees, did not include a 
requirement for UGESP compliance, but this is largely because such 
selections are frequently based on seniority, and there is built 
into UGESP an exemption for bona fide seniority systems. 41 CFR 60-
3.2(C). The fourth selection procedure, random selection, also does 
lend itself to analysis under UGESP.
---------------------------------------------------------------------------

    Numerous commenters recommended that the Department explicitly 
state that sponsors are permitted and encouraged to implement a 
different selection procedure(s) or extend or reopen selection periods 
if the initial selection procedure or period was not effective in 
complying with EEO requirements and/or making progress towards 
affirmative action goals. The proposed rule is broadly worded in order 
to provide flexibility to sponsors so that they may use the selection 
method or methods that fit their program, including any of the methods 
included in the formal rule. Thus clarified, there is no need to add 
this proposed wording to the rule.
    Some commenters addressed direct entry programs as a selection 
procedure. An industry association expressed support for the proposed 
rule's mention of direct entry programs as a potential selection 
processes, commenting that many of its members preferred this method. 
An advocacy organization also supported the Department's express 
allowance of direct entry programs to apprenticeship selection, stating 
that it was an effective method for improving inclusion of 
underrepresented groups. In the NPRM and in this preamble, the 
Department has underscored that the flexible approach in the proposed 
Sec.  30.10 would permit sponsors to use direct entry as a selection 
method, but does not believe that this approach must be explicitly 
mentioned in the language of the rule above other methods.
    One national JATC was concerned that the proposed rule's treatment 
of direct entry processes as a selection procedure would require them 
to discontinue using their direct entry program. It argued that direct 
entry methods should not be treated as selection procedures. The 
commenter asserted that although the proposed rule recognized direct 
entry programs as an acceptable selection procedure, the language in 
the preamble requiring that selection methods apply ``to all applicants 
for apprenticeship and

[[Page 92070]]

apprentices'' would result in apprenticeship programs not being able to 
obtain apprentices from any other source. The commenter stressed that 
its direct entry apprenticeship program was meant to supplement 
existing pools of applicants, not to be the sole entry into the 
apprenticeship program. In a similar vein, an industry association 
asked the Department to clarify that pre-apprenticeship programs are 
not required to be an exclusive source of apprentice recruitment, and 
suggested clarifying language to proposed Sec.  30.10(b)(2) to address 
this. A State JATC stated that with the increasing potential for non-
union apprenticeship programs, union apprenticeship programs should be 
permitted to employ more than one intake method to ensure that union 
apprenticeship programs would survive.
    We have considered the commenters' points, and have clarified the 
regulatory text in response. The proposed Sec.  30.10(b)(2) stated that 
``[t]he selection procedure must be uniformly and consistently applied 
to all applicants and apprentices.'' One reading of that language is 
that sponsors must use only one selection procedure; that was not the 
intent. The intent, as stated in the NPRM preamble, was to allow 
sponsors flexibility to use one or more selection procedures, and that 
the selection procedures must be uniformly and consistently applied to 
those applicants within each procedure. To clarify this point, the 
Department has revised ``method'' and ``procedure'' to include the 
plural as appropriate throughout this provision. The Department has 
also revised Sec.  30.10(b)(2) by adding ``within each selection 
procedure utilized.''
    A few commenters asked the Department to clarify how sponsors 
should comply with UGESP requirements. An SWA stated that the inclusion 
of UGESP and ADA regulations leave program sponsors with no clear idea 
of what is acceptable. An industry association echoed these comments 
and suggested that the Department should clarify that apprenticeship 
qualifications derived from the 29 CFR part 29 rules on apprenticeship 
standards are consistent with the UGESP. A State agency and an industry 
association stated that the UGESP regulations are complex and requested 
clarification on how the requirements would be applied to 
apprenticeship programs. For example, a State agency stated that 41 CFR 
part 60-3 requires validation of selection procedures but the proposed 
rule did not state how this provision would be applied. The commenter 
also raised a further question suggesting that the implementation of 
this requirement to follow the UGSEP procedures could be complicated 
for group sponsors. The commenter stated that 41 CFR part 60-3 applies 
to individual employers with Federal contracts, whereas apprenticeship 
programs may or may not be individual employers. In particular, this 
commenter said that in the construction trade often sponsors are a 
joint apprenticeship committee or non-joint committee. The commenter 
stated that the apprenticeship program sponsors develop the selection 
procedures and the apprenticeship compliance review is conducted on the 
sponsor not the individual employer. Therefore, the commenter asserted 
that the Department's reference to UGESP must be clarified.
    As noted above, under the current provisions addressing selection 
procedures, program sponsors, whether individual or group sponsors, are 
already required to comply with those regulations under the current 
part 30. In addition, as clarification, the procedures in 41 CFR part 
60-3 are not limited to individual employers with Federal contracts; 
rather they provide a uniform framework to a variety of entities for 
the proper use of tests and other procedures. Nonetheless, the 
Department expects to provide guidance to stakeholders in order to 
facilitate implementation of the new rule.
    Other commenters also encouraged the Department to provide 
guidance. An advocacy organization suggested that the Department should 
issue guidance on best practices in selection procedures. The commenter 
stated that this guidance should include references to linkages with 
pre-apprenticeship programs as an eligible pool of workers, as well as 
``analysis of selection procedures, such as relying on interviews or 
base apprenticeship program selection on a homogeneous pool of current 
candidates that can reinforce underrepresentation the regulations seek 
to remedy.'' An individual commenter suggested that the Department 
provide uniform guidelines on employee selection using the process that 
created the Advisory Committee on Apprenticeship's guidance on quality 
pre-apprenticeship programs. Numerous commenters recommended that the 
Department establish guidelines for standardizing direct entry into 
apprenticeships for graduates of pre-apprenticeship programs that 
adhere to the quality framework to be set out in Sec.  30.2. As stated 
throughout, the Department anticipates issuing technical assistance 
guidance in advance of the applicable effective and/or compliance dates 
of this rule, and will give strong consideration to incorporating these 
specific requests.
    Numerous advocacy organizations suggested that the regulations 
should explicitly require that skills requirements, including strength 
and/or physical abilities tests or standards that are used to screen 
and/or rank apprenticeship candidates, must be related to and necessary 
for the actual on-the-job performance requirements and must meet the 
requirements listed in the current regulations at Sec.  
30.5(b)(1)(iii). Some of these commenters reasoned that these tests had 
sometimes been used to exclude certain groups of applicants. In 
response, the Department notes that the requirements of current Sec.  
30.5(b)(1)(iii) are carried forward by the requirement that the use of 
the selection procedure comply with the UGESP in 41 CFR part 60-3, as 
well as the standard non-discrimination obligations set forth in Sec.  
30.3.
    Finally, some advocacy organizations stated that, if a program 
sponsor wanted to maintain a selection procedure that resulted in an 
adverse impact to underrepresented groups, it must demonstrate there is 
no alternate procedure available to meet the business necessity. This 
comment is already addressed by the rule, as it generally states the 
obligations for employers under the UGESP whose selection procedure(s) 
have resulted in an adverse impact. The Department notes that the term 
``underrepresented groups'' is not necessarily synonymous with 
``protected groups,'' under the rule, and clarifies that UGESP applies 
only to race, sex, and ethnic groups.

Invitation To Self-Identify as an Individual With a Disability (Sec.  
30.11)

    The Department proposed to move the language in current Sec.  30.11 
entitled ``Complaint procedure,'' to Sec.  30.14, and to add a new 
Sec.  30.11 entitled ``Invitation to Self-Identify as an Individual 
with a Disability.'' This section of the NPRM proposed to require 
sponsors required to maintain an AAP to invite applicants for 
apprenticeship to voluntarily self-identify as an individual with a 
disability protected by this part at three stages: (1) At the time they 
apply or are considered for apprenticeship; (2) after they are accepted 
into the apprenticeship program but before they begin their 
apprenticeship; and (3) once they are enrolled in the program. 
Thereafter, proposed Sec.  30.11 required sponsors to remind 
apprentices yearly that they may voluntarily update their disability 
status, thereby allowing those who have subsequently become disabled or 
who did not wish to self-

[[Page 92071]]

identify during the application and enrollment process to be counted. 
Proposed Sec.  30.11 also clarified that sponsors would not be 
permitted to coerce individuals to self-identify, required that 
sponsors maintain self-identification information in a confidential 
manner, and emphasized sponsors' continuing responsibility to take 
affirmative action with respect to known disabilities and to refrain 
from discriminating against individuals with disabilities.
    The Department received a number of comments regarding the 
requirement to invite self-identification. Many commenters opposed to 
the requirement argued that applicants or apprentices would not choose 
to self-identify and that this would result in inaccurate data. For 
example, unions worried that apprentices and trainees would be 
reluctant to disclose disabilities, particularly those working in the 
construction industry where the work often requires certain physical 
capabilities. These commenters also opposed any penalty that would be 
applied to sponsors for failing to meet their utilization goal for 
individuals with disabilities when the failure to reach the goal could 
be due to apprentices and applicants choosing not to self-identify. A 
number of other commenters, including SWAs, also questioned the 
accuracy of the data produced by self-identification and requested 
clarification on the proper disability eligibility determination 
procedures, including how apprentices would know if they have an 
eligible disability and how sponsors can determine if the individual 
has an eligible disability. One commenter suggested that sponsors be 
permitted to track and report applicants or apprentices who request and 
document that they need accommodations for a disability, even if they 
have not voluntarily self-identified.
    The Department is retaining the requirement to invite self-
identification in the Final Rule. We concede the possibility that there 
may be underreporting of individuals with disabilities reporting as 
such, especially at the beginning when the requirement is new. The 
Department does not think, however, that this is a sufficient reason to 
remove the requirement to invite self-identification. While not 
perfect, the data that will result from this requirement will provide, 
for the first time, some degree of quantitative data regarding the 
participation of individuals with disabilities in the sponsor's 
apprenticeship workforce and applicant pools. This, in turn, should 
allow the sponsor and the Department to better identify, monitor, and 
evaluate the sponsor's recruitment and employment practices with 
respect to individuals with disabilities. We also believe that the 
response rate to the invitation to self-identify will increase over 
time, as people become accustomed to the invitation and workplaces 
become more welcoming to individuals with disabilities. The use of 
standardized language issued by the Administrator in the invitation 
will also reassure applicants that the request is routine and executed 
pursuant to obligations created by OA, and will hopefully also increase 
the response rate. Sponsors should also work to develop an inclusive 
and welcoming culture and provide support for its apprentices and 
applicants with disabilities. OA will provide technical assistance and 
guidance regarding methods for increasing participation in the self-
identification process.
    Additionally, the standardized invitation language contains 
information to help individuals know if they have, or had, a 
disability. Sponsors should accept the identification provided by the 
individual without seeking to further verify the nature of the 
individual's disability. The standardized language proposed in the 
NPRM, and adopted in the Final Rule, prescribes a narrow inquiry so as 
to minimize privacy concerns and the possibility of misuse of 
disability-related information. The required invitation asks only for 
self-identification as to the existence of a ``disability,'' not as to 
the general nature or type of disability the individual has, or the 
nature or severity of any limitations the individual has a result of 
their disability.
    Furthermore, the Department reiterates that failure to meet the 
utilization goal for individuals with disabilities will not, by itself, 
result in any violations of this part. Therefore, even if apprentices 
with disabilities choose not to self-identify, the sponsor would not be 
subject to any enforcement actions as a result of its underutilization. 
Again, failure to meet the goals would simply require the sponsor to 
assess whether impediments to equal opportunity exist in its program. 
If a sponsor discovers that apprentices are refusing to self-identify, 
the sponsor could note that as a possible reason for its 
underutilization, and also attempt to take steps that would encourage 
apprentices to feel more comfortable self-identifying. We note that 
OFCCP has published on its Web site a video explaining why job 
applicants and employees are asked to voluntarily self-identify if they 
have a disability under Section 503, the important role that self-
identifying plays in ensuring equal employment opportunity for 
individuals with disabilities, and offering employers the option of 
disseminating the video to their applicants and employees as guidance 
to increase self-identification.\81\
---------------------------------------------------------------------------

    \81\ See Office of Federal Contract Compliance Programs: 
Disability Inclusion Begins with You, available at https://www.dol.gov/ofccp/SelfIdVideo.html (last accessed May 9, 2016).
---------------------------------------------------------------------------

    With regard to the question of sponsors identifying individuals 
with disabilities who do not self-identify, the Department agrees that 
it is important that the reporting of disability demographic 
information be as accurate as possible. The Department therefore 
believes that it is appropriate to allow sponsors to identify an 
individual as having a disability for the purposes of Sec.  30.7, if 
the individual does not voluntarily self-identify when: (1) The 
disability is obvious (e.g., someone is blind or missing a limb) or (2) 
the disability is known to the sponsor (e.g., an individual says that 
he or she has a disability or requests reasonable accommodation that is 
clearly related to a disability). This is consistent with the approach 
that OFCCP has used for disability identification in its Section 503 
program, as well as the approach used to identifying ethnicity for 
those who have not disclosed under its Executive Order 11246 
program.\82\ The Department believes that this approach strikes the 
appropriate balance between the privacy concerns of those with 
disabilities and the need for reporting information to be as accurate 
as possible. Sponsors may not guess or speculate when identifying an 
individual as having a disability. Nor may they assume that an 
individual has a disability because he or she ``looks sickly'' or 
behaves in an unusual way. As one commenter suggested, a sponsor may 
also include individuals who request reasonable accommodations as 
individuals with disabilities, even if those individuals choose not to 
self-identify.
---------------------------------------------------------------------------

    \82\ See http://kb.dol.gov/DOLArticlePage?agency=OFCCP&parentCatValue=Employer&article=ka1i0000000WEq1AAG (last accessed June 21, 2016).
---------------------------------------------------------------------------

    Some commenters, including JATCs and a local union, asserted that 
the proposed Sec.  30.11 requirements would place additional human 
resources, reporting, and cost burdens on apprenticeship programs and 
would delay the processing of applications. A State agency recommended 
that the Department should not require program sponsors to request that 
individuals self-

[[Page 92072]]

identify for one year and that the Department should take additional 
time to work through an implementation strategy for the new 
requirements. The commenter also stated that additional guidance and 
technical assistance would be necessary prior to sponsors implementing 
the requirements in Sec.  30.11.
    To ease the burden on sponsors in implementing this provision, the 
Department is giving sponsors more time to come into compliance with 
this provision, as detailed below in new paragraph 30.11(h). The 
Department will provide technical assistance to sponsors during the 
transition time. As discussed above, the Department is also prescribing 
the language that sponsors must use when inviting apprentices or 
applicants to self-identify. Sponsors, therefore, will not need to 
spend time creating their own self-identification language. The 
Department also notes that application processing need not be 
significantly slowed as a result of including the self-identification 
invitation form. As the Final Rule states that the invitation must be 
detachable from the application for apprenticeship, the applicant's 
self-identification form can be reviewed for data analysis purposes at 
a later time and need not be reviewed in conjunction with the 
application for apprenticeship.
Paragraph 30.11(a): Pre-Offer
    Proposed Sec.  30.11(a) required the sponsor to invite each 
applicant to voluntarily self-identify as an individual with a 
disability at the time they apply for or are considered for 
apprenticeship. Proposed Sec.  30.11(a) further explained that the 
invitation may be included with the application materials, but must be 
separable or detachable from the application for apprenticeship and 
that the sponsor was required to use the language prescribed by the 
Administrator, pursuant to Sec.  30.11(b).
    Multiple commenters expressed concern with the pre-offer 
invitation, claiming that it conflicted with the ADA and its 
implementing regulations. One commenter requested that the term 
``voluntarily'' be inserted prior to ``inform the sponsor,'' as is 
currently the case under Section 30.11(1)(c). A Member of Congress 
asserted that, despite the EEOC's position that invitations to self-
identify as part of an AAP would not violate the ADA, individuals could 
still pursue litigation against employers under the ADA. A number of 
commenters, including a company and a State agency, remarked that 
inquiring about an individual's disability status, particularly at the 
pre-offer stage, could conflict with state law as well. An industry 
association asked how a person's status as an individual with a 
disability can be used for affirmative action purposes if it cannot be 
used by hiring managers in the decision-making process.
    As detailed in the NPRM, the requirement to give applicants and 
employees the opportunity to self-identify is consistent with the ADA. 
Although the ADA generally prohibits inquiries about disability prior 
to an offer of employment, it does not prohibit the collection of this 
information by a sponsor in furtherance of its part 30 affirmative 
action obligation to provide equal opportunity in apprenticeship for 
qualified individuals with disabilities. The EEOC's regulations 
implementing the ADA state that the ADA ``does not invalidate or limit 
the remedies, rights, and procedures of any Federal law . . . that 
provides greater or equal protection for the rights of individuals with 
disabilities'' than does the ADA.\83\ The OA part 30 rule is one such 
law. In the course of OFCCP's Section 503 rulemaking, counsel for the 
EEOC provided a letter stating that OFCCP's pre-offer self-
identification process, which is functionally identical to that 
included in this Final Rule, was permissible under the ADA. That 
interpretation would apply with equal power to this Rule. Accordingly, 
the Department adopts Sec.  30.11(a) as proposed.
---------------------------------------------------------------------------

    \83\ 29 CFR 1630.1(c)(2).
---------------------------------------------------------------------------

    With regard to the concern that, notwithstanding the legality of 
this provision, sponsors may face increased discrimination complaints 
as a result, we do not believe this will present a significant 
obstacle. While knowledge of the existence of a disability, like 
knowledge of a person's race, ethnicity, or gender, is a component of 
an intentional discrimination claim, to find intentional discrimination 
it must be proven not only that the sponsor knew that a person had a 
disability but that the sponsor treated the person less favorably 
because of his or her disability.\84\ We note, moreover, that sponsors 
have long had knowledge of the disabilities of applicants who have 
visible disabilities, such as blindness, deafness, or paraplegia, but 
that the Department has had no means of knowing that such individuals 
were present in the applicant pool or their experience in the 
application and selection process. Requiring sponsors to invite pre-
offer self-identification will help fill this void.
---------------------------------------------------------------------------

    \84\ In cases where there has been a denial of a reasonable 
accommodation, the knowledge that comes from a self-identification 
form provides no additional basis for a complaint, as individuals 
need to disclose their disability in order to request an 
accommodation.
---------------------------------------------------------------------------

    The Department points out that, generally, self-identification 
information should not be provided to interviewing, testing, or hiring 
officials, as it is confidential information that must be kept separate 
from regular personnel records. This will help ensure that these 
officials do not, in fact, have knowledge of which applicants have 
chosen to self-identify as having a disability. In response to the 
question regarding how self-identification information can be used for 
affirmative action purposes if hiring managers cannot use it in the 
decision-making process, this fundamentally misunderstands the purpose 
of the data collection. The regulations make clear that selection 
officials should never base their employment decisions on a protected 
basis, including an individual's disability status. The purpose of the 
self-identification and utilization goal is to collect data that will 
enable the sponsor to assess whether barriers to apprenticeship exist 
for individuals with disabilities, e.g., a decreasing rate of 
applications from individuals with disabilities over the years may 
suggest that further or different outreach and recruitment efforts 
should be conducted; it is not designed to encourage sponsors to select 
individuals based on their disability status.
    As mentioned above, some commenters claimed that the requirement to 
invite self-identification could conflict with state laws, but did not 
indicate any specific provisions of state law that would be 
problematic. The Department notes that OFCCP's regulations implementing 
Section 503 of the Rehabilitation Act also require contractors to 
invite employees and applicants to self-identify as individuals with 
disabilities, and no contractor has yet raised the issue of a 
conflicting state law provision. Furthermore, to the extent that any 
provision of state law did conflict with these regulations, the Final 
Rule would preempt the state law provision, and would not serve as a 
defense for failing to comply with this Part.
    Proposed Sec.  30.11(a)(2) required that the sponsor invite 
applicants to self-identify ``using the language and manner prescribed 
by the Administrator and published on the OA Web site.'' The Department 
sought comments on the specific language OA proposed to prescribe that 
the sponsor use when inviting applicants to self-identify at the pre-
offer stage. That language was as follows:

[[Page 92073]]

    1. Why are you being asked to complete this form? Because we are a 
sponsor of a registered apprenticeship program and participate in the 
National Registered Apprenticeship System that is regulated by the U.S. 
Department of Labor, we must reach out to, enroll, and provide equal 
opportunity in apprenticeship to qualified individuals with 
disabilities. [42] To help us measure how well we are doing, we are 
asking you to tell us if you have a disability or if you ever had a 
disability. Completing this form is voluntary, but we hope that you 
will choose to fill it out. If you are applying for apprenticeship, any 
answer you give will be kept private and will not be used against you 
in any way.
    If you already are an apprentice within our registered 
apprenticeship program, your answer will not be used against you in any 
way. Because a person may become disabled at any time, we are required 
to ask all of our apprentices at the time of enrollment, and then 
remind them yearly, that they may update their information. You may 
voluntarily self-identify as having a disability on this form without 
fear of any punishment because you did not identify as having a 
disability earlier.
    2. How do I know if I have a disability? You are considered to have 
a disability if you have a physical or mental impairment or medical 
condition that substantially limits a major life activity, or if you 
have a history or record of such an impairment or medical condition.
    Disabilities include, but are not limited to: Blindness, deafness, 
cancer, diabetes, epilepsy, autism, cerebral palsy, HIV/AIDS, 
schizophrenia, muscular dystrophy, bipolar disorder, major depression, 
multiple sclerosis (MS), missing limbs or partially missing limbs, 
post-traumatic stress disorder (PTSD), obsessive compulsive disorder, 
impairments requiring the use of a wheelchair, intellectual disability 
(previously called mental retardation).
    Please check one of the boxes below:
    [ballot] YES, I HAVE A DISABILITY (or previously had a disability)
    [ballot] NO, I DON'T HAVE A DISABILITY
    [ballot] I DON'T WISH TO ANSWER
    Your name:
    Date:
    Many advocacy organizations supported the proposed language 
regarding the invitation to self-identify because it mirrored OFCCP 
language used for Federal contractors in the regulations implementing 
Section 503 of the Rehabilitation Act. Some recommended, however, that 
the instructions for defining a disability should be clearer and 
broader. A state agency also expressed concern that the sponsor may be 
a committee, rather than an individual employer and that, in that case, 
the committee may not be the entity extending the bona fide job offer.
    The Department believes that the invitation language proposed in 
the NPRM is sufficiently clear to enable individuals to decide whether 
or not they have a disability. Additionally, the language states that 
``Disabilities include, but are not limited to . . .,'' indicating that 
conditions other than those listed on the invitation may qualify as a 
disability. Furthermore, this language is consistent with that used in 
other Department programs. As stated before, the Department thus adopts 
the proposed language without change and will make this invitation form 
available to sponsors. With regard to the question of sponsor 
structure, as addressed in previous sections where the issue has 
arisen, sponsors have historically entered into apprenticeship 
agreements with participating employers that have included provisions 
that the parties will coordinate to satisfy the obligations of part 30, 
and we expect this practice to continue. Sponsors should be extending 
the invitation to self-identify at the point at which apprentices are 
accepted into the apprenticeship program, even if sponsors are not the 
ones that would extend ultimate offers of employment to apprentices. 
For sponsors that are not responsible for selecting the apprentices 
that participate in this program, the sponsor would need to ensure that 
its participating employers invited apprentices and applicants for 
apprenticeship to self-identify at the time the employer reviews and 
selects the applicant. Sponsors would then be under a continuing duty 
to remind apprentices that they also have the opportunity to submit 
their self-identification to the sponsor.
    Lastly, the reference to inviting self-identification as part of a 
sponsor's ``general duty to engage in affirmative action'' is amended 
to clarify that the requirement to invite apprentices and applicants to 
self-identify only applies to sponsors that are required to maintain an 
AAP, and that inviting self-identification is part of their AAP 
requirements. Inviting self-identification is not required as part of 
the sponsor's general duty to engage in affirmative action pursuant to 
30.3(b), and sponsors that do not maintain an AAP should not invite 
apprentices to self-identify as individuals with disabilities.
Paragraph 30.11(b): Post Offer
    Proposed Sec.  30.11(b)(1) required that the sponsor invite 
applicants, after acceptance into the apprenticeship program, but 
before they begin their apprenticeship, to voluntarily self-identify as 
individuals with disabilities. This post-offer invitation to self-
identify is in addition to the invitation at the pre-offer stage, so 
that individuals with hidden disabilities who fear potential 
discrimination if their disability is revealed prior to being accepted 
into the program will, nevertheless, have the opportunity to provide 
this valuable data. Proposed Sec.  30.11(b)(2) again required that the 
sponsor invite self-identification using the language and manner 
prescribed by the Administrator and published on the OA Web site.
    The Department did not receive any specific comments on this 
paragraph that were not already discussed. The Department therefore 
adopts proposed Sec.  30.11(b) as proposed.
Paragraph 30.11(c): Apprentices
    In addition to the pre- and post-offer invitations to self-
identify, proposed Sec.  30.11(c) required that the sponsor invite each 
of its apprentices to voluntarily self-identify as an individual with a 
disability at the time the sponsor becomes subject to the requirements 
of part 30 and then remind apprentices yearly that they may update 
their disability status at any time. Allowing apprentices enrolled in a 
registered apprenticeship program to update their status will ensure 
that the sponsor has the most accurate data possible.
    While some commenters supported the requirement to remind 
apprentices that they can update their disability status throughout the 
apprenticeship program, other sponsors questioned whether apprentices 
would falsely identify as having a disability because they simply do 
not possess the required skill for the trade and want to complete the 
program. These comments appear to misconstrue the proposal and/or the 
relevant law. At the outset, the Department notes that self-identifying 
as an individual with a disability does not entitle someone to 
preferential selection--indeed, that is unlawful under the rule--nor 
does it automatically entitle someone to an accommodation to stay in 
the program. It is a well-established principle of disability law that 
if the individual is unable to perform the essential functions of a 
position with or without reasonable accommodation, the individual is 
not entitled to remain in that position.
    The Department is revising paragraph (c) to eliminate the 
requirement that sponsors must extend an invitation to those in its 
apprenticeship program ``each time an apprentice is enrolled into an 
apprenticeship program.'' Upon

[[Page 92074]]

reflection, we believe this was largely redundant, given that the one-
time invitation to the apprenticeship workforce during the first year 
of compliance, coupled with the invitation to all those that receive an 
offer to join the program, should ensure that everyone is provided the 
self-identification form to complete and return. The one-time self-ID 
solicitation for existing apprentices is set forth in paragraph (c)(1) 
of the new rule, and the time for compliance with this one-time self-ID 
invitation is set forth in new paragraph (h).
Paragraph 30.11(d)
    Proposed Sec.  30.11(d) emphasized that the sponsor is prohibited 
from compelling or coercing individuals to self-identify. A commenter 
had expressed concern that the proposed rule could cause sponsors to 
``encourage'' or pressure applicants and apprentices to self-identify 
in order to meet the utilization goal. The Department adopts Sec.  
30.11(d) as proposed to make clear that all self-identifications should 
be submitted on a strictly voluntary basis and that sponsors are not 
permitted to coerce individuals to self-identify.
Paragraph 30.11(e)
    Proposed Sec.  30.11(e) emphasized that all information regarding 
self-identification as an individual with a disability must be kept 
confidential and maintained in a data analysis file in accordance with 
proposed Sec.  30.12, and may not be included in an individual's 
personnel file. Proposed Sec.  30.11(e) also states that self-
identification information must be provided to the Registration Agency 
upon request and that the information may only be used in accordance 
with this part.
    Many commenters, including various State agencies and JATCs, 
expressed concerns regarding the interaction between this provision and 
the privacy protections afforded by the Health Insurance Portability 
and Accountability Act (HIPAA). Other commenters stated that the 
requirement to develop systems to maintain confidentiality and 
segregate information regarding self-identification from the actual 
hiring process may disproportionately burden small sponsors. This 
commenter suggested that employers would need technical assistance from 
Registration Agencies to comply with the proposed requirement to invite 
applicants to self-identify a disability.
    The Department adopts proposed Sec.  30.11(e) without change, and 
notes that it will provide assistance to sponsors in complying with 
this part. The data analysis file need not be complex, but simply 
provide a method by which the sponsor can retain and track self-
identification information in the aggregate, rather than as connected 
to each apprentice's personnel file. Maintaining the disability 
demographic information in a file separate from each apprentice's 
personnel file will also make it easier for sponsors to provide the 
self-identification information to OA when requested to do so.
    In response to the concerns over sharing the self-identification 
information with the Registration Agency, the Department notes that 
HIPAA privacy requirements generally do not apply to employers in their 
capacity as employers.\85\ Rather, the privacy standards of HIPAA only 
apply to covered entities under the statute, which are generally 
limited to health plans, health care clearinghouses, health care 
providers who transmit health information in electronic form, and their 
business associates. The regulations implementing HIPAA also exclude 
employment records from the definition of ``protected health 
information.'' \86\ While HIPAA may not apply to this self-
identification information, sponsors are obligated, under this part, to 
maintain this information in a confidential manner. This requirement 
does not prevent the sponsor from providing this information to the 
Registration Agency when requested.
---------------------------------------------------------------------------

    \85\ Public Law 104-191, sec. 1172 (a).
    \86\ 45 CFR 160.10.
---------------------------------------------------------------------------

Paragraph 30.11(f)
    Proposed Sec.  30.11(f) stated that nothing in this section may 
relieve the sponsor of its obligation to take affirmative action with 
respect to those applicants and apprentices of whose disability the 
sponsor has knowledge.
    Regarding proposed Sec.  30.11(f), an industry association 
requested that the Department provide further clarification of what it 
means for the sponsor's ``obligation to take affirmative action with 
respect to those applicants and apprentices of whose disability the 
sponsor has knowledge.'' The Department included paragraph (f) to 
remind sponsors that they are under a continuing obligation to provide 
a reasonable accommodation to those individuals with a known 
disability, even if the individual chooses not to self-identify and 
even if the individual does not specifically request a reasonable 
accommodation.
Paragraph 30.11(g)
    Proposed Sec.  30.11(g) clarified that nothing in this proposed 
section may relieve the sponsor from liability for discrimination in 
violation of this part. The Department did not receive any comments on 
this specific provision, and so adopts Sec.  30.11(g) as proposed.
Paragraph 30.11(h): Compliance Dates
    As discussed above, in response to those comments expressing 
concern over the burden associated with complying with the self-
identification requirements of this section, the Department is 
extending the time in which both current and new sponsors must come 
into compliance with this section. Paragraph (h) sets a compliance date 
two years after the effective date of the Final Rule for current 
sponsors. This means that the requirement to invite apprentices and 
applicants to self-identify will not apply until two years after the 
effective date of the Final Rule. Current sponsors will also have up to 
two years from the effective date in which to invite each of its 
current apprentices to voluntarily inform the sponsor whether the 
apprentice believes that he or she is an individual with a disability. 
The sponsor would be expected to complete a workforce analysis for 
individuals with disabilities pursuant to Sec.  30.7(d)(2) as soon as 
it has completed this invitation to current apprentices, as this will 
provide some data upon which to base the analysis. Subsequent workforce 
analyses will be based on the pre-offer and post-offer self-
identification data, as well as any changes to self-identification 
status that have been made as a result of the annual reminder per 
paragraph (c) of this section.
    New sponsors will follow a similar timetable, but the two years 
will be based on the date their program is registered rather than the 
effective date of the rule. During the program's provisional review 
conducted within one year of registration, the Registration Agency will 
provide further guidance on the AAP requirements for individuals with 
disabilities so that when the compliance date arrives the new sponsor 
is well equipped to take the necessary steps to satisfy its 
obligations.

Recordkeeping [Sec.  30.12]

    Existing Sec.  30.8 required sponsors to keep records for each 
applicant, including a summary of the qualifications of each applicant, 
the basis for evaluation and for selection or rejection of each 
applicant, the records pertaining to interviews of applicants,

[[Page 92075]]

the original application for each applicant, and other data. The rule 
states that records pertaining to individual applicants, selected or 
rejected, shall be maintained in such manner as to permit 
identification of minority and female (minority and nonminority) 
participants. Sponsors were also required, under the existing 
regulations, to retain a statement of its AAP required by Sec.  30.4 
and review their AAPs annually and update them where necessary, 
including the goals and timetables. Sponsors were also required to 
maintain evidence that their qualification standards have been 
validated in accordance with the requirements set forth in Sec.  
30.5(b), and maintain records for 5 years and make them available upon 
request to the Department or other authorized representative. The NPRM 
proposed to remove the existing Sec.  30.12 entitled ``Adjustments in 
schedule for compliance review or complaint processing'' because the 
information contained within this section has been incorporated into 
the proposed sections addressing EEO compliance reviews and complaints, 
and reinsert a new section on recordkeeping in its place.
    Proposed Sec.  30.12 prescribed the recordkeeping requirements that 
would apply to registered apprenticeship program sponsors, and 
concluded that a sponsor's failure to comply with these requirements 
would constitute noncompliance with the part 30 regulations. Proposed 
Sec.  30.12 retained, in large part, the recordkeeping requirements 
currently in Sec.  30.8, subject to basic editing, and updated them to 
reflect the development and use of electronic recordkeeping, and the 
broadened scope of the proposed rule to provide for equal opportunity, 
affirmative action, and nondiscrimination for applicants and 
apprentices with disabilities.\87\ Proposed Sec.  30.12, therefore, 
included a new provision regarding the confidentiality and use of 
medical information that is obtained pursuant to part 30, including 
information regarding whether an applicant or apprentice is an 
individual with a disability.
---------------------------------------------------------------------------

    \87\ OA maintains guidance that provides more explanation on 
exactly what documents must be maintained, and how sponsors should 
maintain it. See Bulletin 2010-11a Apprenticeship Program Standards 
Section XVIII Maintenance of Records and Appendix D, Section VI 
Maintenance of Records http://www.doleta.gov/OA/bul10/Bulletin%202010-11%20Revised%20Boilerplates.pdf. (last accessed 
September 10, 2015). In addition, OA will provide publicly available 
materials in conjunction with this NPRM that will update this 
guidance consistent with this proposal.
---------------------------------------------------------------------------

    In addition, proposed Sec.  30.12 removed the reference to the 
recordkeeping requirements of State Apprenticeship Councils. The 
Department proposed to move these requirements to proposed Sec.  30.18, 
the section addressing SAAs. This proposed change would ensure that all 
requirements specific to SAAs can be found in one location.
Paragraph 30.12(a): General Obligation
    Proposed paragraph (a) of Proposed Sec.  30.12 required sponsors to 
collect data and maintain records as the Registration Agency finds 
necessary to determine whether the sponsor has complied or is complying 
with the requirements of this part. Proposed Sec.  30.12(a)(3), in 
particular, required the sponsor to collect information relative to the 
operation of the apprenticeship program, including, but not limited to, 
job assignments in all components of the occupation as required under 
Sec.  29.5(b)(3), promotion, demotion, transfer, layoff, termination, 
rates of pay, other forms of compensation, conditions of work, hours of 
work, hours of training provided, and any other personnel records 
relevant to EEO complaints filed with the Registration Agency under 
Sec.  30.14 or with other enforcement agencies.
    A national union and a national JATC commented that proposed Sec.  
30.12(a)(3) includes requirements for a sponsor to retain information 
that is inapplicable to the relationship between a JATC and a 
registered apprentice, including information related to promotion, 
demotion, termination, and layoff. The commenters urged the Department 
to revise this section as it applies to JATCs so that only those 
records that are applicable to the relationship between a JATC and its 
registered apprentices must be maintained. These commenters said that 
some of the terms that are inapplicable to JATCs may be applicable for 
programs administered solely by one or more employers since employer-
sponsors have direct control over both an apprentice's progression 
through a program and advancement on the job. The commenters suggested 
that separate recordkeeping requirements for JATCs and employer-
sponsors may be necessary to ensure that employer-sponsors retain 
records that are pertinent to both roles.
    The Department recognizes the distinction between group sponsors 
and their member employers, as well as JATC sponsors' concerns about 
their responsibilities and how their duties to the apprentice are 
distinct from those of employers. However, the information required in 
Sec.  30.12(a)(3) is important to determining the relative success of a 
sponsor's AAP. The language in Sec.  30.12(a)(3) provides that sponsors 
must collect and maintain records relative to the operation of the 
apprenticeship program, and the Department will not require sponsors to 
record information that they do not have access to. The Department 
anticipates that JATCs will be able to collect this information from 
partner employers. We note that similar recordkeeping obligations were 
prescribed under the existing regulations and applied to sponsors 
generally. As has been detailed before, it is common practice currently 
for sponsors and their participating employers to enter into agreements 
detailing obligations and seeking the employers' cooperation in the 
sponsor's compliance with part 30. We expect that this will continue 
under this Final Rule.
    An individual commenter suggested that summary information about 
gender, ethnicity, and disability status should be available to 
interested apprentices and journeyworkers in the relevant trade at no 
cost to them, and sought to add new paragraphs under Sec. Sec.  
30.12(a) and 30.12(f) seeking this data in a format accessible to 
apprentices and journeyworkers. While the information provided on a 
chart summarizing demographics of apprenticeship programs may be 
useful, the Department does not feel that creating an additional 
requirement for apprenticeship programs is necessary at this time. We 
note further that publication of this data could raise privacy, 
confidentiality, and other legal issues.
Paragraph 30.12(b): Sponsor Identification of Record
    Proposed 30.12(b) stated that for any record that the sponsor 
maintains pursuant to the regulation, the sponsor must be able to 
identify the race, sex, ethnicity, and, when known, the disability 
status of each apprentice and supply this information upon request to 
the Registration Agency. When possible, the sponsor should identify the 
race, sex, ethnicity, and disability status of each applicant and 
supply this information upon request to the Registration Agency.
    A State Department of Labor and an industry association expressed 
concern that current Sec.  29.7(l) appears to be inconsistent with 
proposed Sec.  30.12(b) in that Sec.  29.7(l) requires a request for 
demographic data while proposed Sec.  30.12(b) requires that sponsors 
be able to identify this data. The industry association requested 
clarification about how a program should maintain the information about 
race, sex, ethnicity, and disability status required in

[[Page 92076]]

proposed Sec.  30.12(b) in cases where the apprentice refuses to 
provide the requested information. The industry association said that 
the Sec.  30.12(b) language should be amended to clarify that the 
sponsor should be required to make a good faith effort to obtain the 
described information. A State Department of Labor similarly requested 
clarification of Sec.  30.12(b) to ensure that sponsors must identify 
the demographics of their apprentices only when it is available.
    At the outset, we note that sponsors address this issue already, 
because the existing regulations require them to conduct a workforce 
analysis establishing the race/sex/ethnicity makeup of its 
apprenticeship program in order to determine whether they are 
underutilized. To provide greater guidance on how to do so, the NPRM 
proposed the language in Sec.  30.12(b), which is identical to that 
used in OFCCP's program at 41 CFR 60-1.12(c). This was purposeful, in 
order to set forth similar standards across AAPs to the extent 
possible, which would likely be more familiar to those in the employer 
community. In interpreting its regulation, OFCCP has stated the 
following:

    [We have] not mandated a particular method of collecting the 
information. Self-identification is the most reliable method and 
preferred method for compiling information about a person's gender, 
race and ethnicity. Contractors are strongly encouraged to rely on 
employee self-identification to obtain this information. Visual 
observation is an acceptable method for identifying demographic 
data, although it may not be reliable in every instance. If self-
identification is not feasible, post-employment records or visual 
observation may be used to obtain this information. Contractors 
should not guess or assume the gender, race or ethnicity of an 
applicant or employee. . . . OFCCP would not hold a contractor 
responsible for applicant data when the applicant declines to self-
identify and there are no other acceptable methods of obtaining this 
information.\88\
---------------------------------------------------------------------------

    \88\ http://kb.dol.gov/DOLArticlePage?agency=OFCCP&parentCatValue=Employer&article=ka1i0000000WEq1AAG (last accessed May 9, 2016).

    OA interprets the NPRM consistent with this interpretation. It does 
not mandate any particular collection method but notes with favor self-
identification, allowing that sponsors may record the data by visual 
observation if there is a factual basis for doing so. Further, it will 
not hold sponsors responsible when certain documents cannot be 
identified by protected category if that information has not been 
provided or cannot otherwise be easily ascertained.
    An advocacy organization urged the Department to amend the language 
at Sec.  30.12(b) to require programs to identify the age of qualified 
applicants or apprentices so that patterns of age discrimination can be 
detected. We decline to require this. Generally speaking, data 
collection is sought in connection with a sponsor's AAP, and the part 
30 AAP is limited to race, sex, ethnicity, and disability.
Paragraph 30.12(c): Affirmative Action Programs
    Proposed paragraph 30.12 required that sponsors required to develop 
and maintain an AAP under Sec.  30.4 must retain that written AAP and 
documentation of any efforts required by Sec.  30.8. We note that most 
sections of the regulations comprising the AAP obligations have their 
own recordkeeping requirements that must be complied with. However, to 
ensure a broad overarching recordkeeping obligation, the proposed Sec.  
30.12(c) is revised to simply state that the AAP recordkeeping 
obligations applies to each of the component parts of the AAP.
Paragraph 30.12(d): Maintenance of Records
    Proposed Sec.  30.12(d) decreased the amount of time that sponsors 
are required to keep documentation from five to three years. An SWA 
suggested that the Department retain the current requirement that 
sponsors maintain records for 5 years, reasoning that under the 
proposal a sponsor that has a 4-year program would have the ability to 
discard an apprenticeship agreement before the apprentice leaves the 
program. Alternatively, this commenter suggested that the Department 
revise the requirement to retain records to align with the entire 
length of the apprenticeship program, which the commenter said is 
usually 4 years. An individual commenter recommended that the 
Department require records be kept for an additional amount of time 
after an apprentice's term has ended so that data is available for 
evaluations and tracking a sponsor's progress. The commenter expressed 
concern that recordkeeping could be disrupted by personnel changes or 
economic changes within a 3-year span and said that this could lead to 
incomplete records. In contrast, an industry association remarked that 
the amount of time sponsors are required to retain records should be 
further reduced to 2 years, reasoning that this would align with other 
labor laws already in place. This commenter also suggested that the 
rule specify the type of records to be retained.
    Upon review of the comments, the Department has decided to revert 
to the existing requirement that records be maintained for 5 years. 
While the Department sought to decrease the time period for document 
retention in an effort to decrease burden, we believe the concerns 
raised about a document retention period that is shorter than the 
normal compliance review cycle, which is approximately 5 years, would 
be problematic, particularly given that under the Final Rule 
utilization analyses are to be performed concordant with sponsors' 
compliance review cycle and with significant input from the 
Registration Agency.
Paragraph 30.12(e): Confidentiality and Use of Medical Information
    Proposed Sec.  30.12(e) provided that any information collected 
that concerns the medical condition or history of an applicant or 
apprentice must be maintained in separate forms and in separate medical 
files and treated as confidential, and that such information must not 
be used for any purpose inconsistent with part 30.
    Some commenters expressed concerns with proposed Sec.  30.12(e). An 
industry association suggested that joint apprenticeship programs will 
need to develop and implement safeguards to ensure the confidentiality 
of medical records. An SAA expressed concern that developing systems to 
maintain confidentiality and segregate information regarding self-
identification from the actual hiring process may disproportionately 
burden small entities or sponsors that do not have highly-developed 
human resource systems or personnel processes. And several commenters 
requested further guidance on how to comply with the proposed 
requirement.
    We addressed many similar concerns in the discussion of Sec.  
30.11, above. As stated there, OA plans to provide guidance materials 
to sponsors regarding their recordkeeping responsibilities and ensuring 
the confidentiality of employee records.
    Some commenters said that there is inconsistent terminology used in 
part 29 and part 30 to describe advancement of an apprentice through a 
program. The commenters remarked that the term ``progression'' is used 
in part 29 whereas ``promotion'' is used in part 30. These commenters 
also stated that there are discrepancies between the use of the terms 
``suspension'' and ``cancellation'' in part 29 and ``demotion'' and 
``termination'' in part 30. The commenters remarked that the term 
``transfer'' in part 29 means transfer

[[Page 92077]]

from one program to another instead of from one job to another.
    The Department has reviewed the language and does not believe 
further clarifying regulatory text is necessary. Each of the terms 
raised above in part 30 has specific significance in the equal 
employment opportunity context distinguishing them from how they or 
similar terms are used in part 29. For instance, ``suspension'' and 
``cancellation'' in part 29 refer to actions taken against the 
apprenticeship program; ``demotion'' and ``termination'' in part 30 are 
describing personnel actions taken against an apprentice that could 
potentially be discriminatory if based on a protected basis.
Paragraph 30.12(f): Access to Records
    Proposed Sec.  30.12(f) set forth the obligations of sponsors to 
provide access to records for the purpose of conducting compliance 
reviews and investigations of complaints. We received no comments 
specific to this section not addressed elsewhere, so we adopt the 
proposed paragraph as Sec.  30.12(f) in the Final Rule.

Equal Employment Opportunity Compliance Reviews [Sec.  30.13]

    The NPRM sought to clarify exactly what is intended by EEO 
compliance reviews, with more specific accountabilities articulated for 
the sponsor and for the Registration Agency. Thus, the proposed rule 
provided a stand-alone Sec.  30.13 devoted to EEO compliance reviews, 
as opposed to the existing regulation's Sec.  30.9 which addressed 
compliance reviews of all types. EEO compliance reviews are to be 
conducted along with overall program performance reviews. There is 
intended to be uniformity in EEO compliance reviews across Registered 
Apprenticeship programs and across Registration Agencies. The proposed 
rule outlined how compliance reviews would be conducted, how sponsors 
would be notified of compliance review findings, how sponsors can come 
into compliance if there is a finding of a violation, and when 
enforcement actions may occur.
Paragraph 30.13(a): Conduct of Compliance Reviews
    In paragraph (a), the proposed rule sets forth that the 
Registration Agency would regularly conduct EEO compliance reviews to 
determine if the sponsor was in compliance with part 30, and will also 
conduct EEO compliance reviews when circumstances so warrant. It 
further detailed the variety of forms compliance reviews might take, 
including off-site reviews of records, desk audits of records submitted 
to the Registration Agency, and on-site reviews at a sponsor's 
establishment involving document review and interviews with relevant 
personnel.
    Commenters expressed concern about what exactly ``regularly'' means 
in terms of frequency of conducting reviews and/or audits. There are no 
pre-set timelines for compliance reviews, and the review cycle will 
vary by the Registration Agency. Historically in states administered by 
OA, as a general matter reviews have been conducted approximately every 
five years during a program's existence. There is somewhat more 
variance in states where apprenticeship is administered by an SAA. One 
commenter urged OA, once the regulation is adopted, to disseminate a 
circular detailing the minimum requirements for all EEO compliance 
reviews and ``audits.'' OA currently has a checklist of questions and 
protocols that can be sent to the sponsor before a compliance review. 
OA will continue to provide such technical assistance on EEO compliance 
reviews, but will take the comment under advisement in considering 
further guidance in the implementation of this rule.
Paragraph 30.13(b): Notification of Compliance Review Findings
    The proposed rule provided that Registration Agencies would provide 
a Notice of Compliance Review Findings within 45 days of completing the 
review. If the review uncovered deficiencies in part 30 compliance, 
this Notice would identify them, how they could be remedied, the 
timeframe for doing such remedying, and specifying that failure to do 
so could result in an enforcement action. The overall intent of this 
proposed text is that increased specificity would again provide for 
greater consistency and standardization of procedures across the 
National Registered Apprenticeship System. We did not receive any 
specific comments for this provision, so we retain the proposed 
language in the Final Rule.
Paragraph 30.13(c): Compliance
    The proposed Sec.  30.13(c) set forth the next step in the 
compliance review process: When a Notice indicated deficiencies in 
compliance, the requirement that a sponsor must, within 30 business 
days, implement a compliance action plan. This plan included four 
specific provisions: A commitment to correct the deficiency, a listing 
of the actions that will be taken, how long it will take, and the name 
of the person responsible. Assuming these steps are undertaken, the 
sponsor would be considered in compliance.
    There were a number of comments regarding this paragraph (c) 
proposed text. An SAA commented that the 30 business days for sponsors 
to develop an effective plan to address EEO compliance deficiencies did 
not provide enough time. This SAA suggested that sponsors should be 
given 30 business days to submit rebuttal arguments to the Registration 
Agency, and that the SAA should be given 30 days to respond to the 
rebuttal argument in writing. If the findings of noncompliance were 
upheld after the opportunity to contest allegations, this SAA 
recommended that the sponsor would then have 30 days to submit a 
remediation plan.
    In response to these comments, we have modified the Final Rule in 
two ways. First, the Final Rule states that within 30 days the sponsor 
must either implement a compliance action or provide a written response 
responding to the specific violation(s) cited by the Registration 
Agency within 30 days. This latter option addresses commenters' 
suggestions for an opportunity to respond to allegations. If, after 
reviewing the response, the Registration Agency upholds the findings of 
noncompliance, the sponsor then has 30 days to submit a remediation 
plan. Second, the Final Rule provides that the 30 day period may be 
extended for another 30 days by the Registration Agency for good cause 
shown. We note that this only applies to the original 30 day period; if 
the sponsor submits a rebuttal which the Registration Agency then 
denies, the Rule does not provide for an extension of the resulting 30 
day period to come into compliance.
    One advocacy organizational commenter suggested that sponsors in 
need of a compliance action plan should be provided with technical 
assistance to help rectify the situation: Specifically, a list of 
reliable technical assistance providers, as well as resources and 
materials to include in the design, development, and implementation of 
the compliance action plan (for example, resources developed via the 
Women in Apprenticeship and Nontraditional Occupations program). In 
particular, for sponsors falling short of EEO goals, this commenter 
recommended that the DOL provide a list of tradeswomen organizations 
for purposes of technical assistance. This type of technical assistance 
is already a part of Registration Agencies' compliance review process; 
we will continue to provide this assistance, as resources permit, to 
assist in bringing sponsors into EEO compliance.
    Several advocacy organizations commented that sponsors found to 
have

[[Page 92078]]

deficiencies need more attention and resources devoted to rectifying 
their situations, either through more rigorous EEO obligations or 
having compliance results published in a national registry for 
additional visibility. Some commenters went specifically further and 
suggested that the DOL should require the Registration Agency to 
evaluate a sponsor's compliance action plan for effectiveness 
``regularly'' until the sponsor attains the plan goals. The Department 
acknowledges the comment, but declines to add these measures at this 
time. We believe the enhancements announced in this Final Rule will 
increase the efficacy of sponsor EEO and affirmative action efforts. 
Further, the Registration Agency's focus historically has been on a 
technical assistance model, helping sponsors succeed and come into 
compliance wherever possible, rather than a more punitive approach. We 
do note that for programs that will not take corrective action to cure 
violations, the Registration Agency retains the authority to deregister 
such programs.
    Some commenters suggested that the Department include completion 
rates as a factor when evaluating whether a sponsor is making a good 
faith effort to comply with part 30 requirements, reasoning that 
completion rates are an important benchmark in assessing economic 
advancement of groups traditionally underrepresented in registered 
apprenticeship programs. As discussed in Sec.  30.8 above, the 
Department recognizes the importance of retention activities in 
building greater diversity within apprenticeship programs, and has 
included some options for addressing retention issues in Sec.  30.8(b).
Paragraph 30.13(d): Enforcement Actions
    Proposed Sec.  30.13(d) specified that any sponsor that fails to 
implement its compliance action plan within the specified timeframes 
may be subject to an enforcement action under proposed Sec.  30.15. One 
commenter suggested that the word ``may be subject'' be replaced by 
``must be subject,'' to help underscore the need to enforce the 
regulation. The Department has reviewed the comment and declines to 
adopt the suggestion, as it would be inconsistent with current practice 
and eliminate certain flexibilities that may be helpful in a given 
matter.

Complaints [Sec.  30.14]

    The Department proposed moving the existing Sec.  30.14 entitled 
``Reinstatement of program registration'' to Sec.  30.16. In its place, 
the NPRM proposed a section devoted to complaint processing and 
handling, borrowed in part from the existing Sec.  30.11, with 
additional revisions to improve readability and clarify requirements of 
program sponsors and Registration Agencies for addressing complaints. 
For instance, proposed Sec.  30.14 incorporated subheadings so that an 
apprentice or applicant for apprenticeship who wishes to file a 
complaint of discrimination under this part with a Registration Agency 
may easily identify the required components. Proposed Sec.  30.14 
deleted the provisions concerning private review bodies in the current 
part 30, at Sec.  30.11(a) and (b). Through feedback received prior to 
the publication of the NPRM from the SAAs, stakeholders at the town 
hall meetings, and the administration of the National Registered 
Apprenticeship System, the Department has found that apprenticeship 
program sponsors generally do not have or use private review bodies. 
Additionally, stakeholders expressed the opinions that such bodies 
could not objectively evaluate or prescribe remedies for complaints of 
discrimination. Thus, the proposed rule eliminated the use of private 
review bodies.
Paragraph 30.14(a): Requirements for Individuals Filing Complaints
    Proposed Sec.  30.14(a)(1) through (3) describe who has standing to 
file a complaint, the time period for filing a complaint, and the 
required contents of the complaint.
    Relating to the proposed Sec.  30.14(a) requirements for 
individuals filing complaints, a number of comments suggested ways to 
broaden the procedure for filing complaints in order to increase its 
potential as an avenue of protecting the rights of apprentices. One 
commenter made the suggestion to allow journeyworkers or higher status 
workers to file complaints on behalf of apprentices, as it was believed 
that apprentices are not well positioned in the workplace hierarchy to 
file a complaint without fear of risking their job or personal safety. 
Similarly, another urged the ability to file anonymous complaints. Many 
commenters recommended that the Department establish opportunities for 
third party complaints from stakeholder organizations (i.e., pre-
apprenticeship programs and other referral agencies) challenging 
policies or practices that result in exclusionary outcomes for 
apprentices and provide suggested remedial actions. Finally, a 
commenter suggested a number of suggested changes to complaint 
procedures, including required onsite diversity and compliance staff 
who are able to communicate with apprentices, gather feedback, identify 
areas of concern, and ultimately refer repeat offenders for training or 
additional counseling; dual-path complaint options so complaints are 
forwarded to a neutral party (to address situations in which the 
Registration Agency may not be perceived as neutral); and expansion of 
the complaint procedure window to 300 days (in line with EEOC 
regulations when a State law prohibits the discrimination on the same 
basis).
    The Department recognizes that its primary objective is to 
safeguard the welfare of apprentices, and wishes to have as robust and 
effective a complaint procedure in order to effectuate the protections 
of this part. With regard to third-party complaints, either by higher 
ranking employees or stakeholder groups, we believe the NPRM already 
provided such mechanisms. The proposed rule allowed for individual 
complaints filed ``through an authorized representative;'' these 
parties could satisfy that role. Further, the proposed regulations in 
Sec.  30.13 provide that the Registration Agency ``will also conduct 
EEO compliance review when circumstances so warrant.'' If the 
Registration Agency receives specific evidence from a third party that 
a violation of part 30 has occurred, that could be a circumstance 
warranting such a compliance review. With regard to the question of 
anonymous complaints, the regulations are clear that, at least at some 
juncture prior to perfecting a complaint, the identity of the 
complainant must be made known to the Registration Agency so that it 
can furnish relief to the appropriate person(s). We finally note that, 
assuming the sponsor or employer that has discriminated is covered by 
EEOC's jurisdiction, apprentices may file complaints directly with the 
EEOC if they so choose. These entities are required to post ``EEO is 
the Law'' posters in their workplace which would provide information on 
how to file complaints with the EEOC. To clarify this, we have updated 
the language in the notice poster to indicate that apprentices may also 
file complaints with Federal, state, and local agencies assuming they 
have jurisdiction to review the sponsor and/or employer.
    As for the filing period, we agree with the comment and extend the 
filing period to 300 days. As the commenter notes, this matches the 
statute of limitations for filing with the EEOC in all but the few 
``non-deferral'' states that do not have their own State employment 
discrimination law.

[[Page 92079]]

    In order to further effectuate the complaint process, the 
Department plans to issue guidance that sponsors can use to inform 
apprentices about their rights and the process for filing complaints in 
the course of the periodic orientation sessions set forth in Sec.  
30.3(b)(2)(iii).
    The Final Rule retains Sec.  30.14(a) as proposed with one 
revision--Sec.  30.14(a)(1) of the Final rule specifically lists 
retaliation as a basis on which individuals may file complaints. 
Retaliation was specifically prohibited in the proposed Sec.  30.17, 
but it was inadvertently omitted as a basis upon which individuals 
could file complaints.
Paragraph 30.14(b): Requirements of Sponsors Relating to Complaints
    Proposed Sec.  30.14(b) requires sponsors to provide notice to all 
applicants for apprenticeship and apprentices of their right to file a 
discrimination complaint with the Registration Agency and the 
procedures for doing so. Proposed Sec.  30.14(b) also specifies the 
required wording for this notice. A sponsor may combine this notice and 
its equal opportunity pledge in a single posting for the purposes of 
this proposed section and proposed Sec.  30.3(b)(2)(ii). The Department 
received no comments specific to this section not addressed elsewhere, 
and thus retains the paragraph in the Final Rule as proposed.
Paragraph 30.14(c): Requirements of the Registration Agency Relating to 
Complaints
    Also, in an effort to ensure consistency in how Registration 
Agencies process complaints and conduct investigations, proposed Sec.  
30.14(c) would add uniform procedures that Registration Agencies must 
follow. These uniform procedures would ensure that the Registration 
Agency acknowledges and thoroughly investigates complaints in a timely 
manner, parties are notified of the Registration Agency's findings, and 
the Registration Agency attempts to resolve complaints quickly through 
voluntary compliance.
    Proposed Sec.  30.14(c)(3) provides that a Registration Agency may, 
at any time, refer a complaint to an appropriate EEO enforcement 
agency. This provision would allow Registration Agencies to safeguard 
the welfare of apprentices by making use of existing Federal and State 
resources and authority. For example, a Registration Agency might refer 
a complaint to the EEOC if it finds a violation of title VII, the ADA, 
or the ADEA, but does not think it could achieve a complete remedy for 
the complainant through voluntary compliance procedures or enforcement 
action under proposed Sec.  30.15.
    Proposed Sec.  30.14(c)(4) would allow an SAA to adopt different 
complaint procedures, but only if it submits the proposed procedures to 
OA and receives OA's approval. This provision would codify the 
Department's current practice and would be consistent with Sec.  
29.12(f) of this title.
    An SWA requested clarification as to whether the failure of SAAs to 
meet deadlines under Sec.  30.14(c)(1) for conducting and reporting an 
investigation would lead to the sponsor being absolved. The commenter 
expressed concern that some complaints are impossible to analyze or 
resolve in the mandated time frame. Regarding the proposed Sec.  
30.14(c)(2) directive that, when a complaint investigation indicates a 
violation of nondiscrimination requirements, a ``Registration Agency 
must resolve the matter quickly and informally whenever possible,'' 
this commenter requested clarification as to what it would mean to 
resolve a complaint informally. The Department agrees with this 
comment, noting that some complaints, depending on the facts and 
various other circumstances, may take longer to complete than the time 
proposed in the NPRM. Accordingly, paragraph 30.14(c) is revised to 
redact the specific timetables for Registration Agency completion of 
the various steps, and instead includes language similar to that 
suggested by the commenter that Registration Agencies will conduct its 
investigation as expeditiously as possible. Additionally, the Final 
Rule revises 30.14(c)(2) to state that Registration Agencies ``should'' 
attempt to resolve matters ``at the Registration Agency level'' and 
quickly whenever ``appropriate,'' rather than ``must'' resolve them 
``informally'' and when ``possible,'' respectively. This is meant to 
communicate three things: First, that informal resolution of some 
matters, such as those raising particularly egregious violations, may 
not be appropriate; second, that the term ``informally'' can be 
interpreted in ways other than intended, which was to signify before 
referral to a federal or state equal opportunity agency; and third, for 
those matters where Registration Agency-level resolution may be 
appropriate, a quick resolution is desirable but not at the expense of 
arriving at one that effectively addresses the underlying problem. 
Toward that end, Registration Agencies should pursue resolutions that 
not only attempt to remedy the individual complainant, but those that 
include broader programmatic relief--such as trainings, information 
sessions, or other modifications to personnel policies and practices--
that would prevent the issue from recurring when appropriate.
    A State Department of Labor expressed support for allowing 
Registration Agencies to maintain complaint review procedures that are 
already in place. This Registration Agency said that it currently 
requires discrimination complaints be referred for review by the State 
Division of Human Rights or a private review body established by a 
sponsor, and requested clarification as to whether or not it could 
continue to do so by having its complaint review procedure approved by 
the Administrator if it is not already permitted by the proposed rule 
at Sec.  30.14(c)(3) without such approval. More broadly, this 
commenter remarked that the expertise in anti-discrimination laws and 
regulations necessary for ensuring compliance with the Sec.  30.3 
requirements is beyond the scope of a Registration Agency's role. The 
agency suggested that States should defer to EEO experts and provide 
assistance as a referral body to the proper regulating agency. In 
addition, the commenter warned that requiring Registration Agencies to 
assume responsibility for enforcement of laws and regulations already 
enforced by other entities would be duplicative and not cost-effective. 
This commenter recommended that the Department clarify or revise the 
regulation to permit complaints of discrimination filed with a 
Registration Agency to be referred to the proper oversight agency with 
jurisdiction over the complaint area.
    To address these issues, the Final Rule builds in flexibility to 
adopt complaint review procedures for discrimination complaints, 
provided that they are approved by the Administrator, and the rule also 
allows the Registration Agency the discretion to refer matters to other 
agencies, including the EEOC or State Fair Employment Practices Agency, 
that may be more appropriate for a given case. Accordingly, we believe 
the rule offers sufficient flexibility as proposed and we retain it as 
written in the Final Rule.
    Finally, an individual commenter recommended that each 
apprenticeship Registration Agency should have a designated contact 
person to handle discrimination complaints related to hiring and 
training, asserting that this is a normal function in other education 
and employment entities. We note that the NPRM included a requirement 
that the notice of rights ``must include the address, phone number, and 
other contact information for the Registration

[[Page 92080]]

Agency that will receive and investigate complaints filed under this 
part,'' and this is retained in the Final Rule.

Enforcement Actions [Sec.  30.15]

    The Department proposed to revise current Sec.  30.15 entitled 
``State Apprenticeship Councils'' by moving that language to Sec.  
30.18 and incorporating provisions similar to those in the existing 
Sec.  30.13, entitled ``Sanctions,'' into the proposed Sec.  30.15. The 
existing Sec.  30.13 stated that when the Department has reasonable 
cause to believe that an apprenticeship program is not operating in 
accordance with part 30, and where the sponsor fails to voluntarily 
take corrective action, the Department will initiate deregistration 
proceedings or refer the matter to the EEOC or the United States 
Attorney General with a recommendation for initiation of a court 
action. The rest of the section describes the procedures for 
deregistration proceedings.
    In the NPRM, the Department proposed to change the title of Sec.  
30.15, to ``Enforcement actions,'' in order to demonstrate the 
Department's emphasis on enforcing regulations governing discrimination 
in apprenticeship. Second, we proposed to replace ``Department,'' as 
used throughout this section, with the term ``Registration Agency'' to 
clarify that both the Department (more specifically, OA) and SAAs have 
the authority to take enforcement action against a non-complying 
sponsor. Third, proposed Sec.  30.15(b) introduced a new enforcement 
procedure in which a Registration Agency would suspend registration of 
new apprentices until the sponsor has achieved compliance with part 30 
through the completion of a compliance action plan or until a final 
order is issued in formal deregistration proceedings. Suspension 
pursuant to proposed Sec.  30.15(b) was intended as a temporary, 
remedial measure to spur return to compliance with the proposed part 30 
regulations; it was not intended to be punitive. If a sponsor had not 
taken the necessary corrective action within 30 days of receiving 
notice of suspension, the Registration Agency would initiate de-
registration proceedings as provided in part 29. Fourth, proposed Sec.  
30.15(c) would adopt the deregistration procedures of Sec. Sec.  
29.8(b)(5) through (8) of this title, including the hearing procedures 
in Sec.  29.10, for consistency and simplicity. And finally, proposed 
Sec.  30.15(d) would authorize Registration Agencies to refer a matter 
involving a potential violation of equal opportunity laws to 
appropriate Federal or State EEO agencies.
    Many commenters were concerned about punitive actions being taken 
against sponsors without the Registration Agency having explicitly 
defined criteria about how the judgment would be made or laying out the 
exact penalty structure. The continuum of technical assistance to 
punitive action was a source of concern and confusion for at least one 
commenter.
    There were a significant number of comments regarding the 
Registration Agency's ability to ``suspend the sponsor's right to 
register new apprentices'' in Sec.  30.15(b). Construction industry 
related entities (union and non-union) were particularly interested in 
this text. Although there was some commenter support for the ``proposal 
to allow temporary suspension rather than program cancellations in the 
event of a violation,'' other commenters expressed concern that the 
language could result in ``damage'' to Registered Apprenticeship 
training programs because of the Registration Agency suspension 
ability. Due process concerns, particularly related to apprentice 
suspension, were raised by a number of commenters. For example, some 
national unions noted that this proposed sanction is inconsistent with 
part 29, which only mentions deregistration as a sanction, not 
suspension of apprentices. Union commenters wanted to make clear that 
due process rights, including notice, hearing, and a written decision 
by the Secretary of Labor, must be afforded to a sponsor. There was 
also concern that the proposal contained ``no durational limit'' on the 
suspensions, with a commenter conclusion that ``adoption of 
administrative hearing procedures such as those used in deregistration 
would address the issues discussed.''
    As stated at the outset, the option of suspending a sponsor's right 
to register new apprentices was not intended as a punitive measure, but 
rather as an intermediate step that Registration Agencies could take in 
an attempt to persuade sponsors to remedy violations of part 30 before 
taking the ultimate action to deregister the program. The proposed 
suspension afforded sponsors notice, in that it required a written 
notification from the Registration Agency of the specific violation(s) 
and allowed 30 days for the sponsor to address the violation before any 
action would be taken. It was also limited in duration; if the sponsor 
did not address the violation within 30 days of the suspension, the 
suspension would end with the initiation of formal deregistration 
proceedings, where a hearing is afforded. In order to further address 
the comments raised, however, the Final Rule includes additional steps 
wherein, upon being notified of a violation, rather than requiring 
compliance within 30 days, the sponsor may submit a response to the 
notice of violation within 30 days which the Registration Agency will 
consider. If the Registration Agency upholds its initial determination, 
the sponsor has 30 days from notification of this decision to implement 
a compliance plan, or suspension proceedings may ensue. This 
opportunity to respond, in conjunction with the notice of violation and 
the limited duration of the suspension, affords adequate process rights 
to sponsors. Moreover, if the Registration Agency does not institute 
proceedings to deregister the suspended program within 45 days of the 
start of the suspension, the suspension is then lifted. The Department 
emphasizes, though, that a Registration Agency will work with all 
program sponsors prior to instituting any deregistration proceedings to 
offer technical assistance and attempt to bring the sponsor into 
compliance. This process will involve active communication between the 
sponsor and the Registration Agency, and a sponsor that disagrees with 
the Registration Agency's findings regarding its compliance should 
bring that to the Registration Agency's attention. The Department 
reiterates that enforcement is a last resort for non-complying 
sponsors.
    Finally, several national unions warned about difficulty in 
enforcement due to a ``lack of clarity as to scope and applications of 
duties of the program sponsor to other entities it owns and controls 
and to subcontractors,'' a particular concern expected in the 
construction industry. These commenters want to see consistency in 
enforcement activity with that of the OFCCP in order to ensure a 
``consistent regulatory scheme,'' regardless of whether a sponsor is 
operating under Federal contracting regulations or under the Registered 
Apprenticeship affirmative action regulations. This issue has been 
addressed in previous sections; the sponsor is ultimately responsible 
for maintaining an apprenticeship program that complies with part 30, 
which has historically included agreements between the sponsor and 
participating employers to ensure that all elements of the 
apprenticeship program are operating in accordance with these 
regulations.

Reinstatement of Program Registration [Sec.  30.16]

    The NPRM removed the existing Sec.  30.16, entitled ``Hearings.'' 
As explained earlier in the preamble, the

[[Page 92081]]

Department proposes to incorporate the part 29 procedures for hearings 
into part 30, so that a sponsor need only follow one set of procedures 
regardless of whether the issue at hand addresses the labor standards 
set forth in part 29 or the equal opportunity standards set forth in 
part 30. The existing Sec.  30.14 stated that any apprenticeship 
program that had been deregistered pursuant to part 30 may be 
reinstated by the Secretary, upon presentation of adequate evidence 
that the program is operating in accordance with part 30. Proposed 
Sec.  30.16 was revised to align with part 29, which provides that 
requests for reinstatement must be filed with and decided by the 
Registration Agency.
    These proposed revisions, which are consistent with Sec. Sec.  
29.8, 29.9, 29.10 and 29.13 of this title, implement Secretary's Order 
1-2002, 67 FR 64272, Oct. 17, 2002. Accordingly, the proposal provides 
that requests for reinstatement must be filed with and decided by the 
Registration Agency. The Department received no comments associated 
with this issue.

Intimidation and Retaliation Prohibited [Sec.  30.17]

    The existing Sec.  30.17 stated that a sponsor must not intimidate, 
threaten, coerce, or retaliate against any person for the purpose of 
interfering with any right or privilege secured by title VII or 
Executive Order 11246. Proposed Sec.  30.17 revised this language to 
state that sponsors would be prohibited from intimidating or 
retaliating against any individual because he or she has opposed a 
practice prohibited by this part or any other Federal or State equal 
opportunity law or participated in any manner in any investigation, 
compliance review, proceeding, or hearing under part 30 or any Federal 
or State equal opportunity law.
    An advocacy organization recommended that the Department include 
measures that would protect from retaliation those who help educate 
fellow program participants about the regulations and those who bring 
forward complaints or concerns.
    The proposed language in Sec.  30.17 prohibited discrimination and 
retaliation against ``any individual'' who files a complaint or opposes 
a practice prohibited by this regulation, and this language is retained 
in the Final Rule. This includes program participants and anyone else 
who brings forward complaints or concerns. As for specific scenarios 
that raise the question of whether protected activity has been 
undertaken such as the one proposed, we note that it is often a fact-
based inquiry and we will follow relevant title VII case law and 
interpretative guidance in analyzing such claims. The Final Rule does 
revise slightly paragraphs (a) and (b) to clarify the intent that it is 
unlawful for a participant to be retaliated against by anyone connected 
with the apprenticeship program.

State Apprenticeship Agencies [Sec.  30.18]

    In the NPRM, the Department proposed to revise the existing Sec.  
30.18 entitled ``Nondiscrimination,'' which stated that the commitments 
contained in a sponsor's AAP must not be used to discriminate against 
an apprentice or applicant for apprenticeship on the basis of race, 
color, religion, national origin, and sex, and to incorporate those 
revisions into proposed Sec.  30.4, as discussed earlier in the 
preamble.
    Proposed Sec.  30.18 revised current Sec.  30.15, which requires 
State Apprenticeship Councils to adopt State plans. These proposed 
revisions were necessary to make proposed part 30 consistent with the 
part 29 procedures for recognition of SAAs. Proposed Sec.  30.18 
differed significantly from the current Sec.  30.15, because proposed 
Sec.  30.18 did not include State Apprenticeship Councils as entities 
eligible for recognition. As provided in Sec.  29.13 of this title, the 
Department will only recognize an SAA that complies with the specified 
requirements, granting that Agency authority to register apprenticeship 
programs and apprentices for Federal purposes. Therefore, proposed 
Sec.  30.18 would delete references to ``State Apprenticeship 
Councils'' as the entities required to submit a State EEO plan and the 
entities eligible for recognition, and replace it with the appropriate 
term, ``State Apprenticeship Agency.''
    A company commented that SAAs are underfunded and understaffed, and 
asserted that the burden of the proposed Sec.  30.18 requirements would 
make it difficult to achieve the goal President Obama has set for 
apprenticeships.
    In promulgating this Final Rule, the Department carefully 
considered balancing the interests of state agencies, sponsors, and 
apprentices, and the Department's need to implement these regulations 
in an efficient and effective manner. The Department believes that the 
standards it is establishing in this rulemaking for SAAs will not limit 
the growth of apprenticeship programs or create a significant burden 
for sponsors and state agencies.
Paragraph 30.18(a): State Plan
    Proposed Sec.  30.18(a) set forth requirements for a State EEO 
plan. The proposed rule would require, within one year of the effective 
date of the Final Rule, with no extensions permitted, that SAAs provide 
to OA a State EEO plan that includes the State apprenticeship law that 
corresponds to the requirements of this part and requires all 
apprenticeship programs registered with the State for Federal purposes 
to comply with the requirements of the State's EEO Plan within 180 days 
from the date that OA provides written approval of the State EEO plan. 
The Department's determination of compliance with this part is separate 
from submission of the State EEO plan. Therefore, proposed Sec.  
30.18(a) also specified a collaborative, iterative process whereby SAAs 
seeking recognition can achieve conformity with this part. Proposed 
Sec.  30.18(a) also would provide clarity regarding requirements for 
demonstration of conformity, while maintaining flexibility to 
accommodate the unique circumstances of a particular SAA.
    A State Department of Labor said that it would be unreasonable to 
require SAAs to submit a State EEO plan and a copy of the State's 
statute within one year from the effective date of the final 
regulation. Asserting that implementation of the regulation would take 
well over a year to pass through State legislation, the Administrative 
Process Act, and internal agency review, the State suggested that the 
Department grant SAAs three years to submit a State EEO plan. Another 
State Department of Labor echoed the concern that one year would be an 
insufficient amount of time to complete the review process and 
requested that SAAs be given two years to submit their plan.
    Regarding the proposed Sec.  30.18(a)(1)(i) requirement that the 
State EEO plan submitted to OA include a copy of the State 
apprenticeship law that corresponds to the requirements of part 30, an 
SWA asked the Department to clarify if this means the SAA must submit 
proposed draft State regulations before rule finalization.
    As for the proposed Sec.  30.18(a)(1)(ii) requirement that the 
State EEO plan must require all registered apprenticeship programs in 
the State to comply with the requirements of the State's EEO plan 
within 180 days of OA approval, an industry association and an SWA said 
this was not enough time, reasoning that the State would need to host a 
series of town hall meetings to explain the new regulations to 
stakeholders and provide other technical assistance to sponsors. 
Instead, the SWA recommended that registered apprenticeship programs 
have two years to come into compliance with the new State EEO plan, and 
the

[[Page 92082]]

industry association said the timeline should be extended to one year 
from the date of OA State EEO plan approval.
    The Department has carefully considered SAA's needs in accordance 
with the proposed regulations and has determined to amend this clause 
to require that, within one year, SAAs provide to OA a State EEO plan 
that includes, at a minimum, draft State apprenticeship authorizing 
language--which, depending on the State, could be either legislation, 
regulation, or executive order--corresponding to the requirements of 
this part. The Final Rule further requires all apprenticeship programs 
registered with the State for Federal purposes to comply with the 
requirements of the State's EEO Plan, within 180 days from the date 
that OA provides written approval of the State EEO plan. The State may 
request an extension from OA to the one-year State's EEO Plan 
requirement, which the Administrator may grant for good cause shown.
    The Department believes that one year, with the opportunity for 
extension if there is good cause, is a reasonable amount of time to 
develop an EEO plan. The Department has also determined that 180 days 
is an adequate amount of time for registered apprenticeship programs to 
comply with the requirements of the State's EEO plan. The Department's 
intent is to have SAAs come into compliance with these regulations as 
quickly as possible. We understand there may be logistical difficulties 
with this in certain circumstances, which we believe the extension 
request provision addresses.
Paragraph 30.18(b): Recordkeeping Requirements
    Proposed Sec.  30.18(b) carried forward existing recordkeeping 
requirements from the existing Sec.  30.8(d), using the term ``State 
Apprenticeship Agency'' instead of ``State Apprenticeship Council.'' 
Regarding the proposed Sec.  30.18(b) requirement that SAAs must keep 
all compliance records for three years from the date of creation, an 
individual commenter said that maintaining records on compliance 
reviews and complaints for five to 10 years would place SAAs in a 
``better position to monitor the impact of technical assistance over 
the course of an apprenticeship cohort's procession through an 
apprenticeship cycle as well as identify sponsors that exhibit patterns 
of stagnation in progress toward goals and/or repeated complaints.''
    The Department considered this suggestion and determined that it 
will amend the proposed rule to require SAAs to keep all compliance 
records for five years, for consistency across program regulations.
Paragraph 30.18(c): Retention of Authority
    Proposed Sec.  30.18(c) also carried forward provisions in Sec.  
30.15(a)(4), which state that OA retains full authority to conduct EEO 
compliance reviews of apprenticeship programs, investigate complaints, 
deregister for Federal purposes an apprenticeship program registered 
with a recognized SAA, and refer any matter pertaining to these EEO 
compliance reviews or these complaints to the EEOC, the U.S. Attorney 
General, or the Department's OFCCP. In addition, proposed Sec.  
30.18(c) clarified that OA retains authority to conduct complaint 
investigations to determine whether any program sponsor registered for 
Federal purposes is operating in accordance with this part.
    An SAA sought to confirm that the OA authority to conduct 
compliance reviews and complaint investigations only applies to 
programs registered for Federal purposes and not to programs that are 
not Federally registered or do not implicate Federal purposes. In 
response, we clarify that, in SAA states the Office of Apprenticeship 
will only conduct compliance reviews and complaint investigations on 
national programs that are registered with the Federal government, such 
as federal prisons or military bases.
Paragraph 30.18(d): Deregistration
    Proposed Sec.  30.18(d) clarified that SAAs will be subject to the 
derecognition procedures established in Sec.  29.14 of this title, for 
failure to comply with the requirements of this part.
    A SWA remarked that the rule seems to prevent the decertification 
of SAAs for failure to enforce EEO. The commenter stated that although 
proposed Sec.  30.18(a)(3) and (d) reference Sec.  29.14 deregistration 
proceedings, Sec.  29.14 attributes that authority to parts 29 and 30, 
which would no longer provide that authority.
    Section 29.14 is entitled ``Derecognition of State Apprenticeship 
Agencies'' and states that ``The recognition for Federal purposes of a 
State Apprenticeship Agency may be withdrawn for the failure to 
fulfill, or operate in conformity with, the requirements of parts 29 
and 30.'' Furthermore, that section provides that ``derecognition 
proceedings for reasonable cause will be instituted in accordance with 
the following: (a) Derecognition proceedings for failure to adopt or 
properly enforce a State Plan for Equal Employment Opportunity in 
Apprenticeship must be processed in accordance with the procedures 
prescribed in this part.'' Accordingly, we disagree with the comment, 
and believe that Sec.  29.14 provides the Department with the authority 
to undertake derecognition for failure to comply with Sec.  30.18.

Exemptions [Sec.  30.19]

    Section 30.19 of the existing rule addresses exemptions. Under the 
existing Sec.  30.19, a sponsor may submit a written request to the 
Secretary for an exemption from part 30, or any part thereof, and such 
a request may be granted by the Secretary for good cause. State 
Apprenticeship Councils are required to notify the Department of any 
such exemptions granted that affect a substantial number of employers 
and the reasons therefore.
    The Department proposed minor revisions to this section. First, 
proposed Sec.  30.19 required that requests for exemption be submitted 
to the Administrator, rather than the Secretary, to reflect a shift in 
Departmental decision-making. Second, proposed Sec.  30.19 required 
that SAAs, not State Apprenticeship Councils, request and receive 
approval from the Administrator to grant an exemption from these 
regulations. As discussed above, State Apprenticeship Councils are not 
eligible for recognition under Sec.  29.13 of this title. This proposed 
regulatory requirement is to ensure consistency with respect to when 
exemptions may be granted.
    Under proposed Sec.  30.19, a sponsor may submit a written request 
to the Registration Agency for exemption from part 30, or any part 
thereof, and such a request may be granted by the Registration Agency 
for good cause. A company inquired as to why the proposed part 30 did 
not include an exclusion for organizations that are already in 
compliance with EEO rules, as exists in the old part 30. The Final Rule 
does include such an exemption, at Sec.  30.4(d)(2).

Effective Date [Sec.  30.20]

    The proposed rule created a new Sec.  30.20 that established the 
dates by which sponsors needed to come into compliance with certain 
provisions in the regulations. The Final Rule removes this section and 
instead incorporates the compliance dates in the individual sections to 
which they apply. Discussion of the comments on the compliance dates 
provided is therefore found in each of these sections, above.

[[Page 92083]]

Proposed Amendments to Part 29 Regulations, Labor Standards for 
Registration of Apprenticeship Programs

    The part 29 regulations governing Labor Standards for Registration 
of Apprenticeship Programs include references to sections in part 30 
that are changed through this proposed rule. This NPRM proposed 
technical, non-substantive changes for consistency and conformity with 
the proposed changes to part 30. We received no comments on these 
changes that have not been addressed in other sections of this 
preamble, so we adopt the proposed language changes to part 29 as 
proposed.

Regulatory Procedures

Executive Orders 12866 and 13563: Regulatory Planning and Review

    Executive Order 13563 directs agencies to propose or adopt a 
regulation only upon a reasoned determination that its benefits justify 
its costs; tailor the regulation to impose the least burden on society, 
consistent with achieving the regulatory objectives; and in choosing 
among alternative regulatory approaches, select those approaches that 
maximize net benefits. Executive Order 13563 recognizes that some 
benefits are difficult to quantify and provides that, where appropriate 
and permitted by law, agencies may consider and discuss qualitatively 
values that are difficult or impossible to quantify, including equity, 
human dignity, fairness, and distributive impacts.
    Under Executive Order 12866, the Office of Information and 
Regulatory Affairs must determine whether this regulatory action is 
``significant'' and, therefore, subject to the requirements of the 
Executive Order and subject to review by the Office of Management and 
Budget (OMB). Section 3(f) of Executive Order 12866 defines a 
``significant regulatory action'' as an action likely to result in a 
rule that may: (1) Have an annual effect on the economy of $100 million 
or more, or adversely affect a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local or Tribal governments, or communities in a material way (also 
referred to as an ``economically significant'' rule); (2) create 
serious inconsistency or otherwise interfere with an action taken or 
planned by another agency; (3) materially alter the budgetary impacts 
of entitlement grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.
    The Office of Management and Budget has determined that the Final 
Rule is not an economically significant regulatory action under 
paragraph 3(f)(1) of Executive Order 12866. This rulemaking is not 
expected to adversely affect the economy or any sector thereof, 
productivity, competition, jobs, the environment, or public health or 
safety in a material way. In fact, the Final Rule is expected to 
increase the effectiveness and efficiency of EEO compliance within 
apprenticeship programs and to reduce the burden imposed on sponsors in 
several respects. It has, however, been determined that the Final Rule 
is a significant regulatory action under paragraph 3(f)(4) of the 
Executive Order and, accordingly, OMB has reviewed the Final Rule.
1. Need for Regulation
    As explained in the preamble, the Department is updating the equal 
opportunity regulations that implement the National Apprenticeship Act 
of 1937. The existing regulations set forth at 29 CFR part 30 prohibit 
discrimination in registered apprenticeship on the basis of race, 
color, religion, national origin, and sex, and require that sponsors 
take affirmative action to provide equal opportunity in such programs. 
The Final Rule updates the part 30 regulations by including age (40 or 
older), genetic information, sexual orientation, and disability among 
the list of protected bases upon which a sponsor must not discriminate, 
and by detailing mandatory actions a sponsor must take to satisfy its 
affirmative action obligations.
    In part, the Department is making this update so that the part 30 
regulations align with 2008 revisions made to the Department's other 
set of regulations governing the National Registered Apprenticeship 
System at part 29. In addition, the part 30 regulations have not been 
amended since 1978 and EEO law has evolved since that time. The changes 
in the Final Rule will ensure that the National Registered 
Apprenticeship System is consistent and in alignment with EEO laws as 
they have developed over the past 30 years, as discussed in Section I 
of the Final Rule, and to ensure that apprentices and applicants for 
apprenticeship receive equal opportunity in apprenticeship programs.
    The Department is concerned that many segments of society continue 
to face substantial barriers to equal opportunity in apprenticeship. 
Accordingly, a principal goal for the Final Rule is to strengthen the 
EEO for the National Registered Apprenticeship System, and improve the 
effectiveness of an apprenticeship program sponsor's required 
affirmative action efforts, as well as improve sponsors' compliance 
with part 30. To achieve this goal, the Department is making several 
changes to part 30, including:
    (1) Updating the equal opportunity standards to include age (40 or 
older), genetic information, sexual orientation, and disability to the 
list of protected bases upon which sponsors of registered 
apprenticeship programs must not discriminate;
    (2) Requiring all sponsors, regardless of size, to take certain 
affirmative steps to provide equal opportunity in apprenticeship;
    (3) Streamlining the utilization analysis required of sponsors with 
five or more apprentices to determine whether any barriers to 
apprenticeship exist for individuals based on race, sex, or ethnicity, 
and clarifying when and how utilization goals are to be established;
    (4) Requiring targeted outreach, recruitment, and retention 
activities when underutilization of certain protected groups have been 
found and a utilization goal has been established per Sec.  30.6 and/or 
where a sponsor has determined pursuant to Sec.  30.7(e) that 
impediments to equal opportunity exist for individuals with 
disabilities;
    (5) Simplifying procedures for selecting apprentices;
    (6) Standardizing procedures Registration Agencies \89\ must follow 
for conducting compliance reviews;
---------------------------------------------------------------------------

    \89\ As explained in Section I of the Final Rule, part 29 
prescribes procedures concerning the recognition of State 
Apprenticeship Agencies as Registration Agencies that can then 
register, cancel, and deregister apprenticeship programs within that 
State with the same authority as the Department and in accordance 
with the policies and procedures in part 29.
---------------------------------------------------------------------------

    (7) Clarifying requirements of program sponsors and Registration 
Agencies for addressing complaints;
    (8) Aligning more closely with 29 CFR part 29 procedures for 
deregistration of SAAs, derecognition of apprenticeship programs and 
hearings; and
    (9) Requiring an invitation to self-identify as an individual with 
a disability.
    These provisions will help to ensure that all individuals, 
including women, minorities, and individuals with disabilities, are 
afforded equal opportunity in registered apprenticeship programs. 
Moreover, the addition of age (40 or older), genetic information, 
sexual orientation, and disability to the

[[Page 92084]]

list of those bases upon which a sponsor must not discriminate will 
bring the National Registered Apprenticeship System into alignment with 
the protected bases identified in the various Federal laws applicable 
to most apprenticeship sponsors. These provisions will also ensure 
these underrepresented groups have increased access to programs. The 
Department's interest in updating part 30 to improve the effectiveness 
of sponsors' affirmative action efforts, as well as Registration 
Agencies' efforts to enforce and support compliance with this rule, 
lies in assuring that the Department's approval of a sponsor's 
apprenticeship program does not serve to support, endorse, or 
perpetuate discrimination.
2. General Comments Received on the Economic Analysis in the Notice 
Period of Proposed Rulemaking
    The Department received several public comments that addressed the 
economic analysis in the NPRM. We carefully considered the comments 
received. The significant comments and summaries of the Department's 
analyses and determinations are discussed below:
a. Specific Steps To Provide Equal Opportunity--Staff Designation
    Comments: In the NPRM, the economic analysis estimated that no 
additional burden would be incurred by the requirement to designate an 
individual to be responsible and accountable for overseeing the 
sponsor's commitment to EEO. Several commenters questioned this 
assumption by stating that staff already had full time jobs and the 
assumption that a human resource manager is already on staff may be 
inaccurate.
    Department Response: Because businesses already have EEO provisions 
that they have to comply with through other federal regulations, it is 
the Department's interpretation that businesses will not need to 
provide additional staffing and that these responsibilities will fall 
under the existing staffing infrastructure. Additionally, the 
Department is committed to providing adequate technical assistance to 
sponsors and does not expect to increase the sponsor's need for 
staffing or other resources. The Final Rule language has been modified 
to clarify that the EEO designation can be provided to one individual 
or to multiple individuals so it is not a single person that has to 
address the requirements of this rule.
b. Specific Steps To Provide Equal Opportunity--Orientation and 
Periodic Information Sessions
    Comments: In the NPRM, the economic analysis estimated that 5 
apprentices and 5 journeyworkers would attend orientation and periodic 
information sessions. Several commenters stated that many programs 
could have considerably more apprentices, which would require much more 
of their time and possibly entail additional logistical costs 
associated with hosting meetings of that size.
    Department Response: Based on program data and the growth model for 
apprentices and sponsors in this analysis, the Department estimated 
that 24 apprentices and 24 journeyworkers would attend orientation and 
periodic information sessions for all sponsors in 2017. Over the 10-
year analysis period (2017-2026) these numbers would gradually increase 
to 34 apprentices and 34 journeyworkers in 2026.\90\ Because sponsors 
already have in place a system to provide training and messaging to 
apprentices and journeyworkers, the Department believes that sponsors 
will be able to work in the additional EEO requirements that need to be 
communicated into their existing outreach structure with minimal 
additional cost. Additionally, the Department intends to provide 
guidance to sponsors relating to areas such as relevant recruitment 
sources and links to materials that sponsors and/or participating 
employers can use for anti-harassment communications and training.
---------------------------------------------------------------------------

    \90\ Using program data from the Registered Apprenticeship 
Partners Information Data System (RAPIDS) and the growth model for 
apprentices and sponsors used in the analysis, the Department 
estimated that there are on average 24 apprentices per sponsor in 
2017; 26 in 2018; 27 in 2019; 28 in 2020; 29 in 2021; 31 in 2022; 32 
in 2023; 32 in 2024; 33 in 2025; and 34 in 2026. The Department 
further assumes a one-to-one ratio between apprentice and 
journeyworker in estimating the cost of orientations and periodic 
information sessions.
---------------------------------------------------------------------------

c. Revised Methodology for Utilization Analysis and Goal Setting
    Comments: The NPRM estimated that the revised utilization 
methodology would have streamlined the process and resulted in a 
reduced burden of the Final Rule. Several commenters disagreed with 
that estimation and indicated that the revised guidelines required more 
statistical expertise than staff typically possess. The inference that 
the Department would no longer be providing ``availability'' 
percentages would also increase staffing requirements and labor.
    Department Response: In response to these concerns, the Department 
has revised the utilization analysis described in the Final Rule to 
largely revert to existing practice, in which the Registration Agency 
provides significant support, and lessened the frequency with which the 
analysis has to be done--resulting in minimal additional burden for 
sponsors. Further, the Department intends to build a data tool that 
will assist in future iterations of the utilization analysis. Although 
this data tool will reduce burden for sponsors to conduct the 
utilization analysis in the long-run, the Department's analysis has 
accounted for additional upfront costs for time associated with 
familiarization with the tool for sponsors that choose to use it. In 
total, the Department is providing a data tool that will assist 
sponsors with conducting their utilization analysis approximately every 
five years. The Department has calculated costs to sponsors both for 
familiarization with the data tool and for using the tool to assist in 
conducting the analysis.
d. Invitation to Self-Identify as an Individual With a Disability
    Comments: The NPRM estimated that 10 individuals would apply to 
each of 5 job postings per year, would choose to self-identify their 
disability status, and that an administrative assistant would spend 30 
minutes reviewing and record-keeping the identification forms. Several 
commenters pointed out that the proposed rule would require self-
identification to happen at 3 different points in the process. 
Additionally, it was noted that if the Final Rule requires additional 
outreach, a job posting could receive more than 10 applicants.
    Department Response: The Department has updated the economic 
analysis to reflect that the invitation to self-identify takes place 
two times. In addition, the Department has increased the assumed number 
of applicants to a job posting to 15 individuals based our historical 
experience and in consultation with program staff. The Department has 
observed that rural areas tend to receive 10 applications per 
apprentice opening, high density areas receive 12-15, and statewide 
programs receive more than 15 applications. In order to avoid under-
estimating the costs, the Department assumes 15 applications across all 
program sponsors. In addition, the Department has updated this 
provision to allow for a 2-year phase-in of the requirement.
e. Overall Rule Costs and ERISA
    Comments: Several commenters indicated that many apprenticeship 
sponsors are joint labor-management apprenticeship funds covered by 
ERISA.

[[Page 92085]]

These sponsors are not legally allowed to use funds to promote social, 
environmental, or other public policy causes at the expense of the 
interests of the plans' participants and beneficiaries. Some indicated 
that this may reduce the number of apprenticeship sponsors because 
firms subject to both requirements (the Final Rule and ERISA) may leave 
the apprenticeship program.
    Department Response: The Final Rule specifies that sponsors who are 
operating under employee benefit plans governed by ERISA may now be 
eligible to use certain plan assets that support quality pre-
apprenticeship programs and other workforce pipeline resources. Where 
support for such programs is necessary to maintain the plan's 
registration, or is otherwise advantageous to the plan, assets of the 
plan may be used to defray the reasonable expenses of such support. 
Therefore, the Department does not anticipate the number of jointly-
sponsored apprenticeship programs to decrease because of the 
requirements of the Final Rule.
f. Percentage of Firms With Fewer Than Five Apprentices
    Comments: The NPRM estimated that 75 percent of sponsors would have 
fewer than 5 apprentices and thus be exempt from certain Final Rule 
requirements. One commenter took issue with the assumption that the 25 
percent of sponsors with five or more apprentices will be static over 
time. Due to increased federal funding launching apprenticeship 
programs into fields not typically represented (e.g., information 
technology), the commenter predicted that much of the growth of the 
program would come from new programs with more than five apprentices.
    Department Response: While the Department agrees that the 
percentage of sponsors with 5 or more apprentices may change year-to-
year and we expect the number of sponsors to increase over time, we 
expect the increase to occur across all industries. This includes those 
with long-time apprenticeship programs and those within new industries. 
The Department is not aware of information suggesting that this growth 
would be biased in favor of large or small sponsors, as new programs 
can be developed by any size of sponsor. Consequently, we assume that 
the percentage of sponsors with 5 or more apprentices will remain 
constant as the Apprenticeship program grows.\91\
---------------------------------------------------------------------------

    \91\ The Department has estimated that the average number of 
apprentices per sponsor will increase over time in its model of 
apprentice and sponsor growth. This does not, however, directly 
contradict the assumption that the share of sponsors with 5 or more 
apprentices will remain constant. The average number of apprentices 
per sponsor can increase because both small and large sponsors grow 
their programs, but if small programs continue to keep their 
programs below 5 apprentices, the shares that have 5 or more 
apprentices and that have fewer than 5 apprentices can remain 
constant. Without being aware of any information that suggests that 
growth will be biased in favor of large or small sponsors or that 
suggests a large number of small sponsors will choose to increase 
the size of their programs to 5 apprentices or above, the Department 
believes that assuming the percentage of sponsors with 5 more 
apprentices will remain constant is the correct approach.
---------------------------------------------------------------------------

3. Economic Analysis
    The Department derives benefit and cost estimates by comparing the 
baseline (the program benefits and costs under the 1978 Final Rule 
\92\) with the benefits and costs of implementing the provisions in the 
Final Rule. Only the additional benefits and costs that are expected to 
be incurred due to the changes in this regulation are included in the 
analysis.
---------------------------------------------------------------------------

    \92\ 43 FR 20760, May 12, 1978 (requiring the inclusion of 
female apprentices in AAPs).
---------------------------------------------------------------------------

    The Department sought to quantify and monetize the benefits and 
costs of the Final Rule where feasible. Where we were unable to 
quantify benefits and costs--for example, due to data limitations--we 
describe them qualitatively. This analysis covers a 10-year period 
(2017 through 2026) to ensure it captures major benefits and costs that 
accrue over time. In this analysis, we have sought to present benefits 
and costs both undiscounted and discounted at 7 and 3 percent, 
respectively, following OMB guidelines.\93\
---------------------------------------------------------------------------

    \93\ OMB Circular No. A-4, ``Regulatory Analysis,'' M-03-21 
(Sept. 2003).
---------------------------------------------------------------------------

    The 10-year monetized costs of the Final Rule range from $370.27 
million to $458.90 million (with 7 and 3 percent discounting, 
respectively). The 10-year monetized benefits of the Final Rule range 
from $4.56 million to $5.83 million (with 7 and 3 percent discounting, 
respectively). The annualized costs of the Final Rule range from $52.72 
million (with 7 percent discounting) to $53.80 million (with 3 percent 
discounting). The annualized monetized benefits of the Final Rule are 
$0.65 million (with 7 percent discounting) and $0.68 million (with 3 
percent discounting).
    In addition, we expect the Final Rule to result in several 
overarching benefits to apprenticeship programs as well as some 
specific benefits resulting from a clearer and more systematic rule. As 
discussed below, equal opportunity policies may result in both 
efficiency gains and distributional impacts for society. The Final Rule 
may reduce barriers to entry in apprenticeship programs for women, 
minorities, persons with disabilities, and LGBT individuals, fostering 
an equitable distributional effect, and may alleviate the 
inefficiencies in the job market these barriers create. After 
considering both the quantitative and qualitative benefits of the Final 
Rule, the Department has concluded that the benefits would justify the 
costs of the Final Rule.
    In the remaining sections, we first present the overall benefits of 
the Final Rule, followed by a subject-by-subject analysis of the costs 
and benefits. We then present a summary of the costs and benefits, 
including total costs over the 10-year analysis period. Finally, we 
conclude with a cost-benefit analysis of five regulatory alternatives 
(including the Final Rule).
a. Potential Overall Benefits and Distributional Effects of the Final 
Rule
    This subsection presents the economic benefits and distributional 
effects of policy interventions related to equal employment 
opportunity. Information on these impacts is derived from an extensive 
body of empirical labor market research published over the last two 
decades in peer-reviewed publications. We assume that similar effects 
would be attributable to this rule's combination of provisions, not 
necessarily to a single provision. Some additional benefits associated 
with specific provisions of the Final Rule are presented in the next 
section.
    The Final Rule clarifies and improves the regulations on equal 
opportunity employment from the 1978 Final Rule by encouraging better 
recruiting and hiring practices. These improved affirmative action 
policies may lead to both efficiency effects and distributional 
effects, as directed by OMB Circular A-4.\94\
---------------------------------------------------------------------------

    \94\ OMB Circular No. A-4, p. 14.
---------------------------------------------------------------------------

    Equal opportunity hiring practices increase diversity in the 
workplace, which has been shown to have positive effects. Several 
studies have found that well-managed diversity can add value by 
increasing the variety of perspectives in a team or company, therefore 
fostering creativity.\95\ Research has also proven that diverse groups 
can perform better on problem-solving tasks than a

[[Page 92086]]

group of strong individual performers.\96\ Having diverse perspectives 
and diverse ways of interpreting and acting on new information improves 
the collective ability to both anticipate challenges and find effective 
solutions. Increased diversity can also be beneficial to the employer, 
as evidenced by a 2007 paper by Hernandez and McDonald, which studied 
the effects of hiring workers with disabilities. They found that 
compared to those without a disability, disabled workers had longer 
tenure, reduced absenteeism, identical job performance, and did not 
require significantly more supervision.\97\ Further, a study by 
Schotter and Weigelt (1992) showed that equal opportunity policies 
increase the efforts of all workers, not just the underutilized 
workers.\98\
---------------------------------------------------------------------------

    \95\ Bassett-Jones, N., ``The Paradox of Diversity Management, 
Creativity, and Innovation,'' Creativity and Innovation Management, 
14 (2005); Orlando, R., ``Racial Diversity, Business Strategy, and 
Firm Performance: A Resource-Based View,'' The Academy of Management 
Journal, 43 (2000); Roberge, M., and van Dick, R., ``Recognizing the 
Benefits of Diversity: When and How Does Diversity Increase Group 
Performance?,'' Human Resource Management Review, 20 (2010).
    \96\ Page, Scott. E., ``The Difference: How the Power of 
Diversity Created Better Groups, Firms, Schools, and Societies,'' 
Princeton University Press, (2011).
    \97\ Hernandez, B., & McDonald, K. (2007). ``Exploring the 
bottom line: A study of the costs and benefits of workers with 
disabilities.'' Chicago, IL: DePaul University.
    \98\ Schotter, A., and Weigelt, K. (1992). ``Asymmetric 
Tournaments, Equal Opportunity Laws and Affirmative Action: Some 
Experimental Results,'' The Quarterly Journal of Economics.
---------------------------------------------------------------------------

    Among all diversity-improvement measures, affirmative action 
programs have been shown to lead to the broadest increases in 
diversity.\99\ Further, they have not been found to generate losses in 
efficiency for an organization.\100\ Although evidence suggests that 
minorities who benefit from affirmative action often have weaker 
credentials, there is little evidence suggesting that their labor 
market performance is weaker.\101\ Even when job applicants have 
comparable credentials, employers have still been found to discriminate 
based on race, and therefore lose out on this skilled workforce.\102\ 
Without policies to combat this discrimination, workers in groups that 
are subject to discrimination are often left with the belief that 
certain jobs are unattainable, and lack the incentive to improve their 
observable skills or invest in education. Personal education and 
training investments not only help the individual, but may have 
positive externalities in the long run, as discussed further below. 
Additionally, by hiring more workers from underrepresented groups, 
firms naturally create mentors and expand networking opportunities for 
these groups.\103\ These two factors can increase employee retention, 
directly benefiting the apprenticeship sponsors who will see the return 
on their initial recruitment and training investments.
---------------------------------------------------------------------------

    \99\ Kalev, A., Kelly, E., and Dobbin, F (2006), ``Best 
Practices or Best Guesses? Assessing the Efficacy for Corporate 
Affirmative Action and Diversity Policies,'' American Sociological 
Review, 71.
    \100\ Holzer, H. and Neumark, D. (2000). ``Assessing Affirmative 
Action,'' Journal of Economic Literature, 38.
    \101\ Holzer, H. (2007). ``The Economic Impact of Affirmative 
Action in the US,'' Swedish Economic Policy Review 53.
    \102\ Bertrand, M. and Mullainathan, S. (2002) ``Are Emily and 
Brenden More Employable than Lakisha and Jamal? A Field Experiment 
on Labor Market Discrimination,'' Chicago Booth Review.
    \103\ Blau, F. and Winkler, A. (2005), ``Does Affirmative Action 
Work?'' Countering Stereotypes by Changing the Final Rule, Regional 
Review Q1.
---------------------------------------------------------------------------

    Anti-discrimination policies provide economic benefits to 
disadvantaged groups, in the form of both higher wages and increased 
employment. One study estimated that 15 to 20 percent of aggregate wage 
growth between 1960 and 2008 was attributable to the increase in 
workforce participation by women and minorities, including 
participation increases from the adoption of civil rights laws and 
changing social norms.\104\ The Civil Rights Act of 1964 improved both 
employment levels and wages for Black workers, as evidenced in cases 
such as the South Carolina textile industry.\105\ The implementation of 
affirmative action policies has also been shown to increase the odds of 
women and minorities in management.\106\ Not only do these efforts help 
disadvantaged workers, but effects such as reduced unemployment benefit 
the economy as a whole.
---------------------------------------------------------------------------

    \104\ Hsieh, C., Hurst, E., Jones, C., and Klenow, P. (2013). 
``The Allocation of Talent and U.S. Economic Growth,'' NBER Working 
Paper.
    \105\ Heckman, J., and Payner, B. (1989). ``Determining the 
Impact of Federal Anti-Discrimination Policy on the Economic Status 
of Blacks: A Study of South Carolina,'' 79 American Economic Review, 
138.
    \106\ Kalev, A., Kelly, E., and Dobbin, F (2006), ``Best 
Practices or Best Guesses? Assessing the Efficacy for Corporate 
Affirmative Action and Diversity Policies,'' American Sociological 
Review, 71.
---------------------------------------------------------------------------

    The Final Rule can also be expected to result in a beneficial 
distributional effect. The direct beneficiaries of the Final Rule will 
be underrepresented workers: Women, minorities, and persons with 
disabilities. According to Holzer and Neumark (2000), ``affirmative 
action offers significant redistribution toward women and minorities.'' 
Evidence indicates that women are more likely than men to be classified 
as working poor and that Blacks or African Americans and Hispanics or 
Latinos are more than twice as likely as their white counterparts to be 
among the working poor.\107\ In addition, persons with disabilities 
have a poverty rate of 28.5 percent, over twice as high as the poverty 
rate of persons without disabilities of 12.3 percent.\108\ Education 
and training investments for these underrepresented groups can result 
in lifetime earnings benefits. Apprenticeship participants see average 
lifetime earnings benefits of nearly $100,000, and for those completing 
apprenticeships, there are average lifetime earnings benefits of over 
$240,000 compared to similar individuals who do not enter an 
apprenticeship.\109\ Construction, the largest represented industry 
sector in the National Registered Apprenticeship System, offers a 
higher median wage than many traditionally female-dominated jobs and 
many other jobs that do not require a college education for 
advancement, thus providing opportunity to move out of poverty or 
working poor status.\110\ Reducing barriers to entry in apprenticeship 
programs for women, minorities, persons with disabilities, people over 
age 40, and LGBT individuals can have additional long term impacts to 
beneficiaries; one study found that individuals that participated in an 
apprenticeship program are 8.6 percent more likely to be employed both 
six and nine years after participation.\111\
---------------------------------------------------------------------------

    \107\ ``A Profile of the Working Poor, 2014'' Report 1060, 
Bureau of Labor Statistics.
    \108\ These poverty rates are for individuals ages 18 to 64. 
U.S. Census Bureau, Current Population Reports, ``Income and Poverty 
in the United States: 2014,'' available at https://www.census.gov/content/dam/Census/library/publications/2015/demo/p60-252.pdf (last 
accessed June 10, 2016).
    \109\ Reed, D., Yung-Hsu Liu, A., Kleinman, R., et al., ``An 
effectiveness assessment and cost-benefit analysis of registered 
apprenticeship in 10 states,'' Mathematica Final Report 06689.090 
and 40096, Mathematica Policy Research, (2012).
    \110\ Median weekly earnings of full-time wage and salary 
workers in Construction and Extraction occupations were $749 in 
2015. This is significantly higher than the earnings of workers in 
many traditionally female-dominated occupations such as childcare 
workers; secretaries and administrative assistants; receptionists 
and information clerks; and nursing, psychiatric, and home health 
aides. The median weekly earnings of full-time wage and salary 
workers in these occupations in 2015 were $437, $687, $575, and $467 
respectively. Source: Bureau of Labor Statistics analysis of Current 
Population Survey data available at http://www.bls.gov/cps/cpsaat39.htm.
    \111\ Reed, D., Yung-Hsu Liu, A., Kleinman, R., et al., ``An 
effectiveness assessment and cost-benefit analysis of registered 
apprenticeship in 10 states,'' Mathematica Final Report 06689.090 
and 40096, Mathematica Policy Research, (2012).
---------------------------------------------------------------------------

    As apprenticeship expands in the United States, the Department is 
committed to ensuring that this expansion benefits the entire American 
workforce, including individuals with disabilities, and that it 
provides them a path to good jobs and careers with living wages such as 
those that apprenticeships offer. To illustrate the impacts the Final 
Rule will have on individuals with disabilities, the

[[Page 92087]]

Department estimated the number of individuals with disabilities 
expected to benefit from its provisions if the Final Rule's utilization 
targets are met and apprenticeship increases by the growth rates 
assumed in this analysis. We first obtained estimates of the prevalence 
of disabilities among workers in different industries by analyzing 
American Community Survey (ACS) data on workers ages 18 to 64 from the 
years 2008 to 2012. These estimates are shown in Exhibit 1. Next, in 
the absence of data relating to the number of persons with disabilities 
enrolled in apprenticeship programs by industry, we assumed that in a 
given industry the share of new apprenticeship enrollees that are 
persons with disabilities will be the same as the share of workers in 
that industry with disabilities. We see, for example that in the 
Construction industry, 5.4 percent of all workers have a disability. We 
assume, therefore, that 5.4 percent of apprentices in the Construction 
industry similarly have disabilities and that in the absence of the 
Final Rule that percentage would be maintained as employers enrolled 
new apprentices with disabilities at the same rate as they dismissed 
apprentices with disabilities. The utilization goal for individuals 
with disabilities set forth in the Final Rule is 7 percent of 
enrollees, thus an additional 1.6 percent of enrollees (7 percent goal 
minus the 5.4 percent assumed to be currently enrolled) will be 
expected to be persons with disabilities if the utilization goal of 7 
percent is attained. Because the number of new apprentices in a 10-year 
span (2017-2026) in Construction is projected by the Department to be 
276,591 the Final Rule's goal of a 7 percent enrollment rate would 
result in (0.07-0.054) x 276,591 = 4,342 more persons with disabilities 
as new apprentices in the Construction industry.
    This calculation, when repeated over all industries, gives a total 
estimate of an additional 9,243 individuals with disabilities who would 
be enrolled out of the total of 541,061 new apprentices projected over 
the next 10 years (2017-2026).

                          Exhibit 1--Impact Estimates for Individuals With Disabilities
----------------------------------------------------------------------------------------------------------------
                                                     Share of
                                                    workers in     Projected new                   Projected new
                    Industry                       industry with    apprentices       Gap (%)       apprentices
                                                   disabilities   over a 10-year                       with
                                                        (%)           period                       disabilities
                                                             (A)             (B)      (C) = 7%-A     (D) = B * C
----------------------------------------------------------------------------------------------------------------
Administrative-Support..........................             5.5           2,389             1.5              36
Agriculture.....................................             6.2             759             0.8               6
Construction....................................             5.4         276,591             1.6           4,342
Education.......................................             4.3          64,686             2.7           1,747
Oil, Gas, Mineral Extraction....................             5.7             266             1.3               3
Finance.........................................             3.9             218             3.1               7
Information.....................................             4.8           1,017             2.2              22
Medical Services................................             5.1           8,810             1.9             167
Manufacturing...................................             5.3          61,516             1.7           1,021
Professional....................................             4.8           1,096             2.2              24
Retail..........................................             5.9           4,747             1.2              55
Personal Service and Care.......................             8.7             791            -1.7             -14
Service.........................................             6.0           2,987             1.0              31
Transportation..................................             6.2          64,017             0.8             512
Utilities.......................................             4.5          48,134             2.5           1,208
Wholesale.......................................             4.9           3,576             2.1              75
                                                                 -----------------------------------------------
    Total.......................................  ..............         541,601  ..............           9,243
----------------------------------------------------------------------------------------------------------------
Source: Department tabulations, November 2014 and ACS 2008-2012.

4. Subject-by-Subject Analysis
    The Department's analysis considers the expected benefits (beyond 
those discussed above) and costs of the changes to part 30. This 
analysis considers the impacts of each change to part 30 separately. 
This analysis measures the costs and benefits as they accrue to 
sponsors, the Office of Apprenticeship at the Department, and State 
partnering agencies. It is estimated that the number of sponsors will 
grow over time and our annual cost calculations reflect this growth. 
This analysis primarily discusses how the first-year costs were 
calculated and indicates that the analysis repeats that calculation 
across the 10-year time frame using the appropriate number of sponsors 
in any given year. Exhibit 2 presents the number of total and new 
sponsors in each year.\112\
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    \112\ The Department determined the growth rates applied to 
apprenticeships and apprenticeship sponsors in each industry by 
examining previous program growth in the RAPIDS database and 
extrapolating based on historical trends and regulatory 
requirements. The growth model also accounted for the increased 
budgetary resources the program has received to expand the program. 
In the growth model, the Department used higher industry-specific 
growth rates in 2017 than in 2026 to reflect the fact that the 
Department expects faster initial growth in the first years of the 
10-year window followed by somewhat slower steady growth in the 
final years. Over the course of the 10-year window, the growth rates 
steadily decrease from the higher 2017 rates to the lower 2026 
rates. Were higher sponsor growth rates in each industry to be 
assumed to approximately account for the President's ambitious goal 
to double the number of apprentices by the end of 2019 and should 
those higher growth rates be continued in subsequent years, the 
total cost of the Final Rule would increase from $370.27 million to 
$708.65 million (with 7 percent discounting) and from $458.90 
million to $909.22 million (with 3 percent discounting) over the 10-
year period (2017-2026). The monetized benefit would also increase 
from $4.56 million to $9.14 million (with 7 percent discounting) and 
from $5.85 million to $11.95 million (with 3 percent discounting) 
over the 10-year period.

          Exhibit 2--Total Active and New Sponsors (2017-2026)
------------------------------------------------------------------------
                                           Total active    New sponsors
                  Year                       sponsors          \113\
------------------------------------------------------------------------
2017....................................          23,811           2,942
2018....................................          25,231           3,005
2019....................................          26,606           3,046
2020....................................          27,915           3,062
2021....................................          29,137           3,052
2022....................................          30,250           3,013
2023....................................          31,233           2,946
2024....................................          32,069           2,850
2025....................................          32,739           2,727

[[Page 92088]]

 
2026....................................          33,230           2,578
------------------------------------------------------------------------

a. Familiarization With the Final Rule
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    \113\ Note that the number of new sponsors in a given fiscal 
year is larger than the difference between that year's total active 
sponsors and the previous year's total active sponsors because the 
Department has accounted for the fact that there will be some 
turnover among sponsors as some sponsors end their programs and are 
replaced by new sponsors. To calculate this annual turnover, the 
Department looked at historical RAPIDS data from FY2010 through 
FY2015, and determined that, on average, approximately 6.3 percent 
of total active sponsors in a given year were new sponsors that had 
simply replaced old sponsors in the total active sponsor count. To 
calculate total new sponsors in a given year in the analysis's 10-
year window, the Department multiplied this 6.3 percent by the 
number of total active sponsors in a given year and added this to 
the difference between each year's total active sponsor count and 
the total active sponsor count of the preceding year.
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    To estimate the cost of initial rule familiarization, we multiplied 
the number of apprenticeship sponsors in 2017 (23,811)--the first full 
year in which the Final Rule will be in effect--by the amount of time 
required to read the new rule (4 hours) and by the average hourly 
compensation of a private-sector human resources manager ($73.90).\114\ 
In the first year of the Final Rule, the cost to sponsors amounts to 
approximately $7.04 million in labor costs. We repeated this 
calculation for each remaining year in the analysis period using the 
estimated number of new sponsors for each year, resulting in an 
annualized cost ranging from $1.69 million to $1.57 million with 7 
percent and 3 percent discounting, respectively.\115\ In subsequent 
years, this cost is only applied to new sponsors because existing 
sponsors will have already familiarized themselves with the Final Rule 
in previous years.
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    \114\ We calculated the hourly compensation rate for a human 
resource manager (Occupation code 11-3121) by multiplying the median 
hourly wage of $51.32 (source: Bureau of Labor Statistics (BLS), May 
2015 National Occupation Employment and Wage Estimates by Ownership: 
Cross-industry, Private ownership only, http://www.bls.gov/oes/current/000001.htm#11-0000) by 1.44 to account for private-sector 
employee benefits (source: BLS, June 2016 Employer Costs for 
Employee Compensation, http://www.bls.gov/news.release/ecec.nr0.htm 
BLS ECI series CMU2010000000000D, CMU2010000000000P, 
CMU2020000000000D, CMU2020000000000P). The hourly compensation rate 
for a human resource manager is thus $73.90 ($51.32 x 1.44).
    \115\ To calculate the labor burden, we multiplied the time to 
complete the task by the hourly compensation rate for sponsors 
($73.90 x 4 = $295.60). The total cost for sponsors in 2017 is the 
labor cost multiplied by the total number of sponsors (23,811), or 
$7.04 million ($295.60 x 23,811). This burden occurs in the first 
year of the analysis period for all sponsors, and every year 
thereafter only for new sponsors.
---------------------------------------------------------------------------

b. Addition of Age (40 or Older), Genetic Information, Sexual 
Orientation, and Disability to the List of Protected Bases
    The Final Rule updates the EEO standards to include age (40 or 
older), genetic information, sexual orientation, and disability to the 
list of protected bases upon which sponsors of registered 
apprenticeship programs must not discriminate (Sec.  30.3(a)). As 
explained in the preamble, the addition of these bases to the types of 
discrimination prohibited by part 30 should not result in any 
significant additional cost to sponsors as most of the National 
Registered Apprenticeship System's sponsors must already comply with 
Federal, State, and local laws and regulations prohibiting or otherwise 
discouraging discrimination against applicants and employees based on 
age (40 or older), genetic information, sexual orientation, and 
disability. Even among those sponsors not covered by such laws, many 
have internal EEO policies that prohibit discrimination on these bases. 
Therefore, the Department does not expect that the addition of age (40 
or older), genetic information, sexual orientation, and disability to 
the list of protected bases in Sec. Sec.  30.1(a) and 30.3(a) would 
result in any significant costs to sponsors.
c. Specific Affirmative Steps To Provide Equal Opportunity
    The Final Rule requires all sponsors, regardless of size, to take 
certain affirmative steps to provide equal opportunity in 
apprenticeship. The Final Rule language in Sec.  30.3(b) will, for the 
first time, obligate sponsors to take the following basic steps to 
ensure EEO in apprenticeship.
    First, sponsors are required to designate an individual or 
individuals to be responsible and accountable for overseeing the 
sponsor's commitment to EEO (Sec.  30.3(b)(1)). The Department expects 
the burden of this requirement on sponsors to be minimal. Most, if not 
all, sponsors have an apprenticeship coordinator who is in charge of 
the apprenticeship program. The Department anticipates that this 
requirement will be fulfilled by individuals currently providing 
coordination and administrative oversight functions for the program 
sponsor. We expect that the designation will be a relatively minor 
administrative matter, but one that will result in institutionalizing a 
sponsor's commitment to equal opportunity.
    Second, the Final Rule requires for the first time that sponsors 
post their equal opportunity pledge on bulletin boards and through 
electronic media, such that it is accessible to all apprentices and 
applicants to apprenticeship programs (Sec.  30.3(b)(2)). We assume 
that sponsors choose to put up a physical copy of the pledge and also 
post it on their Web site.\116\ The cost of this requirement is 
minimal. The Department assumes it will take a sponsor 5 minutes (0.08 
hour) to post the pledge and that this task will be performed by an 
administrative assistant at an hourly compensation rate of $23.10.\117\ 
We multiplied the time estimate for this provision by the hourly 
compensation rate to obtain a total labor cost per sponsor of $1.85 
($23.10 x 0.08). Updating the EO pledge to include age (40 or older), 
genetic information, sexual orientation, and disability will not create 
any new burden because it is already covered by the existing 
requirements. To estimate the materials cost, the Department assumed 
that the pledge is one page, and that the cost per page for 
photocopying is $0.08, resulting in a materials cost of $0.08 ($0.08 x 
1) per sponsor. The total cost of putting up a physical copy of the 
pledge per sponsor is therefore $1.93 ($1.85 + $0.08).
---------------------------------------------------------------------------

    \116\ Some sponsors may already be undertaking some actions that 
would count toward compliance with this obligation and, 
consequently, the cost calculation for this provision is likely an 
overestimate.
    \117\ We calculated the hourly compensation rate for an 
administrative assistant (Occupation code: 43-6014) by multiplying 
the median hourly wage of $16.04 (source: BLS, May 2015 National 
Occupation Employment and Wage Estimates by Ownership: Cross-
industry, Private ownership only, http://www.bls.gov/oes/current/000001.htm#11-0000) by 1.44 to account for private-sector employee 
benefits. Thus, the hourly compensation rate for an administrative 
assistant is $23.10 ($16.04 x 1.44).
---------------------------------------------------------------------------

    The Department also assumes it will take a sponsor 10 minutes (0.17 
hours) to post the pledge on its Web site and that this task will be 
performed by a web developer at an hourly compensation rate of 
$45.24.\118\ The cost of posting the pledge on the sponsor's Web site 
is $7.69 ($45.24 x 0.17). The total per sponsor cost of this provision, 
including the posting of physical copy of the pledge and the posting of 
the

[[Page 92089]]

pledge on the sponsor's Web site, is therefore $9.62 ($1.93 + $7.69).
---------------------------------------------------------------------------

    \118\ We calculated the hourly compensation rate for a web 
developer (Occupation code: 15-1134) by multiplying the median 
hourly wage of $31.42 (source: BLS, May 2015 National Occupation 
Employment and Wage Estimates by Ownership: Cross-industry, Private 
ownership only, http://www.bls.gov/oes/current/000001.htm#11-0000) 
by 1.44 to account for private-sector employee benefits. Thus, the 
hourly compensation rate for a web developer is $45.24 ($31.42 x 
1.44).
---------------------------------------------------------------------------

    Multiplying this sum ($9.62) by the total number of sponsors 
(23,811) in the first year (2017) results in a cost of $229,033 for 
this provision. The posting of the equal opportunity pledge is a one-
time cost; costs after the first year are only incurred by new 
sponsors. Looking over the full ten-year period, the annualized cost of 
this provision is $55,015 (with 7 percent discounting) and $51,044 
(with 3 percent discounting).
    The Final Rule Sec.  30.3(b)(2) also requires each sponsor to 
conduct orientation and periodic information sessions for apprentices, 
journeyworkers who directly supervise apprentices, and other 
individuals connected with the administration or operation of the 
sponsor's apprenticeship program to inform and remind such individuals 
of the sponsor's equal employment opportunity policy with regard to 
apprenticeship. The orientation and information sessions required by 
Sec.  30.3(b)(2)(iii) underscore the sponsor's commitment to equal 
opportunity and its affirmation action obligations. These sessions also 
institutionalize a sponsor's EEO policies and practices, providing a 
mechanism by which the sponsor may inform everyone connected with the 
apprenticeship program of the sponsor's obligations under part 30, and 
ensure that all individuals involved in the program understand these 
obligations and the policies instituted to implement them. Under Sec.  
30.3(b)(4)(i), sponsors are also required to provide anti-harassment 
training, which will be incorporated into these periodic orientation 
and information sessions. This training must include active 
participation by trainees, such as attending a training session in 
person or completing an interactive training online and will include at 
a minimum communications to apprentices and journeyworkers who directly 
supervise apprentices that harassing conduct will not be tolerated, the 
definition of harassment and types of conduct that constitute 
harassment, and the right to file a harassment complaint.
    Using 2015 data from the Registered Apprenticeship Partners 
Information Data System (RAPIDS) and the growth model for 
apprenticeship and sponsors in this analysis, the Department calculated 
that there are on average 24 apprentices per sponsor in 2017.\119\ The 
Department further assumes a one-to-one ratio between apprentice and 
journeyworker in estimating the cost of orientations and periodic 
information sessions. The Department first estimated that the 23,811 
sponsors in the first year (2017) will hold one 45-minute regular 
orientation and information session with an average of 24 apprentices 
($18.72 per hour) \120\ and 21 journeyworkers ($31.68 per hour) \121\ 
per sponsor. The Department estimated that a human resource manager 
($73.90 per hour) will need to spend 2 hours to develop and prepare 
written materials for the session in the first year, and the 2 hours 
also cover maintaining the training materials which were already saved 
on the computer ($3.52 million = 23,811 sponsors x 2 hours x $73.90).
---------------------------------------------------------------------------

    \119\ The Department estimated that there are on average 24 
apprentices per sponsor in 2017; 26 in 2018; 27 in 2019; 28 in 2020; 
29 in 2021; 31 in 2022; 32 in 2023; 32 in 2024; 33 in 2025; and 34 
in 2026.
    \120\ We calculated the hourly compensation rate for an 
apprentice by multiplying the median hourly wage of $13.00 (as 
published by PayScale for an apprentice electrician) by 1.44 to 
account for private-sector employee benefits (source: OES survey). 
Thus, the hourly compensation rate for an apprentice is $18.72 
($13.00 x 1.44). We used the wage rate for an apprentice electrician 
in this analysis because electrician is one of the most common 
occupations in the apprenticeship program.
    \121\ We calculated the hourly compensation rate for a 
journeyworker by multiplying the median hourly wage of $22.00 (as 
published by PayScale for a journeyworker electrician) by 1.44 to 
account for private-sector employee benefits (source: OES survey). 
Thus, the hourly compensation rate for a journeyworker electrician 
is $31.68 ($22.00 x 1.44). We used the wage rate for a journeyworker 
electrician in this analysis because electrician is one of the most 
common occupations in the apprenticeship program.
---------------------------------------------------------------------------

    This calculation results in a total cost for this provision of 
approximately $26.44 million in the first year (2017).\122\ All 
sponsors are assumed to hold one 45-minute regular orientation and 
information session annually. This calculation is repeated in 
subsequent years (with the requirement that an HR manager develop 
written materials only applicable for new sponsors). The annualized 
cost ranges from $34.18 million (with 7 percent discounting) to $34.87 
million (with 3 percent discounting).
---------------------------------------------------------------------------

    \122\ The total cost was derived from the cost for an HR manager 
to develop materials (2 hours) and attend the training (0.75 hours), 
as well as 24 apprentices and 24 journeyworkers to attend the 
training. In 2017, with 23,811 active sponsors, material development 
cost $3.52 million ($73.90 x 2 x 23,811), HR manager attendance cost 
$1.32 million ($73.90 x 0.75 x 23,811), apprentice attendance cost 
$8.03 million ($18.72 x 0.75 x 24 x 23,811), and journeyworker 
attendance cost $13.58 million ($31.68 x 0.75 x 24 x 23,811) the 
total cost for all 23,811 sponsors is $23.74 million in 2017.
---------------------------------------------------------------------------

    Third, under the existing Sec.  30.4(c) sponsors are required to 
engage in appropriate outreach and recruitment activities to 
organizations that serve women and minorities, and the regulations list 
the types of appropriate activities a sponsor is expected to undertake. 
The exact mix of activities depends on the size and type of the program 
and its resources; each sponsor, however, is ``required to undertake a 
significant number of appropriate activities'' under the existing Sec.  
30.4. Under the Final Rule, all sponsors are required to reach out to a 
variety of recruitment sources, including organizations that serve 
individuals with disabilities, to ensure universal recruitment (Sec.  
30.3(b)(3)). Including individuals with disabilities among the groups 
of individuals to be recruited is a new focus for sponsors. Sponsors 
are required to develop a list of recruitment sources that generate 
referrals of women, minorities, and persons with disabilities with 
contact information for each source. Further, sponsors are required to 
notify these sources in advance of any apprenticeship opportunities; 
while a firm deadline is not set, the Final Rule suggests 30 days' 
notice if possible under the circumstances. This may lead employers to 
incur costs due to the additional delay in the hiring process resulting 
from this rule. The Department, however, does not have enough 
information to estimate this potential cost.
    The kinds of activities we anticipate the sponsor engaging in to 
satisfy this requirement include distributing announcements and flyers 
detailing job prospects, holding seminars, and visiting some of the 
sources that will likely provide access to individuals with 
disabilities. The Department assumed that the cost to sponsors to 
distribute information to persons with disabilities will be the labor 
cost to comply with this provision. We also assumed that the activity 
to satisfy this provision will be performed by a human resource manager 
and an administrative assistant with hourly compensation rates of 
$73.90 and $23.10, respectively. We assumed that this task will take 30 
minutes (0.5 hour) of a human resource manager's time and 30 minutes 
(0.5 hour) of an administrative assistant's time per targeted source. 
We calculated the cost of this provision per affected sponsor by 
multiplying the time each staff member devotes to this task by their 
associated hourly compensation rates. We then multiplied the total 
labor cost by the assumed number of outreach sources (5) and by the 
total number of sponsors.\123\ All sponsors are assumed

[[Page 92090]]

to conduct this outreach in all years.\124\ The resulting cost of this 
provision is $5.77 million in the first year, with an annualized cost 
ranging from $6.94 million (with 7 percent discounting) to $7.02 
million (with 3 percent discounting).
---------------------------------------------------------------------------

    \123\ To estimate the cost of this provision, we calculated the 
labor cost per affected sponsor by multiplying the time required for 
the task by the hourly compensation rate for both a human resource 
manager ($73.90 x .5 = $36.95) and an administrative assistant 
($23.10 x .5 = $11.55). We then multiplied the total per-sponsor 
labor cost by the total number of sponsors in 2017 (23,811) and by 
the five sites for which each sponsor is to provide outreach. This 
results in a total cost of $5.77 million (($36.95 + $11.55) x 23,811 
x 5) in 2017. We repeated this calculation for each year of the 
analysis period, using the projected number of sponsors for each 
year.
    \124\ This cost for all sponsors may be an overestimate because 
some sponsors are already undertaking some outreach activities on 
their own under the existing regulations.
---------------------------------------------------------------------------

    Because universal outreach may involve a range of activities, the 
Department conducted a sensitivity analysis on the total time allocated 
to universal outreach. Mirroring the calculation above, the Department 
estimated a low allocation of time (15 minutes, or 0.25 hour) and a 
high allocation of time (1 hour and 15 minutes, or 1.25 hour) for both 
the administrative assistant and the human resource manager. The 
resulting range of costs for the first year is $2.89 million to $14.44 
million with an annualized cost ranging from $3.47 million (with 7 
percent discounting) to $3.51 million (with 3 percent discounting) at 
the lower bound to $17.35 million (with 7 percent discounting) to 
$17.56 million (with 3 percent discounting) at the higher bound.\125\
---------------------------------------------------------------------------

    \125\ To estimate the range of costs for this provision, we 
calculated the labor cost per affected sponsor by multiplying the 
time required for the task by the hourly compensation rate for both 
a human resource manager ($73.90 x 0.25 = $18.48 for the low cost 
and $73.90 x 1.25 = $92.38 for the high cost) and an administrative 
assistant ($23.10 x 0.25 = $5.78 for the low cost and $23.10 x 1.25 
= $28.88 for the high cost). We then multiplied the total per-
sponsor labor cost by the total number of sponsors in 2017 (23,811) 
and by the five sites for which each sponsor is to provide outreach. 
This results in a total cost of $2.89 million for the low time 
assumption (($18.48 + $5.78) x 23,811 x 5)) and $14.44 million for 
the high time assumption (($92.38 + $28.88) x 23,811 x 5) in 2017. 
We repeated this calculation for each year of the analysis period, 
using the projected number of sponsors for each year. Totals may not 
add due to rounding.
---------------------------------------------------------------------------

    Fourth, the Final Rule requires that all sponsors develop and 
implement procedures to ensure that their apprentices are not harassed 
because of their race, color, religion, national origin, sex, sexual 
orientation, age (40 or older), genetic information, or disability and 
to ensure that the workplace is free from harassment, intimidation, and 
retaliation (Sec.  30.3(b)(4)(iv)). As explained in the preamble, this 
requirement should not result in new burdens on sponsors who are 
already subject to Federal laws that prohibit harassment in the 
workplace. Because title VII, Executive Order 11246 as amended by 
Executive Order 13672, the ADEA, GINA, and the ADA prohibit these 
actions, and most sponsors are already subject to these laws. Because 
time has been calculated for compliance with the periodic orientation/
information sessions in 30.3(b)(2)(iii) of which the anti-harassment 
training is a part, the cost of this requirement has already been 
accounted for in this analysis. As mentioned in the preamble, the 
Department will also provide anti-harassment materials that can be used 
by sponsors.
d. Revised Methodology for Workforce and Utilization Analysis and Goal 
Setting
    The Final Rule streamlines the workforce and utilization analysis 
required of sponsors with five or more apprentices and clarifies when 
and how utilization goals are to be established for women and 
minorities (Sec. Sec.  30.5 through 30.7). Specifically, the Final Rule 
requires sponsors to consider two factors when determining the 
availability of individuals for apprenticeships rather than the five 
currently listed in the part 30 regulations: The percentage of 
individuals eligible for enrollment in apprenticeship programs within 
the sponsors relevant recruitment area and the percentage of the 
sponsor's employees eligible for enrollment in the apprenticeship 
program, both to be detailed by race, sex, and ethnicity. The Final 
Rule further reduces the frequency with which the workforce and 
utilization analyses must be conducted--from annually under the 
existing rule to at the time of the compliance review for the 
utilization analysis (every five years on average) and within three 
years of the compliance review for the workforce analysis (effectively 
every two and a half years on average). In addition, the Final Rule 
explains in clear terms the steps required to determine whether any 
particular groups of individuals are being underutilized and the 
Registration Agency will provide direction as to when and how goals are 
to be established. First, sponsors will conduct a workforce analysis to 
identify the racial, sex, and ethnic composition of their apprentices. 
Second, an availability analysis will establish a benchmark against 
which the existing composition of apprentices will be compared. 
Sponsors will establish utilization goals and engage in targeted 
outreach, recruitment, and retention efforts when the sponsor's 
utilization of women, Hispanics or Latinos, or individuals in racial 
minority groups are ``significantly less than would be reasonably 
expected given the availability of such individuals for 
apprenticeship.'' Registration Agencies will work closely with sponsors 
during compliance reviews to assist in the development of an 
availability analysis and setting or reassessing utilization goals for 
race, sex, and ethnicity. The Department will be further developing a 
data tool to assist in the collection and analysis of relevant 
demographic data for the purposes of goal setting. The Department has 
determined that there are three types of costs associated with this 
provision: Costs associated with the development of and familiarization 
with the data tool, costs associated with the workforce analysis, and 
costs associated with the utilization analysis.
    Although it is the Department's expectation that this activity will 
result in long-term efficiencies and burden reductions for both the 
Department and affected sponsors, it understands that there will be 
costs associated with both the development of the data tool and the 
time sponsors will need to familiarize themselves with the tool. To 
develop the tool, the Department estimates that it will use a GS-13 
Department employee at an hourly compensation rate of $64.71 for 60 
hours \126\ to advise a contractor to build the tool. Based on the 
Department's requirements for similar assignments, the cost of 
contracting for building the tool is estimated to be $55,000. The total 
one-time cost to the Department for building the tool is therefore 
estimated to be $58,883.
---------------------------------------------------------------------------

    \126\ The GS-13 salary is from the Office of Personnel 
Management's 2015 Salary Table. This wage is further multiplied by 
the Federal benefits multiplier of 1.63 for an hourly compensation 
rate of $64.71 ($39.70 x 1.63). The Federal multiplier of 1.63 is 
the result of a two-step estimate: The average ratio of total 
compensation to total wages in the private sector in 2015 (1.44) 
multiplied by the ratio of loaded wage factors for federal workers 
compared to private sector workers (1.13). Totals may not add due to 
rounding. See Bureau of Labor Statistics. (2016). 2015 Employer 
Costs for Employee Compensation. Retrieved from: http://www.bls.gov/schedule/archives/ecec_nr.htm; Congressional Budget Office. (2012). 
Comparing the compensation of federal and private-sector employees. 
Tables 2 and 4. Retrieved from: https://www.cbo.gov/sites/default/files/112th-congress-2011-2012/reports/01-30-FedPay_0.pdf.
---------------------------------------------------------------------------

    To quantify the cost associated with sponsor familiarization with 
the data tool, the Department assumed that the data tool is developed 
in 2017 and that the following year (2018) all sponsors (25,231) with 5 
or more apprentices (25 percent) will incur one hour of HR manager 
labor ($73.90 per hour) to familiarize the organization with the

[[Page 92091]]

tool. This is estimated to have a cost of $466,143 (25,231 x 25 percent 
x $73.90 x 1) in 2018. We repeated this calculation for the following 
years only for new sponsors to the program who will still need to 
acclimate themselves with the tool. This provision has an annualized 
cost of $98,197 (with 7 percent discounting) and $93,348 (with 3 
percent discounting).
    To calculate the cost of the new workforce analysis, the Department 
first determined the baseline (current) cost of the workforce 
requirements under existing regulations. The existing workforce 
analysis required 1 hour of HR manager labor ($73.90 per hour) for all 
sponsors (23,811 in 2017) with 5 or more apprentices (25 percent) 
annually.
    The Department then determined that the new methodology for 
conducting workforce analyses under the Final Rule--including the 
conducting of workforce analyses for individuals with disabilities--
would result in 2 hours of HR manager labor ($73.90 per hour) for all 
sponsors (25,231 in 2018) with 5 or more apprentices (25 percent). All 
sponsors with 5 or more apprentices must conduct their first new 
workforce analysis within two years of the Final Rule's effective date 
and every 2.5 years after that. The Department calculated that the new 
workforce analyses in 2018--the first year in which the new workforce 
analyses would be undertaken per the compliance date set forth in Sec.  
30.5(b)(3) for all sponsors with 5 or more apprentices--will cost 
$932,285 (2 hours x $73.90 x (25,231 x 25 percent)). In calculating 
costs for the year 2019 and afterward, the Department divided the 
number of applicable sponsors in each year by 2.5 to reflect the 
assumption that in 2019 and after sponsors will conduct the analysis 
per the 2.5-year timeline. This means that in any given year 40 percent 
of these sponsors will conduct the new workforce analysis or that it 
would take 2.5 years to have these sponsors conduct the new workforce 
analysis. We repeated this calculation for the following years using 
the appropriate number of sponsors in any given year, resulting in an 
annualized cost of $445,815 (with 7 percent discounting) and $449,806 
(with 3 percent discounting) for sponsors.
    To calculate the cost of the new utilization analysis, the 
Department determined that the utilization analysis will result in 0.5 
hour of HR manager time ($73.90 per hour) for all sponsors (26,606 in 
2019) with 5 or more apprentices (25 percent) every 5 years. There is 
no baseline cost for this portion of the analysis, as previously the 
Department was providing the analysis with minimal burden to sponsors. 
The cost of conducting the first utilization analyses in 2019--the 
first year that utilization analyses are likely to be conducted--is 
$49,155 (0.5 hour x $73.90 x (26,606 x 25 percent)/5 years). We 
repeated this calculation for the following years, and conducting 
utilization analyses has an annualized cost of $41,235 (with 7 percent 
discounting) and $43,348 (with 3 percent discounting) for sponsors.
Benefits
    Once the data tool is developed, the Department estimates it will 
reduce the time required for its GS-13 employee ($64.71 per hour) to 
conduct a utilization analysis from the existing 2 hours to 1 hour 
using the data tool jointly with sponsors. Furthermore, the frequency 
of conducting the utilization analysis is reduced from annually to once 
every 5 years. This will result in a cost saving to the Department of 
$774,753 in 2019 ((26,606 x 25 percent x (2 hour - (1 hour/5 years)) x 
$64.71) and an annualized cost saving ranging from $649,925 (with 7 
percent discounting) to $683,240 (with 3 percent discounting).
e. Requiring Targeted Outreach, Recruitment, and Retention for 
Underutilized Groups
    In addition to the normal outreach, recruitment, and retention 
activities required of all sponsors under Sec.  30.3(b), the Final Rule 
requires a sponsor of an apprenticeship program, whose utilization 
analyses revealed underutilization of a particular group or groups of 
individuals pursuant to Sec.  30.6 and/or who has determined pursuant 
to Sec.  30.7(e) that there are impediments to EEO for individuals with 
disabilities, to engage in targeted outreach, recruitment, and 
retention for all underutilized groups in Sec.  30.8. We assume that 
this additional outreach will happen in the same manner as the 
universal outreach discussed above.
    We further assume that this targeted outreach, recruitment, and 
retention is newly required for individuals with disabilities of all 
sponsors who employ five or more apprentices, who failed to meet the 7 
percent utilization goal, and whose existing recruitment efforts are 
not effective and need to be revised, since the Final Rule now requires 
that such sponsors engage in affirmative action of individuals with 
disabilities. The Department recognizes, however, that some sponsors 
may already be meeting the 7 percent utilization goal for persons with 
disabilities. Others may be employing them at less than 7 percent, but 
nevertheless do not need to engage in targeted outreach and recruitment 
because their review of their activities did not reveal any barriers to 
equal opportunity. Therefore, the analysis below may overestimate the 
number of sponsors that need to engage in targeted outreach and 
recruitment and consequently overestimate total costs of this 
provision.\127\
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    \127\ For this analysis, we assumed that the percent of all 
sponsors employing five or more apprentices (25 percent) remains 
constant throughout the 10-year analysis period. In reality, this 
percentage will fluctuate as sponsors take on new apprentices and as 
apprentices complete their programs. We also expect that, over time, 
successful outreach will lead to more hiring of persons with 
disabilities and that sponsors will meet their recruitment goals and 
not be required to complete this additional outreach.
---------------------------------------------------------------------------

    We assume that the cost to sponsors to distribute information about 
apprenticeship opportunities to organizations serving individuals with 
disabilities will be the labor cost. We also assume that the labor for 
this provision will be performed by a human resource manager and an 
administrative assistant with hourly compensation rates of $73.90 and 
$23.10, respectively. Lastly, we assume that this additional outreach 
will first occur two years after the Final Rule goes into effect. At 
the first compliance review--which for the first group of sponsors to 
conduct compliance reviews will occur approximately two years after the 
Final Rule's effective date--sponsors need to conduct a utilization 
analysis and an internal review to identify underutilization for women, 
minority groups, or individuals with disabilities. Sponsors who need to 
engage in targeted outreach and recruitment for the first time should 
continue to do so annually until the next compliance review.
    The Department estimated that this dissemination task will take 30 
minutes (0.5 hour) of a human resource manager's time and 30 minutes 
(0.5 hour) of an administrative assistant's time per targeted source. A 
sensitivity analysis for a range of time spent conducting targeted 
outreach to organizations that serve individuals with disabilities is 
presented further below. The cost of this provision per affected 
sponsor is the time each staff member devotes to this task multiplied 
by their associated hourly compensation rates. This calculation 
resulted in a labor cost of $48.50 (($73.90 x 0.5) + ($23.10 x 0.5)) 
per source. We then multiplied this total labor cost by the number of 
outreach sources (5),\128\ the

[[Page 92092]]

share of sponsors with five or more apprentices (25 percent), the share 
of sponsors that will undertake a utilization analysis in any given 
year (20 percent \129\) and the share of sponsors that will identify 
underutilization and/or problem areas in one or more of the relevant 
demographic groups--(95 percent \130\). This calculation ($48.50 x 
26,606 x 5 x 25 percent x 20 percent x 95 percent) results in a total 
cost of this provision of approximately $306,468 in 2019. The number of 
sponsors who will undertake a utilization analysis and identify 
underutilization and/or problem areas in 2019 is 1,264 (26,606 x 25 
percent x 20 percent x 95 percent). Because sponsors who need to engage 
in targeted outreach and recruitment for the first time must continue 
to do so annually until the next compliance review, the number of 
sponsors needing to engage in targeted outreach and recruitment in 2020 
will become 2,590, which is the sum of 1,264 and 1,326 (27,915 sponsors 
in 2020 x 25 percent x 20 percent x 95 percent). The number of sponsors 
who we estimate will need to engage in targeted outreach and 
recruitment will eventually reach 95 percent of the total sponsors with 
5 or more apprentices in 2023 and after.\131\
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    \128\ The Department believes that most sponsors will not have 
underutilization in all AAP protected bases (race, ethnicity, sex, 
and disability) requiring outreach under Sec.  30.8; however, this 
analysis assumes that sponsors will, on average, engage in outreach 
to five different organizations in order to comply with its 
obligations under 30.8(a). This assumption is, if anything, likely 
an overestimate, as some sponsors may be able to address the 
underlying issues with connections to fewer organizations, and some 
sponsors will not have the underutilization/impediments to EEO that 
would trigger the Sec.  30.8 outreach obligation in the first place.
    \129\ This is the percentage of sponsors who undergo compliance 
review each year, as determined by the 5-year schedule on which 
sponsors undergo compliance reviews.
    \130\ In the consultation with regional directors, the 
Department assumed that 95 percent of sponsors that conduct a 
utilization analysis will discover underutilization of a particular 
group or groups of individuals pursuant to Sec.  30.6 and/or 
problems with respect to its outreach, recruitment, and retention 
activities pursuant to Sec.  30.7(f).
    \131\ Should the 95 percent (share of sponsors that will 
identify underutilization and/or problem areas) fall over time, the 
cost estimate of this provision will likely be an overestimate.
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    We repeated this calculation for the following years using the 
appropriate number of sponsors in any given year. The annualized cost 
ranges from $936,998 (with 7 percent discounting) to $1.02 million 
(with 3 percent discounting).
f. Affirmative Action Program Reviews
    Affirmative action program reviews in the Final Rule result in 
three additional activities beyond the baseline: personnel process 
reviews, written affirmative action plan updates during compliance 
reviews, and written affirmative action plan updates within three years 
of compliance reviews (estimated to occur 2.5 years later in this 
analysis). The Final Rule requires sponsors with five or more 
apprentices to review personnel processes annually (Sec.  30.9). 
Requiring this scheduled review of personnel processes emphasizes the 
philosophy the Department intends to convey throughout the regulation 
that affirmative action is not a mere paperwork exercise but rather a 
dynamic part of the sponsor's management approach. Affirmative action 
requires ongoing monitoring, reporting, and revision to address 
barriers to EEO and to ensure that discrimination does not occur.
    As required by the 1978 Final Rule (the analysis baseline), 
sponsors with 5 or more apprentices in a registered apprenticeship 
program are required to develop and maintain an affirmative action 
program. The scope of each sponsor's program depends on the size and 
type of its program and resources. However, each sponsor is required, 
under the existing rule, to undertake a significant number of 
appropriate activities to satisfy its affirmative action obligations. 
The 1978 Final Rule lists examples of the kinds of activities expected, 
including ``periodic auditing of the sponsor's affirmative action 
programs and activities'' (29 CFR 30.4(c)(10)). We assume that, at the 
very least, these program sponsors currently conduct this audit on an 
annual basis because elsewhere in the 1978 Final Rule, sponsors are 
required to review their affirmative action programs annually and 
update them where necessary (29 CFR 30.8).
    To calculate the cost of these three activities, the Department 
first determined the cost of the baseline that is being replaced by the 
Final Rule (annual affirmative action program reviews). The Department 
calculated that all sponsors (25,231 in 2018) with 5 or more 
apprentices (25 percent) currently incur 8 hours of HR manager labor 
($73.90 per hour) to conduct the existing annual reviews. The cost of 
the baseline in 2017 is $3.73 million (25,231 x 25 percent x 8 hours x 
$73.90). This baseline is being replaced by less frequent affirmative 
action program reviews and an annual personnel process review for all 
sponsors (all of these provisions do not begin until the second year 
(2018) due to the two-year phase-in).
    To determine the cost of the new annual personnel process review, 
the Department calculated the cost for all sponsors in 2018 (25,231) 
with 5 or more apprentices (25 percent) to spend 8 hours of HR manager 
labor conducting the review. This provision will result in an 
undiscounted cost of $3.73 million in 2018 (25,231 x 25 percent x 8 
hours x $73.90).
    To determine the cost of the written affirmative action plan update 
at the time of the compliance review, the Department calculated the 
cost for all sponsors in 2018 (25,231) with 5 or more apprentices (25 
percent) to spend 12 hours \132\ of HR manager labor every 5 years at 
the time of the compliance review. With the existing compliance review 
rate at 20 percent, this means that approximately one in five of these 
sponsors will undergo a compliance review every year. This provision 
will result in an undiscounted cost of $1.12 million in 2018 (25,231 x 
25 percent x 12 hours x (\1/5\) x $73.90).
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    \132\ A workforce analysis (1); a utilization analysis (2); 
goal-setting (if necessary) (3); and a full update of the written 
affirmative action plan (4) need to be undertaken at the compliance 
review. Because we have already costed out (1), (2), and (3), the 
sponsor would need additional 12 hours to fully update the written 
affirmative action plan.
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    To determine the cost of the written affirmative action plan update 
within three years of the compliance review, the Department calculated 
the cost for all sponsors in 2018 (25,231) with 5 or more apprentices 
(25 percent) to spend 6 hours \133\ (estimated to be less because of 
the lesser workload from not overlapping with the compliance review) of 
HR manager time every 5 years. This provision results in an 
undiscounted cost of $559,371 in 2018 (25,231 x 25 percent x 6 hours x 
(\1/5\) x $73.90). We repeated this calculation for the following years 
using the appropriate number of sponsors in any given year.
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    \133\ A written affirmative action program review within three 
years of compliance reviews contains (1) workforce analysis and (2) 
updating the written affirmative action plan to include the updated 
workforce analysis and a description of the review of personnel 
practices and any changes made as a result of that review (see 
30.9(b)). Because we have already costed out (1), the 6 hours are 
for including updated the workforce analysis and a description of 
the review of personnel practices and any changes made as a result 
of that review (see 30.9(b)).
---------------------------------------------------------------------------

    The total cost of this provision is $1.68 million in 2018 ($559,371 
+ $1.12 million + $3.73 million - $3.73 million). The annualized cost 
ranges from $1.69 million to $1.75 million at 7 percent and 3 percent, 
respectively.
g. Simplified Procedures for Selecting Apprentices
    Under the 1978 Final Rule, selection of apprentices must be made 
using one of four specific selection methods. Under the Final Rule 
(Sec.  30.10), sponsors are required to adopt any method for the 
selection of apprentices provided that

[[Page 92093]]

the method (1) complies with Uniform Guidelines on Employee Selection 
Procedures (USGEP); (2) is uniformly and consistently applied to all 
applicants and apprentices; (3) complies with the qualification 
standards set forth in title I of the ADA; and (4) is facially neutral 
in terms of race, color, religion, national origin, sex, sexual 
orientation, age (40 or older), and disability. This approach greatly 
simplifies the regulatory structure currently governing selection 
procedures and affords sponsors greater flexibility in fashioning a 
selection procedure; it also aligns this provision of part 30 with how 
other equal opportunity laws regulate employers' use of selection 
procedures.
Benefits
    This provision, aimed at simplifying selection procedures, is 
expected to reduce sponsors' cost of compliance because we expect that 
sponsors will be able to more quickly and easily adopt a method for 
selection consistent with how they currently select applicants or 
employees under other EEO laws. Although this analysis did not quantify 
any benefits under this provision, it is expected that this will result 
in efficiencies for sponsors.
h. Standardizing Compliance Review Procedures for Registration Agencies
    The Final Rule standardizes procedures Registration Agencies must 
follow for conducting compliance reviews (Sec.  30.13). The provision 
on compliance reviews carries forward the existing provision at Sec.  
30.9 addressing compliance reviews and includes several modifications 
to improve readability. First, the Final Rule revises the title from 
``Compliance reviews'' to ``Equal employment opportunity compliance 
reviews'' to clarify that the reviews are to assess compliance with the 
part 30 regulations and not the companion regulations at part 29.
    Second, the term ``Registration Agency'' is used throughout Sec.  
30.13 instead of the term ``Department,'' because this section applies 
to both the Department and to SAAs when conducting an EEO compliance 
review.
    Third, the Final Rule provides more specificity for the procedures 
Registration Agencies must follow in conducting compliance reviews. 
This increased specificity provides for greater consistency and 
standardization of procedures across the National Registered 
Apprenticeship System. For instance, Sec.  30.13(b) requires the 
Registration Agency to notify a sponsor of any findings through a 
written Notice of Compliance Review Findings within 45 days of 
completing a compliance review. The Notice of Compliance Review 
Findings must include whether any deficiencies (i.e., failures to 
comply with the regulatory requirements) were found, how they are to be 
remedied, and the timeframe within which the deficiencies must be 
corrected. The Notice of Compliance Review Findings also must notify a 
sponsor that sanctions may be imposed for failing to correct the 
aforementioned deficiencies.
    These changes add clarity to the procedures but do not 
fundamentally change the process and, therefore, do not represent a 
significant additional burden to sponsors or SAAs. The Department 
believes the additional specificity will ease some of the burden on 
States.
    Sponsors are subject to onsite or offsite compliance reviews by 
either the SAA or OA where the corresponding agency is expected to 
notify the sponsor of the review findings. Although the notice of 
compliance reviews already occurs with SAAs and OA, the Final Rule 
makes the practice standard and common among all entities. Under the 
Final Rule, the notice of review findings is required to be sent via 
registered or certified mail, with return receipt requested within 45 
days of the completed equal opportunity compliance review.
    The costs associated with this provision are limited to the use of 
registered mail, the materials, and the labor to send the letter. The 
actual review process remains unchanged from the 1978 Final Rule. To 
determine the cost of the notice of compliance reviews, we estimated 
the labor cost to mail and compile the notice (assumed to be completed 
by an administrative assistant) and the cost of materials to send the 
notice. The labor cost is comprised of the time an administrative 
assistant dedicates to the task (15 minutes, or 0.25 hour) multiplied 
by the hourly compensation rate ($29.55 for SAAs and $30.68 for 
OA).\134\ The total materials cost is the cost to send a letter via 
registered mail ($12.20) plus the cost of the envelope ($0.07) plus the 
cost to photocopy the one-page document ($0.08), or $12.35 ($12.20 + 
$0.07 + $0.08).
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    \134\ We calculated the hourly compensation rate for an 
administrative assistant by multiplying the hourly wage of $18.82 
(GS-7 step 5) by 1.57 for the State agency and 1.63 for the Federal 
agency to account for public-sector employee benefits. Thus, the 
hourly compensation rate for an administrative assistant at a State 
agency is $29.55 ($18.82 x 1.57) and $30.68 ($18.82 x 1.63) at a 
Federal agency.
---------------------------------------------------------------------------

    To estimate the total cost of this provision in the first year, we 
summed labor and material costs and then multiplied by the total number 
of reviewed sponsors resulting in $46,997 for SAAs and $47,670 for 
OA.\135\ We then repeated this calculation for each year of the 
analysis period using the projected number of sponsors for each year. 
The annualized cost to SAAs ranges from $56,499 (with 7 percent 
discounting) to $57,163 (with 3 percent discounting) and the annualized 
cost to OA ranges from $57,308 (with 7 percent discounting) to $57,981 
(with 3 percent discounting).
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    \135\ To calculate the labor cost, we multiplied the time 
required by the hourly compensation rate, resulting in a cost of 
$7.38 (0.25 x $29.55) for State Apprenticeship Agencies and $7.67 
(0.25 x $30.68) for OA. We then multiplied each labor cost by the 
percentage of sponsors subject to compliance reviews (20 percent) 
and by 50 percent (we assumed that half of the sponsors respond to 
SAAs and the rest respond to OA).
---------------------------------------------------------------------------

i. Clarifying Complaint Procedures
    In an effort to ensure consistency with how Registration Agencies 
process complaints and conduct investigations, Sec.  30.14(c) adds 
uniform procedures that Registration Agencies must follow. These 
uniform procedures ensure that Registration Agencies acknowledge and 
thoroughly investigate complaints in a timely manner, that parties are 
notified of the Registration Agency's findings, and that the 
Registration Agency attempts to quickly resolve violations. Since the 
complaint process is not a new process, the Department does not expect 
that these provisions will add significantly to the burden on 
Registration Agencies; they simply standardize the procedures and 
define a timeline. Therefore, while the Department does not expect 
significant changes in burden, there may still be negligible one-time 
costs as Registration Agencies adjust their complaint procedures to 
reflect newly standardized requirements. These procedures will benefit 
both sponsors and apprentice complainants since claims will be handled 
in a clear and consistent fashion.
j. Adopting Uniform Procedures Under 29 CFR Parts 29 and 30 for 
Deregistration, Derecognition, and Hearings
    The Final Rule generally aligns part 30 with part 29 procedures for 
deregistration of apprenticeship programs, derecognition of SAAs, and 
hearings (Sec. Sec.  30.15 through 30.16). For consistency and 
simplicity, Sec.  30.15(c) adopts the deregistration procedures of 
Sec.  29.8(b)(5) through (8) of this title, including the hearing 
procedures in Sec.  29.10. This revision a more closely aligned set of 
procedures for matters arising from management of the

[[Page 92094]]

National Registered Apprenticeship System. These provisions are not 
expected to impose a burden because SAAs are already following these 
procedures in part 29.
k. Invitation To Self-Identify as an Individual With a Disability
    The Final Rule under Sec.  30.11 requires sponsors with 5 or more 
apprentices to invite applicants for apprenticeship to voluntarily 
self-identify as an individual with a disability protected by this part 
at two stages: (1) At the time they apply or are considered for 
apprenticeship; and (2) after they are accepted into the apprenticeship 
program but before they begin their apprenticeship. Within the first 
two years of the program, existing sponsors will be required to survey 
their current apprentices.
    The purpose of this section is to collect important data pertaining 
to the participation of individuals with disabilities in the sponsor's 
applicant pools and apprenticeship program. This data will allow the 
sponsor and the Department to better identify and monitor the sponsor's 
enrollment and selection practices with respect to individuals with 
disabilities and also enable the Department and the sponsor to assess 
the effectiveness of the sponsor's recruitment efforts over time, and 
to refine and improve the sponsor's recruitment strategies, where 
necessary. In addition, data related to apprentices once they are in 
the program will help sponsors assess whether there may be barriers to 
equal opportunity in all aspects of apprenticeship and may improve the 
effectiveness of retention strategies or help sponsors evaluate whether 
such strategies are necessary.
    Within the first two years of this program, sponsors with 5 or more 
apprentices will need to survey their current workforce with the 
invitation to self-identify. The Department assumed that sponsors would 
survey their current workforce for the first time in 2018 and 
calculated that sponsors (33,939 in 2018) with 5 or more apprentices 
(25 percent) will survey an average of 41 apprentices with an 
invitation to self-identify provided by the Department.\136\ The 
Department estimated that it would take an apprentice ($18.72 per hour) 
5 minutes (0.08 hours) to complete the form. Furthermore, an 
administrative assistant ($23.10 per hour) would need to spend 0.5 hour 
annually to record and keep the forms. This provision has a cost in 
2018 of $458,811 ((25,231 x 25 percent x 41 x 0.08 hour x $18.72) + 
(25,231 x 25 percent x 0.5 hour x $23.10)).
---------------------------------------------------------------------------

    \136\ The average number of apprentices at sponsors with 5 or 
more apprentices using 2015 RAPIDS data was 33 in 2015 Over the 10-
year analysis period, the Department assumed that the average number 
of apprentices for sponsors with 5 or more apprentices would grow at 
the same rates that were estimated for all sponsors. The Department 
estimated that there are on average 38 apprentices per sponsor with 
5 or more apprentices in 2017; 41 in 2018; 42 in 2019; 44 in 2020; 
46 in 2021; 49 in 2022; 50 in 2023; 50 in 2024; 52 in 2025; and 53 
in 2026.
---------------------------------------------------------------------------

    In subsequent years, all sponsors with 5 or more apprentices will 
be required to administer the invitation to self-identify twice: Once 
to all applicants prior to the offer of apprenticeship, and once after 
the offer of apprenticeship to those who have been extended offers. The 
Department estimates that sponsors post 42 positions in 2019 and 
receive 15 applicants per posting.\137\ Of those positions, the 
Department estimated that 42 offers of enrollment are made and 42 
apprentices choose to enroll in 2019. This requirement has an 
undiscounted cost in 2019 of $6.84 million (26,606 x 25 percent x ((15 
applications x 42 job listings x .08) + (42 offers of apprenticeship x 
.08)) x $18.72 + 26,606 x 25 percent x 0.5 x $23.10). For the 10-year 
analysis period, this provision has an annualized cost of $6.54 million 
and $6.91 million (at 7 percent and 3 percent discounting, 
respectively).\138\ In addition, sponsors with 5 or more apprentices 
are required to remind apprentices yearly that they can update their 
invitation to self-identify. The Department assumed that these sponsors 
would send out an annual reminder email beginning in 2018 at the cost 
of $12,292 (25,231 x 0.25 percent x 0.08 hour x $23.10). We repeated 
this calculation for each remaining year in the analysis period using 
the estimated number of sponsors for each year. This provision in total 
has an annualized cost of $4.53 million and $4.76 million (at 7 percent 
and 3 percent discounting, respectively).
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    \137\ The Department determined the number of positions posted 
from conversations with programs of various sizes. We determined 
that that the largest, statewide programs post more than 15 jobs, 
but the Department used this as an average for all apprentices to 
avoid under-estimating the costs.
    \138\ It is assumed that there will be 100 percent participation 
in the invitation to self-identify and therefore, the cost of this 
provision is likely overestimated.
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l. Other
    The Final Rule will result in three additional costs. First, SAAs 
will be required to revise their State equal opportunity plan to 
conform to the new requirements. Second, the Final Rule will create an 
intermediary step between a registered sponsor and a deregistered 
sponsor (registration suspension). Third, sponsors will likely hire or 
retain more qualified apprentices with disabilities under the Final 
Rule and this may result in additional costs of providing appropriate 
job accommodations.
Revision of State Equal Opportunity Plan
    The process of updating a State equal opportunity plan may 
potentially involve various different people at different stages of 
implementation. Updating the plan will include drafting the new plan 
and completing all administrative procedures that may apply, such as 
revisions to a State's apprenticeship law or policy that may require a 
public notice and comment period, training for SAA staff on the revised 
State EEO Plan, and outreach to program sponsors to inform them of the 
relevant aspects of the revised State EEO plan once it has been 
approved by the Department. The updates to State equal opportunity 
plans include changing language and existing requirements such that 
they align with the regulatory changes herein. To calculate the costs, 
the Department assumed that the process to revise the State equal 
opportunity plan will take a full year of effort (2,080 hours) to 
complete.\139\ This is the Department's best estimate for updating the 
existing State equal opportunity plan. For simplicity, we assumed that 
an SAA human resource manager will complete the task at an hourly 
compensation rate of $62.33.\140\ This amounts to a one-time cost of 
$3.24 million in the first year (2,080 hours x $62.33 x 25).\141\
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    \139\ Note that this calculation is only the administrative 
costs of updating the State equal opportunity plan, as opposed to 
the costs of implementing the new plan, or any new burdens on State 
Agencies. Since the updated State equal opportunity plan should 
reflect the Federal regulations, these costs should be accounted for 
and addressed elsewhere in the analysis under discussions of costs.
    \140\ We calculated the hourly compensation rate for a human 
resource manager at a State agency by multiplying the hourly wage of 
$39.70 (GS-13 step 5) by 1.57 for the State agency. The hourly 
compensation rate for a human resource manager at a State agency is 
thus $62.33 ($39.70 x 1.57).
    \141\ The estimated time to complete the revisions is 12 months 
(2,080 hours). The 2017 calculation used the hourly compensation 
rate for a state human resource manager ($62.33) multiplied by 2,080 
(the assumed number of work hours in a year) and by the total number 
of State Apprenticeship Agencies (25) to obtain a total cost of 
$3.24 million (2,080 x $62.33 x 25). This cost only accrues in the 
first year of the ten-year analysis period.
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Intermediate Step Between a Registered Sponsor and a Deregistered 
Sponsor
    The Final Rule creates an intermediary step regarding suspending 
new apprentices before deregistration proceedings are instituted (Sec.  
30.15(b)). Currently, deregistration of an

[[Page 92095]]

apprenticeship program occurs when the sponsors fails to demonstrate 
compliance with the 1978 Final Rule. The new suspension step allows 
sponsors an adequate span of time to update their practices and be in 
compliance without having to be deregistered and then reregistered at a 
later date. Under this procedure, a Registration Agency may suspend a 
registration of new apprentices until the sponsor has achieved 
compliance with part 30 through the completion of a voluntary 
compliance action plan or until deregistration proceedings are 
initiated by the Registration Agency.
    The intermediary step represents a benefit because it allows 
sponsors to comply without having to be deregistered and then 
reregister or abandon their program. The benefits of this provision are 
difficult to quantify because some programs eligible for deregistration 
may seek deregistration voluntarily.
Workplace Accommodations for Apprentices With Disabilities
    The Final Rule prohibits discrimination against individuals with 
disabilities and requires sponsors to take affirmative action to 
provide equal opportunity in apprenticeship to qualified individuals 
with disabilities. With respect to the sponsor's duty to ensure non-
discrimination based on disability, the sponsor must provide necessary 
reasonable accommodations to ensure applicants and apprentices with 
disabilities receive equal opportunity in apprenticeship. Since most, 
if not all, sponsors already are subject to the ADA as amended, and if 
a Federal contractor to section 503 of the Rehabilitation Act, sponsors 
already have a duty under existing law to provide reasonable 
accommodations for qualified individuals with disabilities, and thus 
there is no new burden associated with any duty to provide reasonable 
accommodation under part 30, as that duty already exists under Federal 
law. For any sponsor that may not already be required under the law to 
provide such accommodations (e.g., any sponsor with fewer than 15 
employees would not be covered by the ADA), we expect the resulting 
burden to be small. A recent study conducted by the Job Accommodation 
Network (JAN), a service of the Department's Office of Disability 
Employment Policy (ODEP), shows that the majority of employers in the 
study (57 percent) reported no additional accommodation costs and the 
rest (43 percent) reported one-time costs of $500 on average.\142\ This 
study shows that the benefits to employers, such as improving 
productivity and morale, retaining valuable employees, and improving 
workplace diversity, outweigh the low cost.
---------------------------------------------------------------------------

    \142\ Beth Loy, ``Accommodation and Compliance Series Workplace 
Accommodations: Low Cost, High Impact,'' Job Accommodation Network 
(2014), http://askjan.org/media/lowcosthighimpact.html.
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4. Summary of Cost-Benefit Analysis
    Exhibit 3 presents a summary of the first-year costs of the Final 
Rule, as described above. As shown in the exhibit, the total first-year 
cost of the Final Rule is $42.88 million. The Department was able to 
only quantify benefits (i.e., cost-savings) of the Final Rule resulting 
from the benefit from more efficient utilization analysis and goal 
setting by the Department. The Department estimated that this time 
saving yield $4.56 or $5.83 million in benefits over the 10-year period 
(with 7 percent and 3 percent discounting, respectively).

[[Page 92096]]

[GRAPHIC] [TIFF OMITTED] TR19DE16.000

    Exhibit 4 presents a summary of the monetized costs and benefits 
associated with the Final Rule over the 10-year analysis period. The 
monetized costs and benefits displayed are the yearly summations of the 
calculations described above. Costs and benefits are presented as 
undiscounted 10-year totals, and as present values with 7 and 3 percent 
discount rates.
[GRAPHIC] [TIFF OMITTED] TR19DE16.001


[[Page 92097]]


    Primary estimates of the 10-year monetized costs of the Final Rule 
are $370.27 million and $458.90 million (with 7 and 3 percent 
discounting, respectively). The 10-year monetized benefits of the Final 
Rule are estimated at $4.56 million or $5.83 million (with 7 and 3 
percent discounting, respectively).\143\
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    \143\ The Department believes that the overhead costs associated 
with the Final Rule are small because the additional activities 
required by the Final Rule will be performed by existing employees 
whose overhead costs are already covered. The Department 
acknowledges that it is possible that additional overhead costs 
might be incurred, however, and has conducted a sensitivity analysis 
by calculating the impact of more significant overhead costs (an 
overhead rate of 17 percent). This rate, used by the U.S. 
Environmental Protection Agency (EPA) in its final rules (see, for 
example, EPA Electronic Reporting under the Toxic Substances Control 
Act Final Rule, Supporting and Related Material), is based on a 
Chemical Manufacturers Association study. An overhead rate from 
chemical manufacturing might not be appropriate for all industries, 
so there may be substantial uncertainty concerning the estimates 
based on this illustrative example. Over the 10-year period, using 
an overhead rate of 17 percent would increase the total cost of the 
Final Rule from $370.27 million to $433.11 million and from $458.90 
million to $536.79 million (with 7 and 3 percent discounting, 
respectively). For the reasons stated above, the Department believes 
this estimate overestimates the additional costs arising from 
overhead costs while recognizing that there is not one uniform 
approach to estimating the marginal cost of labor.
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    Due to data limitations, the Department did not quantify several 
important benefits to society provided by the Final Rule. The Final 
Rule is expected to result in several overarching benefits to 
apprenticeship programs and specific benefits resulting from a clearer, 
more systematic rule. As discussed above, equal opportunity policies 
may lead to both efficiency gains and distributional impacts for 
society. The Final Rule may reduce barriers to entry in apprenticeship 
programs for women, minorities, and individuals with disabilities, 
fostering a distributional effect, and may alleviate the inefficiencies 
in the job market these barriers create. It may also benefit 
businesses, as discussed above.
    The Final Rule focuses on making the existing EEO policy consistent 
and standard across the National Registered Apprenticeship System. In 
doing so, several tasks already undertaken by sponsors, apprentices, 
and Registration Agencies have been simplified. For instance, the 
clarified complaint process better informs apprentices, sponsors, and 
Registration Agencies of their roles and expectations. The Final Rule 
also develops a simpler methodology for the apprentice selection 
process and offers sponsors the flexibility to choose a mechanism that 
aligns with their State's specific equal opportunity regulations. Much 
of the new language provides consistency with existing equal 
opportunity laws and part 29 already applicable to these affected 
entities. Finally, the Final Rule streamlines procedures already in 
place under the 1978 Final Rule.
5. Regulatory Alternatives
    In addition to the Final Rule, the Department has considered four 
regulatory alternatives: (a) Take no action, that is, to leave the 1978 
Final Rule intact; (b) increase the Department's enforcement efforts of 
the 1978 Final Rule; (c) apply the same affirmative action requirements 
set forth in this rule to all sponsors, regardless of size; and (d) 
rely on individuals participating in the National Registered 
Apprenticeship System to identify and report to Registration Agencies 
potential cases of discrimination based on race, color, religion, 
national origin, sex, sexual orientation, age (40 or older), genetic 
information, and disability.
    The Department conducted economic analyses of the four alternatives 
to better understand their costs and benefits and the implied tradeoffs 
(in terms of the costs and benefits that would be realized) relative to 
the Final Rule. Below is a discussion of each alternative along with an 
estimation of their costs and benefits. All costs and benefits use the 
1978 Final Rule as the baseline for the analysis. Finally, we summarize 
the total costs and benefits of each alternative.
a. Take No Action
    This alternative yields no additional costs to society because it 
does not deviate from the baseline, that is, the 1978 Final Rule. This 
alternative, however, also yields no additional benefits in terms of 
ensuring equal opportunities for women, minorities, individuals with 
disabilities, LGBT individuals, and those ages 40 or older.
b. Increase Enforcement of Original Regulation
    This alternative maintains the original 1978 Final Rule but 
increases the monitoring of apprenticeship programs. This alternative 
increases the burden on the SAAs and the Department to enforce the 
equal opportunity standards. To determine the cost of this alternative, 
we assumed that the frequency of compliance reviews will increase by 50 
percent, implying that sponsors would be evaluated by the Registration 
Agency (the Department or SAAs) on a more frequent basis. With the 
existing compliance review rate at 20 percent--meaning that 
approximately one in five sponsors undergoes a compliance review every 
year--a 50 percent increase would constitute an extra 10 percent of 
sponsors (20 percent x 0.5) undergoing compliance reviews each year for 
a total of 30 percent of sponsors (20 percent + 10 percent) undergoing 
annual compliance reviews.
    To calculate the cost of this alternative, the Department assumed 
that each compliance review takes 40 hours to complete. This estimate 
includes time for preparation, conducting the review, writing up the 
findings and guidance to sponsors, reviewing and approving the final 
documents to be provided to sponsors, and providing technical 
assistance, where appropriate. We multiplied the 40 hours needed to 
complete a review by the increase in the annual number of reviews by 10 
percent (2,381 = 23,811 x 10 percent in 2017) by the hourly 
compensation rate of an SAA human resource manager ($62.33) and by the 
hourly compensation rate of an OA human resource manager ($64.71).\144\ 
We also multiplied this number by 50 percent, assuming that half of the 
sponsors report to a SAA and half report to OA. The cost of increased 
compliance reviews in the first year is $2.97 million for SAAs (23,811 
x 50 percent x $62.33 x 40 x 10 percent) and $3.08 million for OA 
(23,811 x 50 percent x $64.71 x 40 x 10 percent). The annualized costs 
range from $3.57 million to $3.61 million for SAAs (with 7 and 3 
percent discounting, respectively) and from $3.70 million to $3.75 
million for OA (with 7 and 3 percent discounting, respectively). The 
10-year costs for this alternative range from $51.08 million to $62.77 
million (with 7 and 3 percent discounting, respectively).
---------------------------------------------------------------------------

    \144\ We calculated the hourly compensation rate for a human 
resource manager at OA by multiplying the hourly wage of $39.70 (GS-
13 step 5) by 1.63 to account for public-sector employee benefits. 
The hourly compensation rate for a human resource manager at a 
Federal agency is thus $64.71 ($39.70 x 1.63).
---------------------------------------------------------------------------

    Exhibit 5 presents a summary of the monetized costs of this 
alternative option over the 10-year analysis period. Costs are 
presented as undiscounted 10-year totals, and as present values, using 
7 percent and 3 percent discount rates.

[[Page 92098]]

[GRAPHIC] [TIFF OMITTED] TR19DE16.002

    Increasing monitoring and evaluation of current efforts will 
increase administrative costs to the Department and may improve 
compliance to the existing requirements, but it would not modernize the 
rule to be consistent with current law affecting workers with 
disabilities and older workers. Therefore this would not be a preferred 
option, as it excludes a major area of focus for the Department: 
Improving access to good jobs for individuals with disabilities, such 
as those offered by Registered Apprenticeship opportunities.
c. Apply the Same Affirmative Action Policy to All Sponsors Regardless 
of Size
    The 1978 Final Rule and the Final Rule require that all sponsors 
with five or more apprentices maintain and update their AAPs. This 
alternative would apply the same AAP to all sponsors regardless of 
size. The Department believes that the incremental benefit of this 
action would be minimal compared to its incremental cost. This policy 
directly impacts the segment of the population that both qualifies as a 
small entity and also has few apprentices. Sponsors of small 
apprenticeship programs often have very few employees. Such sponsors 
would likely be overly burdened by the targeted outreach, recruitment, 
and retention requirements in Sec.  30.8. For example, they might not 
have the staff and resource capacity to adequately conduct outreach to 
multiple organizations.
    We believe that the original 1978 Final Rule restriction of 
requiring only those sponsors with five or more apprentices to develop, 
maintain, and update their AAPs is an appropriate way to not 
disproportionately burden small entities.
    To calculate the cost and benefits of this alternative, the 
Department completed the same calculations conducted for the Final Rule 
but increased the number of sponsors who have to establish an AAP. This 
new calculation assumed that all sponsors must determine utilization 
rates and underutilization and participate in targeted outreach and 
recruitment.
    To calculate the costs associated with this alternative, we first 
calculated the cost for all sponsors to complete the utilization 
analysis. As discussed above, we assumed this process takes 0.5 hour of 
a human resource manager's time at an hourly compensation rate of 
$73.39. We then divided the number of sponsors by 5 years to reflect 
that new utilization analyses occur approximately every five years. The 
resulting cost in 2019 is $196,618 ((0.5 x $73.90 x 26,606)/5). We 
repeated this calculation for each remaining year in the analysis 
period using the estimated number of sponsors for each year, resulting 
in an annualized cost ranging from $164,939 (with 7 percent 
discounting) to $173,394 (with 3 percent discounting).
    To quantify the cost associated with sponsor familiarization with 
the data tool for the utilization analysis, the Department assumed that 
all sponsors (25,231 in 2018) will incur one hour of HR manager labor 
($73.90 per hour) to familiarize the organization with the tool. This 
is estimated to have a cost of $1.86 million in 2018 (25,231 x $73.90 x 
1). We repeated this calculation for the following years only for new 
sponsors to the program who will still need to acclimate themselves 
with the tool. This provision has an annualized cost of $392,786 (with 
7 percent discounting) and $373,391 (with 3 percent discounting).
    Once the data tool is developed, the Department estimates it will 
take one hour for a GS-13 employee ($64.71 per hour) to conduct a 
utilization analysis for sponsors with fewer than 5 apprentices. This 
will result in a cost to the Department of $258,251 in 2019 (26,606 x 
75 percent x 1 hour x $64.71/5) and an annualized cost ranging from 
$216,642 (with 7 percent discounting) to $178,378 (with 3 percent 
discounting).
    The Department next calculated the costs for all sponsors to 
conduct a workforce analysis. All sponsors with five or more 
apprentices must conduct the first new workforce analysis within two 
years of the Final Rule's effective date and every 2.5 years after 
that. For these sponsors, this process is expected to take 2 hours of 
an HR manager's time ($73.90 per hour) in 2018 compared to a baseline 
of 1 hour of an HR manager's time. We multiplied this 1 hour by an HR 
manager's wage and by 25 percent of active sponsors, resulting in a 
cost of $466,143 ((25,231 x 25 percent x 1 hour x $73.90). For sponsors 
with fewer than five apprentices, this process is expected take 2 hours 
of an HR manager's time ($73.90 per hour) and they are currently not 
required to conduct a workforce analysis. We multiplied $73.90 by 75 
percent of active sponsors and 2 hours for sponsors with fewer than 5 
apprentices. The

[[Page 92099]]

resulting cost in 2018 is $2.80 million ((25,231 x 75 percent x 2 hours 
x $73.90) and the total cost for all sponsors in 2018 is $3.26 million 
($466,143 + $2.80 million).
    In subsequent years after 2018, for sponsors with five or more 
apprentices, this process is expected to take 2 hours of an HR 
manager's time ($73.90 per hour) every 2.5 years compared to a baseline 
of 1 hour of an HR manager's time annually, for a net saving of 0.2 
hour per year. We multiplied this 0.2 hour by an HR manager's wage and 
by 25 percent of active sponsors, resulting in cost savings in 2019--
the first year in which new workforce analyses will be conducted--of 
$98,309 ((26,606 x 25 percent x 0.2 hour x $73.90). For sponsors with 
fewer than five apprentices, this process is expected take 2 hours of 
an HR manager's time ($73.90 per hour) every 2.5 years and they are 
currently not required to conduct a workforce analysis. We multiplied 
$73.90 by 75 percent of active sponsors and 2 hours, dividing by 2.5 
years to reflect that the new workforce analyses occur approximately 
every two and a half years. The resulting cost in 2019 is $1.18 million 
((26,606 x 75 percent x 2 hours x $73.90)/2.5).
    The cost for all sponsors to conduct a workforce analysis in 2019 
is $1.08 million ($1.18 million less $98,309). This calculation was 
repeated in subsequent years, resulting in an annualized cost ranging 
from $1.31 million to $1.32 million with 7 percent and 3 percent 
discounting, respectively.
    We next calculated the costs of expanding the requirements for all 
apprenticeship sponsors to conduct targeted outreach. The cost of 
targeted outreach and recruitment mirrors the cost above except that we 
no longer scale it by the 25 percent of sponsors. We again assumed that 
each sponsor contacts five organizations; that a human resource manager 
would take 30 minutes (0.5 hour) to complete this task at an hourly 
compensation rate of $73.90; and that an administrative assistant would 
spend 30 minutes (0.5 hours) at an hourly compensation rate of $23.10.
    The cost of this provision per affected sponsor is the time each 
staff member devotes to this task multiplied by their associated hourly 
compensation rates. This calculation resulted in a labor cost of $48.50 
(($73.90 x 0.5) + ($23.10 x 0.5)) per source. We then multiplied this 
labor cost by the number of outreach sources (5); the number of 
sponsors (26,606 in 2019); 95 percent for sponsors whose utilization 
analyses revealed underutilization; and 20 percent for sponsors who 
undergo compliance review each year. This calculation results in a 
total cost of $1.23 million in 2019 ($48.50 x 5 x 26,606 x 95 percent x 
20 percent). We repeated this calculation for each remaining year in 
the analysis period using the estimated number of sponsors for each 
year, resulting in an annualized cost ranging from $3.75 million to 
$4.07 million with 7 percent and 3 percent discounting, respectively.
    Within the first two years of this program, all sponsors will need 
to survey their current workforce with the invitation to self-identify. 
The Department calculated that sponsors (25,231 in 2018) will survey an 
average of 26 apprentices with an invitation to self-identify provided 
by the Department. The Department estimated that it would take an 
apprentice ($18.72 per hour) 5 minutes (0.08 hours) to complete the 
form. Furthermore, an administrative assistant ($23.10 per hour) would 
need to spend 0.5 hour annually to record and keep the forms. This 
provision has a cost of $1.27 million in 2018 ((25,231 x 26 x 0.08 hour 
x $18.72) + (25,231 x 0.5 hour x $23.10)).
    In subsequent years, all sponsors will be required to administer 
the invitation to self-identify twice: once to all applicants prior to 
the offer of apprenticeship, and once after the offer of apprenticeship 
to those who have been extended offers. The Department estimates that 
sponsors post 27 positions per year and receive 15 applicants per 
posting in 2019. Of those positions, the Department estimated that 27 
offers of enrollment are made and 27 apprentices choose to enroll. This 
requirement has an undiscounted second year (2019) cost of $17.47 
million (26,606 x ((15 applications x 27 job listings x .08) + (27 
offers of apprenticeship x .08)) x $18.72 + 26,606 x 0.5 x $23.10). For 
the 10-year analysis period, this provision has an annualized cost of 
$16.76 million and $17.71 million (at 7 percent and 3 percent 
discounting, respectively).\145\ In addition, all sponsors are required 
to remind apprentices yearly that they can update their invitation to 
self-identify. The Department assumed that sponsors would send out an 
annual reminder email beginning in 2018 at the cost of $49,168 (25,231 
x 0.08 hour x $23.10). We repeated this calculation for each remaining 
year in the analysis period using the estimated number of sponsors for 
each year. This provision in total has an annualized cost of $16.80 
million and $17.75 million (at 7 percent and 3 percent discounting, 
respectively).
---------------------------------------------------------------------------

    \145\ It is assumed that there will be 100 percent participation 
in the invitation to self-identify and therefore, the cost of this 
provision is likely overestimated.
---------------------------------------------------------------------------

    Lastly, we calculated the cost of affirmative action plan reviews 
for all sponsors. Assuming a two-year phase-in and the same time 
requirements for each element of the review, we estimate that, in 2018, 
the personnel process review will cost $14.92 million (25,231 x 8 hours 
x $73.90), the written affirmative action program review at the time of 
the compliance review will cost $4.47 million ((25,231 x 12 hours x 
$73.90)/5 years between reviews), and the written affirmative action 
program review conducted within three years of the compliance review 
will cost $2.24 million ((25,231 x 6 hours x $73.90)/5 years between 
reviews) for a total cost of $21.63 million. We repeated this 
calculation for each remaining year in the analysis period using the 
estimated number of sponsors for each year, resulting in an annualized 
cost ranging from $21.82 million to $22.50 million with 7 percent and 3 
percent discounting, respectively.
    The remaining costs for this alternative are the same as for the 
Final Rule. The total 10-year costs of this alternative range from 
$589.29 million to $736.27 million (with 7 percent and 3 percent 
discounting, respectively).
d. Rely on Individuals Participating in the National Registered 
Apprenticeship System To Identify and Report Potential Cases of 
Discrimination
    Under this alternative, individuals participating in the National 
Registered Apprenticeship System would be responsible for identifying 
and reporting potential cases of discrimination to Registration 
Agencies, in contrast to both the existing and the Final Rule's part 30 
regulatory structures, which require Registration Agencies to monitor 
and enforce the EEO and affirmative action obligations via regular 
compliance reviews. This alternative reduces the burden on sponsors by 
relying on a complaint-based system.
    Under this alternative, apprentices' rights for non-discrimination 
would still be protected, but Registration Agencies would have a more 
passive role in how they monitor and evaluate program sponsors' 
compliance with the regulations. OA and SAAs would still conduct 
compliance reviews (in Sec.  30.11 and existing Sec.  30.9) but not as 
frequently.
    Under this alternative, to identify when discrimination may be 
occurring and whether sponsors are violating the non-discrimination and 
affirmative action requirements in the part 30 regulations, the 
Registration Agencies

[[Page 92100]]

would primarily rely on: (1) The complaints filed under Sec.  30.12 and 
existing Sec.  30.11 and self-evaluations from sponsors, and (2) a 
process where sponsors conduct a self-evaluation and report back to the 
Registration Agency. The Department believes that this approach to 
regulating discrimination and non-compliance with the part 30 
regulations would not adequately prevent discrimination and promote 
equal opportunity in apprenticeship programs.
    Registration Agencies under this alternative would provide sponsors 
with a format and process to conduct a self-evaluation relative to 
their compliance with these EEO regulations. Sponsors would then submit 
their self-evaluation to the Registration Agency for review and 
analysis. If the Registration Agency is satisfied with the findings 
from the self-evaluation, the sponsor would be informed accordingly, 
and no additional actions would be necessary at that time. If the 
Registration Agency's review of sponsor's self-evaluation identifies 
deficiencies, then the Registration Agency would conduct an on-site 
review and provide technical assistance as appropriate.
    These complaints and self-evaluations would serve as a ``trigger'' 
for Registration Agencies to adopt a more active role of visiting 
program sites to conduct compliance reviews and provide technical 
assistance, as appropriate.
    The Department assumes that the SAA and OA would reduce the number 
of compliance reviews by 20 percent. To calculate this cost savings, we 
multiplied the total number of sponsors (23,811 in 2017) by the 
percentage decrease in reviews. This results in 952 fewer reviews in 
the first year (23,811 x 20 percent x 20 percent). We then multiplied 
the total number of reviews by 50 percent assuming that the SAAs handle 
half the reviews and OA handles the remaining half. Finally, we 
multiplied the total reduction in reviews for each agency (476 = 0.5 x 
952) by the hours needed to complete each review (40 hours) and by the 
human resource managers' wages ($62.33 and $64.71 per hour for the SAAs 
and OA respectively). The resulting cost savings in the first year is 
$1.19 million (476 x $62.33 x 40) for SAAs and $1.23 million (476 x 
$64.71 x 40) for OA. We repeated this calculation for each year using 
the projected number of sponsors in each year. This results in an 
annualized savings for the SAAs of $1.42 million (with 7 percent 
discounting) to $1.44 million (with 3 percent discounting) and $1.48 
million (with 7 percent discounting) to $1.50 million (with 3 percent 
discounting) for OA.
    To estimate the cost of completing the self-evaluations, the 
Department assumes that each sponsor completes one evaluation each year 
and that the sponsor will dedicate 8 hours to complete this review. We 
multiplied this labor time by the hourly compensation rate of a human 
resource manager ($73.90) and by the total number of sponsors (23,811). 
The cost to the sponsors is thus $14.08 million (23,811 x 1 x 8 x 
$73.90) in 2017. This calculation was repeated according to the 
projected number of sponsors each year, with an annualized cost ranging 
from $16.92 million (with 7 percent discounting) to $17.12 million 
(with 3 percent discounting).
    The self-evaluations will then be reviewed by either the SAAs or 
OA. The Department calculates this burden by assuming that half of the 
evaluations are completed by the SAAs and the rest are completed by OA; 
thus each agency reviews 11,906 (23,811 x 50 percent) evaluations in 
the first year. We multiplied the number of self-evaluations by the 
time needed to review the evaluation, 5 hours, and finally by the 
corresponding hourly compensation rates ($62.33 and $64.71 for the SAAs 
and OA, respectively). The cost in 2017 is $3.71 million for the SAAs 
and $3.88 million for OA. This calculation was repeated according to 
the projected number of sponsors each year, with an annualized cost of 
$4.49 million (with 7 percent discounting) to $4.54 million (with 3 
percent discounting) for SAAs and $4.66 million (with 7 percent 
discounting) to $4.71 million (with 3 percent discounting) for OA.
    Lastly, the Department estimated the cost of completing and 
reviewing the individual complaints. The apprentices would be filling 
out these individual complaints and although the process existed in the 
1978 rule, the Department expects that through general outreach the 
number of complaints would increase by 100 per year. We assumed that 
each individual complaint takes 15 minutes to file (0.25 hours). We 
then multiplied the 0.25 hours by the hourly compensation rate for an 
apprentice ($18.72) to estimate a labor cost of $4.68 and a total cost 
of $468 ($4.68 x 100) each year of the analysis period.\146\
---------------------------------------------------------------------------

    \146\ We calculated the hourly compensation rate for an 
apprentice by multiplying the median hourly wage of $13.00 (as 
published by PayScale for an apprentice electrician) by 1.43 to 
account for private-sector employee benefits (source: OES survey). 
Thus, the hourly compensation rate for an apprentice is $18.59 
($13.00 x 1.43).
---------------------------------------------------------------------------

    The Department again assumed that half of these complaints go to 
SAAs and half go to OA, or 50 complaints total for each agency. To 
calculate the cost, we multiplied the time needed to review each 
complaint (8 hours) by 50 complaints and by the compensation rate for a 
human resource manager. The resulting cost in 2017 is $24,932 (50 x 8 x 
$62.33) for the SAAs and $25,884 (50 x 8 x $64.71) for OA. This 
calculation was repeated for the nine remaining years in the analysis 
period. The total 10-year costs of this alternative range from $183.08 
million to $224.95 million (with 7 percent and 3 percent discounting, 
respectively).
e. Summary of Alternatives
    Exhibit 6 below summarizes the monetized benefits, costs, and net 
present values for the alternatives discussed above. We again use 
discount rates of 3 and 7 percent, respectively, to estimate the 
benefits, costs, and net present values of the alternatives over the 
10-year analysis period.

[[Page 92101]]

[GRAPHIC] [TIFF OMITTED] TR19DE16.003

Regulatory Flexibility Act
    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121 (March 29, 1996), requires federal agencies 
engaged in rulemaking to consider the impact of their proposals on 
small entities, consider alternatives to minimize that impact, and 
solicit public comment on their analyses.\147\ The RFA requires the 
assessment of the impact of a regulation on a wide range of small 
entities, including small businesses, not-for-profit organizations, and 
small governmental jurisdictions.
---------------------------------------------------------------------------

    \147\ Public Law 96-354 (Sept. 19, 1980), Public Law 104-121 
(March 29, 1996).
---------------------------------------------------------------------------

    Agencies must perform a review to determine whether a proposed or 
final rule would have a significant economic impact on a substantial 
number of small entities. 5 U.S.C. 603 and 604. As part of a regulatory 
proposal, the RFA requires a federal agency to prepare, and make 
available for public comment, an initial regulatory flexibility 
analysis that describes the impact of the proposed rule on small 
entities. Id. at 603(a). When an agency expects that a proposed rule 
will not have a significant economic impact on small entities, or the 
number of small entities impacted would be less than substantial, the 
agency may certify those results to the Chief Counsel for Advocacy of 
the Small Business Administration (SBA). Id. at 605(b). The 
certification must include a statement providing the factual basis for 
the agency's determination. Id.
    Based on the analysis below, the Department has notified the Chief 
Counsel for Advocacy, SBA, under the RFA at 5 U.S.C. 605(b), and 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities.
1. Classes of Small Entities
    A small entity is one that is independently owned and operated and 
that is not dominant in its field of operation. 5 U.S.C. 601(3); 15 
U.S.C. 632. The definition of small entity

[[Page 92102]]

varies from industry to industry to properly reflect industry size 
differences. 13 CFR 121.201. An agency must either use the SBA 
definition for a small entity or establish an alternative definition 
for the industry. Using SBA size standards, the Department has 
conducted a small entity impact analysis on small entities in the five 
industry categories with the most registered apprenticeship programs 
and for which data were available: Construction, Manufacturing, 
Service, Transportation and Communication, and Trade.\148\ These top 
five industry categories account for 86 percent of the total number of 
apprenticeship sponsors who had active apprenticeships in FY 2015.\149\
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    \148\ According to RAPIDS, the percent of programs (of all 
sizes) in the selected sectors in 2015 were as follows: 
Construction, 40.2 percent; Manufacturing, 26.7 percent; Service, 
8.6 percent; Transportation and Communication, 7.3 percent; and 
Trade, 2.7 percent.
    \149\ RAPIDS includes a portion of all registered apprenticeship 
programs and apprentices nationwide because SAAs that are recognized 
by the Department of Labor to serve as the Registration Agency may 
choose, but are not required, to participate in RAPIDS. Therefore, 
RAPIDS includes individual level apprentice and apprenticeship 
program data for the 25 states in which OA is the Registration 
agency and 7 SAAs that participate in RAPIDS. Therefore, RAPIDS 
includes data from 32 of the 50 states and the Department estimates 
that they represent 55 to 60 percent of all sponsors and 50 to 55 
percent of all apprentices. We assume that our data set is a good 
predictor of the population of apprenticeship programs nationwide.
---------------------------------------------------------------------------

    One industry, Public Administration, made the initial top-five list 
but is not included in this analysis because no data on the revenue of 
small local jurisdictions were available. Local jurisdictions are 
classified as small when their population is less than 50,000. 5 U.S.C. 
601(5).
    Registered apprenticeship program sponsors may be employers, 
employer associations, industry associations, or labor management 
organizations and, thus, may represent businesses, multiple businesses, 
and not-for-profit organizations. The requirements of the Final Rule, 
however, fall on the sponsor, and therefore we used sponsor data to 
create the industry breakdowns.
    The Department has adopted the SBA small business size standard for 
each of the five industry categories. Since the industry categories 
include multiple NAICS sectors, some industry categories will reflect 
multiple SBA definitions. We accounted for industries included in each 
industry category. In broader NAICS categories, such as Manufacturing 
(NAICS 31-33), the SBA has designated different standards for each six-
digit NAICS code within the larger category. The Department recorded 
these narrower standards in its analysis; in this document, we offer 
the lowest and most restrictive standard where multiple standards 
exist. We follow the SBA standards, which are based on annual revenue 
for some industries and on number of employees for other industries.
    The ``Construction'' industry category follows NAICS exactly (NAICS 
23) and, thus, we used the SBA definitions of revenue less than or 
equal to $36.5 million for NAICS 236 and 237 and $15 million for NAICS 
238. All sponsors included in the data fell into one of these three 
NAICS codes.
    The ``Manufacturing'' industry category includes the standard 
sector for Manufacturing (NAICS 31-33), but also covers Logging (NAICS 
113310); Sand, Gravel, Clay, and Ceramic and Refractory Minerals Mining 
and Quarrying (NAICS 21232); and Newspaper, Periodical, Book, and 
Directory Publishers (NAICS 5111). The corresponding SBA small size 
standards are as follows: Manufacturing--500 employees or less; 
Newspaper, Periodical, Book, and Directory Publishers--500 employees or 
less; Logging--500 employees or less; Sand, Gravel, Clay, and Ceramic--
500 employees or less; and Refractory Minerals Mining and Quarrying--
500 employees or less.\150\
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    \150\ When an industry breakdown uses multiple sector codes, we 
used the more specific NAICS code. Typically, the definition of the 
industry category centers on a particular sector (for example, 
Manufacturing) but it may also include some satellite industries. 
For example, Logging is the only industry in Agriculture, Forestry, 
Fishing, and Hunting (NAICS 11). Thus, including the entire sector 
would be a poor representation of the ``Manufacturing'' industry 
category.
---------------------------------------------------------------------------

    The ``Service'' industry category covers the largest number of 
NAICS sectors, subsectors, and industries.\151\ The majority of these 
industries use the SBA small business size standard of revenue of less 
than or equal to $7.5 million, with the exception of Motion Picture and 
Video Production, which uses $32.5 million; and Dental Laboratories, 
which uses 500 employees or less.
---------------------------------------------------------------------------

    \151\ The included industry sectors are Arts, Entertainment and 
Recreation (NAICS 71); Accommodation (NAICS 721); Other Services 
(NAICS 81); Administrative and Support and Waste Management and 
Remediation Services (NAICS 56); Professional, Scientific, and 
Technical Services (NAICS 541); Rental and Leasing Services (NAICS 
532); Motion Picture and Video Production (NAICS 512110); Dental 
Laboratories (NAICS 339116); Radio, Television and Other Electronic 
Stores (NAICS 44312); Educational Services (NAICS 611); and Health 
Care and Social Assistance (NAICS 62).
---------------------------------------------------------------------------

    The ``Transportation and Communication'' industry category includes 
transportation and warehousing (NAICS 48-49), Marinas (NAICS 713930), 
Other Nonhazardous Waste Treatment and Disposal (NAICS 562219), 
Telecommunication (NAICS 517), Radio and TV Broadcasting (NAICS 5151), 
and Utilities (NAICS 221). The SBA size standard for these industries 
is revenue less than or equal to $7.5 million or 500 employees or less 
for Transportation and Warehousing and Marinas; $32.5 million or 1,500 
employees or less for Telecommunication; $38.5 million for Other 
Nonhazardous Waste Treatment and Disposal; and $32.5 million for Radio 
and TV Broadcasting.\152\
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    \152\ Utilities are categorized as small when their total 
electric output does not exceed 4 million megawatt hours. Because we 
did not have readily available data on megawatt output, we set aside 
the Utilities subsector.
---------------------------------------------------------------------------

    The ``Trade'' industry category includes Merchant Wholesalers, 
Nondurable Goods (NAICS 424) and Durable Goods (NAICS 423); Retail 
Trade (NAICS 44-45); Retail Bakeries (NAICS 311811); and Food Services 
and Drinking Places (NAICS 722). The associated SBA size standards are: 
Merchant Wholesalers, Nondurable Goods and Durable Goods--less than or 
equal to 100 employees, Retail Trade--revenue less than or equal to 
$7.5 million, Retail Bakeries--less than or equal to 1,000 employees 
and Food Services and Drinking Places--revenue less than or equal to 
$7.5 million.
    SBA small business size standards are based on a comprehensive 
survey of industries, and are specific to each industry. Because each 
industry category covers multiple sectors, each category includes 
several criteria that can be used to identify small entities.\153\ To 
determine the average number of employees by small entity, the revenue 
per employee for a small entity, and the percent of entities that 
qualify as a small entity, the Department retrieved data on number of 
employees and annual revenue from ReferenceUSA, a business information 
provider, for approximately 1,600 randomly selected companies. Using 
the SBA small business definitions and through this categorization 
process, we determined that approximately 91 percent (or 1,459) of the 
sample are small entities.\154\
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    \153\ The SBA classifies small entities at the industry level 
but, because our analysis considers affected sectors, we incorporate 
the most common industry standard for each sector or subsector.
    \154\ 91% represents an average of the five sectors. For 
construction, 91.6% of the sample is classified as small. For 
manufacturing, 87.1% of the sample is classified as small. For 
trade, 88.1% of the sample is classified as small. For services, 
91.0% is classified as small. For transportation, 96.2% of the 
sample is classified as small.
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2. Impact on Small Entities
    The Department has estimated the incremental costs for small 
entities from

[[Page 92103]]

the baseline of the 1978 Final Rule.\155\ This analysis reflects the 
incremental cost of the Final Rule, as it adds to the requirements of 
the 1978 Final Rule. Using available data, we have estimated the costs 
of the following provisions: posting of the equal opportunity pledge, 
disseminating information about apprenticeship opportunities through 
universal outreach and recruitment, selected sponsors disseminating 
information about apprenticeship opportunities through targeted 
outreach, the time required to read and review the new regulatory 
requirements, offering periodic orientation and information sessions, 
developing a form for individuals to self-identify a disability, 
conducting utilization and workforce analyses, and reviewing 
affirmative action plans.
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    \155\ 43 FR 20760 (May 12, 1978) (requiring the inclusion of 
female apprentices in AAPs).
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    To examine the impact of this rule on small entities, we evaluated 
the impact of the incremental costs on a hypothetical small entity of 
average size. The total number of workers for the average small entity 
in the different sectors is as follows, based on ReferenceUSA sample 
data: Construction, 15.0; Manufacturing, 132.7; Service, 31.4; 
Transportation and Communication, 49.6; and Trade, 31.0.\156\
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    \156\ Source: ReferenceUSA sample data, 2015. These figures 
originate from the average number of employees and average revenue 
by employee size for a business that qualifies as a small business 
based on the sector-specific size standard.
---------------------------------------------------------------------------

    Using 2015 data from ReferenceUSA we received revenue estimates for 
the sample of firms within each sector. The data showed that small 
entities within each sector had the following average revenue: 
Construction, $3.10 million; Manufacturing, $92.74 million; Service, 
$1.58 million; Transportation and Communication, $39.14 million; and 
Trade, $11.48 million.
    A significant economic burden results when the total incremental 
annual cost as a percentage of total average annual revenue is equal to 
or exceeds 3 percent.\157\ Because the estimated annual burden of the 
Final Rule is less than 1 percent of the average annual revenue of each 
industry category, the Final Rule is not expected to cause a 
significant economic impact to small entities. These entities include 
individual employers, groups of employers, labor management 
organizations, or industry associations that sponsor apprenticeships.
---------------------------------------------------------------------------

    \157\ See Small Business Association, A Guide for Government 
Agencies: How to Comply with the Regulatory Flexibility Act, 17-19 
(June 2010), available at http://www.sba.gov/content/guide-government-agencies-how-comply-with-regulatory-flexibility-act-0 
(last accessed Apr. 7, 2011). The Department has used the 3 percent 
threshold in previous regulations.
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    A provision-by-provision analysis of the estimated small entity 
impacts of the Final Rule is provided below.
3. Impacts of Final Rule Provisions
    The following sections present the impacts that the Final Rule is 
estimated to have on small entities that sponsor apprentices.\158\ 
These include: posting of the equal opportunity pledge, disseminating 
information about apprenticeship opportunities through universal 
outreach and recruitment to individuals with disabilities, 
disseminating information about apprenticeship opportunities through 
targeted outreach and recruitment, reading and reviewing the new 
regulatory requirements, offering periodic orientation and information 
sessions, providing a form for individuals to self-identify a 
disability, conducting utilization and workforce analyses, and 
reviewing affirmative action plans.
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    \158\ The Department used ReferenceUSA data on number of 
employees per entity and annual revenue per entity to determine 
whether each entity in the sample was classified as small based on 
SBA definitions. The Department's previous treatment of sponsors 
with at least 5 apprentices or fewer than 5 apprentices is not 
directly relevant to this RFA analysis. Some sponsors with at least 
5 apprentices may have been classified as small entities based on 
SBA standards if the number of employees or revenue did not exceed 
SBA standards for the corresponding NAICS code; similarly, some 
sponsors with fewer than 5 apprentices may have been classified as 
large if revenue exceeded SBA standards for the corresponding NAICS 
code.
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    The Department estimated the per-entity cost for each one of these 
changes from the baseline, that is, the 1978 Final Rule. Because all 
the Final Rule provisions will have a similar impact on entities across 
economic sectors, we calculated impacts to a representative single 
entity.\159\ As explained in detail below, the total impact amounts to 
approximately $1,658.15 per affected small entity in the first year. 
Average annual cost per affected small entity in years 2 through 10 is 
$2,098.23).\160\ The analysis covers a 10-year period (2017 through 
2026) to ensure it captures costs that accrue over time.
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    \159\ A large entity could have a single apprentice or a small 
entity could have multiple apprentices.
    \160\ Because the number of apprentices does not directly 
correlate with the size of the sponsor, we are unable to account for 
this difference. To avoid under-estimating the impacts, the 
Department assumed that the time to complete the review process is 
independent of the size of the entity and applied the same cost of 
this provision to entities regardless of their size.
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a. Posting of the Equal Opportunity Pledge
    The Final Rule requires sponsors to post their equal opportunity 
pledge at each individual sponsor location, including on bulletin 
boards and through electronic media (Sec.  30.3(b)(2)). The 1978 Final 
Rule did not contain a requirement for posting the pledge. This 
provision represents a cost to sponsors, and reflects the time needed 
to put up a physical copy of the pledge and post it on their Web site 
as well as the cost of the materials.
    To estimate the labor cost of this provision, we assumed that it 
would take a sponsor 5 minutes (0.08 hours) to put up a physical copy 
of the pledge, and that this task would be performed by an 
administrative assistant at an average hourly compensation rate of 
$23.10. We multiplied the time estimate for this provision by the 
average hourly compensation rate to obtain a total labor cost per 
sponsor of $1.85 ($23.10 x 0.08).
    To estimate the materials cost, we assumed that the pledge is one 
page, and that the cost per page for photocopying is $0.08, resulting 
in a materials cost of $0.08 ($0.08 x 1) per sponsor.
    The Department also assumes it will take a sponsor 10 minutes (0.17 
hours) to post the pledge on its Web site and that this task will be 
performed by a web developer at an hourly compensation rate of $45.24. 
The cost of posting the pledge on the sponsor's Web site is $7.69 
($45.24 x 0.17). Summing the labor and materials costs results in an 
annual per-entity cost of $9.62 ($1.85 + $0.08 + $7.69) due to this 
provision.
b. Disseminate Information About Apprenticeship Opportunities Through 
Universal Outreach and Recruitment, Including to Individuals With 
Disabilities
    Under the 1978 Final Rule, sponsors with five or more apprentices 
are required to develop and maintain an affirmative action program, 
which requires, among other things, outreach and recruitment of women 
and minorities. The Final Rule requires that sponsors, in addition to 
contacting organizations that reach women and minorities, also contact 
organizations that serve individuals with disabilities. Sponsors are 
required to develop a list of recruitment sources that generate 
referrals from all demographic groups, women, minorities, and 
individuals with disabilities, with contact information for each 
source. Further, sponsors are required to notify these sources of any 
apprenticeship

[[Page 92104]]

opportunities, preferably with 30 days advance notice.
    We assumed that the cost to sponsors to distribute the information 
about apprenticeship opportunities to organizations serving individuals 
with disabilities will be the labor cost. We also assumed that the 
labor for this provision will be performed by a human resource manager 
and an administrative assistant with average hourly compensation rates 
of $73.90 and $23.10, respectively.
    The Department estimated that this dissemination task will take 0.5 
hours of a human resource manager's time and 0.5 hours of an 
administrative assistant's time per targeted source. The cost of this 
provision per affected sponsor is, therefore, the time each staff 
member devotes to this task (0.5 hours for a human resource manager and 
0.5 hours for an administrative assistant) multiplied by their 
associated average hourly compensation rates. This calculation resulted 
in a total labor cost of $48.50 (($73.90 x 0.5) + ($23.10 x 0.5)) per 
source. This total labor cost is then multiplied by the number of 
outreach sources (5). The annual per-entity cost for this provision is 
$242.50 ($48.50 x 5) for each entity.
c. Disseminate Information About Apprenticeship Opportunities Through 
Targeted Outreach and Recruitment, Including to Individuals With 
Disabilities
    In addition to the normal outreach, recruitment, and retention 
activities required of all sponsors under Sec.  30.3(b), the Final Rule 
requires sponsors of apprenticeship programs, whose utilization 
analyses revealed underutilization of Hispanics or Latinos, women, or a 
particular racial minority group(s) and/or who have determined pursuant 
to Sec.  30.7(f) that there are problem areas with respect to its 
outreach, recruitment, and retention activities of individuals with 
disabilities, to engage in targeted outreach, as discussed in Sec.  
30.8. We assume that this additional outreach will happen in the same 
manner as the universal outreach discussed above.
    This additional outreach, recruitment, and retention will be 
required for sponsors who employ five or more apprentices and who are 
not effectively recruiting and retaining a particular underutilized 
group. We assume that 25 percent of all sponsors currently employ five 
or more apprentices, and are thus required to develop and maintain an 
affirmative action program.\161\ However, the Department recognizes 
that some sponsors may already be employing persons with disabilities 
as registered apprentices and, therefore, this analysis overestimates 
those who need to set goals. Unfortunately, there are no available data 
on the number of sponsors who are employing persons with disabilities 
as registered apprentices.
---------------------------------------------------------------------------

    \161\ The 25 percent of sponsors who employ five or more 
apprenticeships was estimated from the RAPIDS database maintained by 
the Department.
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    For this analysis, we assumed that the 25 percent of all sponsors 
employing five or more apprentices remains constant throughout the 10-
year analysis period. In reality, this percentage will fluctuate as 
sponsors take on new apprentices and as apprentices complete their 
programs. We also expect that, over time, successful outreach will lead 
to more hiring of persons with disabilities and that sponsors will meet 
their recruitment goals and not be required to complete this additional 
outreach.
    We assumed that the cost to sponsors to distribute information 
about apprenticeship opportunities to organizations serving individuals 
with disabilities will be the labor cost. We also assumed that the 
labor for this provision will be performed by a human resource manager 
and an administrative assistant with average hourly compensation rates 
of $73.90 and $23.10, respectively.
    The Department estimated that this dissemination task will take 0.5 
hour of a human resource manager's time and 0.5 hour of an 
administrative assistant's time per targeted source. A sensitivity 
analysis for a range of time spent conducting targeted outreach to 
organizations that serve individuals with disabilities is presented 
below. The cost of this provision per affected sponsor is, therefore, 
the time each staff member devotes to this task (0.5 hour for a human 
resource manager and 0.5 hour for an administrative assistant) 
multiplied by their associated average hourly compensation rates. This 
calculation results in a total labor cost of $48.50 (($73.90 x 0.5) + 
($23.10 x 0.5)) per source. This total labor cost is then multiplied by 
the number of outreach sources (5), yielding a cost per small entity of 
$242.50 ($48.50 x 5) beginning in 2019. The total number of estimated 
sponsors is 26,606 in 2019. We assume that this additional outreach 
will occur 2 years after the Final Rule goes into effect.
d. Reading and Reviewing the New Regulatory Requirements
    During the first year after implementation of the Final Rule, 
sponsors will need to learn about the new regulatory requirements. We 
estimate this cost for a hypothetical small entity by multiplying the 
time required to read the new rule (4 hours) by the average hourly 
compensation rate of a human resources manager ($73.90, as calculated 
above). Thus, the resulting cost per small entity is $295.60 ($73.90 x 
4). This cost occurs only in the year after the Final Rule is 
published.
e. Orientation and Periodic Information Sessions
    Section Sec.  30.3(b)(2) requires each sponsor to conduct 
orientation and periodic information sessions for apprentices and 
journeyworkers who directly supervise apprentices, and other 
individuals connected with the administration or operation of the 
sponsor's apprenticeship program to inform and remind such individuals 
of the sponsor's equal employment opportunity policy with regard to 
apprenticeship and anti-harassment.
    The Department estimated that in the first year a sponsor will hold 
one 45 minute regular orientation and information session with on 
average 24 apprentices ($18.72 per hour) and 24 journeyworkers ($31.68 
per hour) in 2017.\162\ The Department estimated that a human resource 
manager ($73.90 per hour) would need to spend 2 hours to develop and 
prepare written materials for the session in the first year. The first-
year cost per small entity is $1,110.43 ((24 x 0.75 x $18.72) + (24 x 
0.75 x $31.68) + (1 x (2.75) x $73.90)). The average annual cost in 
year 2 through 10 per a small entity for this provision is $1197.83 
\163\
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    \162\ Using 2015 data from the Registered Apprenticeship 
Partners Information Data System (RAPIDS) and the apprentice and 
sponsor growth model in the analysis, the Department calculated that 
there are on average 24 apprentices per sponsor in the program in 
2017. While many small entity sponsors may employ fewer than 24 
apprentices, the Department conservatively assumed that 24 
apprentices and 24 journeyworkers would attend orientation and 
periodic information sessions for small entities.
    \163\ The Department estimated that there are on average 24 
apprentices per sponsor in 2017; 26 in 2018; 27 in 2019; 28 in 2020; 
29 in 2021; 31 in 2022; 32 in 2023; 32 in 2023; 32 in 2024; 33 in 
2025; and 34 in 2026.
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f. Invitation to Self-Identify as an Individual With a Disability
    Section Sec.  30.11 requires sponsors to invite applicants for 
apprenticeship to voluntarily self-identify as an individual with a 
disability protected by this part

[[Page 92105]]

at two stages: (1) At the time they apply or are considered for 
apprenticeship and (2) after they are accepted into the apprenticeship 
program but before they begin their apprenticeship
    Within the first two years of this program, sponsors with 5 or more 
apprentices will need to survey their current workforce with the 
invitation to self-identify. The Department calculated that in 2018 the 
sponsor will survey an average of 26 apprentices ($18.72) with an 
invitation to self-identify provided by the Department. Each apprentice 
will spend 5 minutes (0.08 hour) filling out the form. The Department 
estimated an administrative assistant ($23.10 per hour) would need to 
spend 0.5 hour annually to record and keep the forms. The cost to the 
sponsor for this requirement in 2018 is $50.49 (26 apprentices x $18.72 
x 0.08 hour) + (0.5 hour x $23.10). In addition, the sponsor is 
required to remind apprentices yearly beginning in 2019 that they can 
update their invitation to self-identify. The Department assumed that 
the sponsor would send out a reminder email yearly at the cost of $1.85 
(0.08 hour x $23.10). The total cost of this provision to the sponsor 
in 2019 is $53.83 ($43.00 + $1.85). The average annual cost in year 2 
through 10 per a small entity for this provision is $58.45.\164\
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    \164\ The cost estimates for this provision excludes the costs 
incurred by applicants given that they are not borne by the small 
businesses themselves.
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g. Utilization Analysis and Goal Setting and Workforce Analysis
    The Final Rule requires the Department to develop a tool for 
utilization analyses and provides one hour for sponsors to train a 
human resource manager ($73.90 per hour) on how to use the tool. This 
results in a one-time cost of $73.90 per small entity sponsor in 2018.
    The Final Rule also requires sponsors with five or more apprentices 
to conduct the utilization analysis every five years and the workforce 
analysis every two and a half years. The resulting cost per small 
entity is $7.39 for the utilization analysis (0.5 hour x $73.90/5) in 
2019. There will be a slight cost-saving for sponsors for conducting 
the workforce analysis. For sponsors with five or more apprentices, 
this process is expected to take 2 hours of an HR manager's time 
($73.90 per hour) every 2.5 years compared to a baseline of 1 hour of 
an HR manager's time annually, for a net saving of 0.2 hours or $14.78 
($73.90 x 0.2 hours) per small entity per year. However, this cost 
saving accruing only to sponsors with 5 or more apprentices was not 
accounted for in this analysis to conservatively estimate the costs to 
small entities.
h. Affirmative Action Plan Reviews
    All sponsors are currently required to review their affirmative 
action plans annually. The Department estimates this process to take 8 
hours of a human resource manager's ($73.90 per hour) time for a 
baseline cost of $591.20. Under the Final Rule, with a two-year phase-
in, an HR manager would spend 8 hours annually conducting a personnel 
review, canceling out the baseline cost from 2018 forward. The 
Department also added the costs of conducting a written affirmative 
action plan update at the time of the compliance review every 5 years 
at 12 hours of an HR manager's time (12 x $73.90/5) and conducting a 
written affirmative action plan update within three years of the 
compliance review every 5 years at 6 hours of an HR manager's time (6 x 
$73.90/5) for a net cost of $266.04 ($177.36 + $88.68).
4. Total Cost Burden for Small Entities
    For a hypothetical small entity in the top five industry 
categories, the first year cost of this rule is $1658.15 ($9.62 + 
$242.50 + $295.60 + $1110.43). Average annual cost in years 2 through 
10 is $2,098.23 ($9.62 + $242.50 + $242.50 + $1197.83 + $58.45 + $7.39 
+ $73.90 + $266.04).
    The total cost impacts, as a percent of revenue, are all well below 
the 3 percent threshold for determining a significant economic impact. 
The estimated cost impacts to apprenticeship sponsors for the first 
year, as a percent of revenue, are as follows: Construction, 0.053 
percent; Manufacturing, 0.002 percent; Trade, 0.014 percent; Service, 
0.105 percent; and Transportation and Communication, 0.004 percent. 
None of these impacts for the first year are close to 3 percent of 
revenues, even if considering only the high cost estimates. The 
estimated annual cost impacts to apprenticeship sponsors are as 
follows: Construction, 0.068 percent; Manufacturing, 0.002 percent; 
Trade, 0.018 percent; Service, 0.133 percent; and Transportation and 
Communication, 0.005 percent. None of these impacts are close to 3 
percent of revenues. Exhibit 7 shows the estimated first year and 
annual cost impacts to apprenticeship sponsors by industry.
    The Department estimates the Final Rule would have a significant 
economic impact on ten out of the 1,459 small entities in the sample 
from the top five industries. However, this accounts for 0.7 percent of 
the total number of small entities in the sample, which is less that 
the 15 percent threshold set to be considered as substantial number of 
small entities. As a result of this analysis, the Final Rule is not 
expected to have a significant impact on a substantial number of small 
entities.
[GRAPHIC] [TIFF OMITTED] TR19DE16.004


[[Page 92106]]



Paperwork Reduction Act (PRA)

    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 OMB under the PRA and 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).
    In accordance with the PRA, the Department submitted the identified 
information collections associated with the NPRM to OMB when the NPRM 
was published. The NPRM provided an opportunity for the public to 
comment on the information collections directly to the Department; 
commenters also were advised that comments under the PRA could be 
submitted directly to OMB. OMB issued a notice of action for each 
request asking the Department to resubmit the ICRs at the final rule 
stage and after considering public comments. The Department has 
submitted the related ICRs to OMB for approval; the reviews remain 
pending, and the Department will publish notices in the Federal 
Register to announce the results of those reviews once they are 
complete. The Department discusses the public comments in this section 
of the preamble.
    The Department received three comments concerning the paperwork 
requirements of this Final Rule. One commenter questioned the overall 
need for the rule, claiming that organization was already required to 
comply with other equal employment opportunity rules and adding 
recordkeeping requirements would increase paperwork and result in fewer 
potential sponsors of registered apprenticeship programs. The other two 
commenters also associated an increase in paperwork associated with the 
rule. No commenter, however, quantified the claims.
    One of the commenters offered suggestions for the substantive 
provisions. These are addressed in the analysis for sections 30.3, 
30.5, 30.7, 30.10, 30.11, and 30.12 in this preamble.
    The Department acknowledges the final rule adds recordkeeping and 
paperwork requirements that may slightly increase paperwork burden. 
However, this final rule reduces paperwork burden in other ways. More 
specifically the final rule, streamlines the workforce and utilization 
analysis required of sponsors with five or more apprentices and 
clarifies when and how utilization goals are to be established for 
women and minorities (Sec. Sec.  30.5 through 30.7); reduces the 
frequency with which the workforce and utilization analyses must be 
conducted--from annually under the existing rule to at the time of the 
compliance review for the utilization analysis (every five years on 
average) and within three years of the compliance review for the 
workforce analysis (Sec.  30.12). The Department has reconsidered the 
paperwork burden estimates and determined the increased recordkeeping 
burdens are substantially offset by the reductions.
    The information collections in this Final Rule are summarized as 
follows.
    Agency: DOL-ETA.
    Title of Collection: Labor Standards for the Registration of 
Apprenticeship Programs.
    Type of Review: Revision.
    OMB Control Number: 1205-0223.
    Affected Public: State, Local, and Tribal Governments, Individuals 
or Households and Private Sector.
    Obligation to Respond: Required to obtain or retain a benefit.
    Total Estimated Number of Respondents Annually: 138,229.
    Total Estimated Number of Annual Responses: 138,229.
    Frequency of Responses: Annually.
    Total Estimated Annual Time Burden: 14,724.
    Total Estimated Annual Other Costs Burden: $0.
    Regulations sections: Sec.  29.3, Sec.  29.7, Sec.  29.5, Sec.  
29.13, Sec.  29.14, Sec.  29.6.
Overview and Response to Comments Received
    Overview: Title 29 CFR 29.5 requires sponsors to meet 
apprenticeship standards to have a registered apprenticeship program. 
This information collection package contains the ETA Form 671, 
Apprenticeship Agreement Form. The form has been modified to provide 
voluntary self-identification of an individual with a disability. Such 
information is collected on a separate tear-off sheet that is 
maintained separately from the Apprenticeship Agreement Form and 
treated as confidential.
    The Department received no comments on this information collection.
    Agency: DOL-ETA.
    Title of Collection: Equal Employment Opportunity in 
Apprenticeship.
    Type of Review: Revision.
    OMB Control Number: 1205-0224.
    Affected Public: State, Local, and Tribal Governments; Individuals 
or Households.
    Obligation to Respond: Required to Obtain or Retain Benefits.
    Total Estimated Number of Respondents Annually: 19,277.
    Total Estimated Number of Annual Responses: 34,490.
    Total Estimated Annual Time Burden: 3,219 hours.
    Total Estimated Annual Other Costs Burden: $0.
    Regulations sections: Sec.  30.3, Sec.  30.4, Sec.  30.5, Sec.  
30.6, Sec.  30.8, Sec.  30.11, Sec.  30.16, Sec.  30.19.
Overview and Response to Comments Received
    Overview: This information collection contains the requirements for 
SAAs to prepare State EEO plans conforming to the regulations, to 
maintain adequate records pertinent to compliance with the regulations, 
and to notify the Department of exemptions from the regulations granted 
to program sponsors.
    The Department received no comments concerning this information 
collection.

Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531-1538) establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments, and on the private sector. This Final Rule does not impose 
any Federal mandates on any State, local, or tribal governments, or the

[[Page 92107]]

private sector, within the meaning of the Unfunded Mandates Reform Act 
of 1995.

Executive Order 13132: Federalism

    As with the NPRM, the Department reviewed the Final Rule in 
accordance with Executive Order 13132. The revisions to part 30 may 
have substantial direct effects on States and on the relationship 
between the Federal government and the States. Although matters of 
Federalism in the National Registered Apprenticeship System are 
primarily established through part 29, Labor Standards for Registration 
of Apprenticeship Programs, which establishes the requirements for the 
recognition of SAAs as Registration Agencies, the proposed revisions to 
part 30 also have direct effect on a State's method of administering 
registered apprenticeship for Federal purposes. In particular, the 
Final Rule requires an SAA that seeks to obtain or maintain recognition 
as the Registration Agency for Federal purposes, submit, at a minimum, 
draft State apprenticeship legislation corresponding to the 
requirements of part 30, and requires all program sponsors registered 
with the State for Federal purposes to comply with the State EEO plan. 
This NPRM also requires OA's Administrator to provide written 
concurrence on any subsequent modifications to the State EEO plan, as 
provided in paragraph 29.13(b)(9) of this title. The Department has 
determined that these requirements are essential to ensure that SAAs 
conform to the new requirements of part 30, as a precondition for 
recognition.
    In the development of this Rule, the Department included several 
mechanisms for consultation with State officials. In 2010, OA conducted 
two listening sessions with members of the National Association of 
State and Territorial Apprenticeship Directors (NASTAD), the 
organization representing apprenticeship officials from the District of 
Columbia, 26 States, and three Territories, to request the members' 
recommendations for updating part 30. Additionally, as discussed 
earlier in the preamble, OA gave consideration to recommendations from 
the ACA, whose membership includes representatives from NASTAD and the 
National Association of State Government Labor Officials (NAGLO). OA 
invited State officials to participate in a series of ``town hall'' 
meetings and a webinar conducted in spring 2010 to elicit the agency's 
stakeholders' recommendations for updating part 30. The Department 
considered all of the issues raised in these fora, and incorporated 
many of them into the NPRM and this Final Rule. Finally, the Department 
specifically solicited comments from State and local government 
officials on the NPRM.
    In response, the Department received several comments raising 
questions as to whether the provisions of the proposed rule, hereby 
adopted into the Final Rule, were in conflict with other State or 
Federal laws, including principally ERISA and state disability laws 
regarding self-identification inquiries. This Final Rule has addressed 
these comments in the Section-by-Section analysis, specifying that no 
such conflict exists as to ERISA and no ascertainable conflict exists 
as to State law. To the extent any such conflict exists, preemption 
shall be restricted to the minimum level necessary to achieve the 
objectives of the National Apprenticeship Act.

Assessment of Federal Regulations and Policies on Families

    The Department certifies that this Final Rule has been assessed 
according to Sec.  654 of Pub. L. 105-277, 112 Stat. 2681, for its 
effect on family well-being. The Department concludes that this Final 
Rule will not adversely affect the well-being of the Nation's families. 
Rather, it should have a positive effect by safeguarding the welfare of 
registered apprentices.

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    The Department has reviewed this proposed rule in accordance with 
Executive Order 13175 and has determined that it does not have ``tribal 
implications.'' This Final Rule 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.''

Executive Order 12988: Civil Justice

    This Final Rule has been drafted and reviewed in accordance with 
Executive Order 12988, Civil Justice Reform, and will not unduly burden 
the Federal court system. This Final Rule has been written so as to 
minimize litigation and provide a clear legal standard for affected 
conduct, and has been reviewed carefully to eliminate drafting errors 
and ambiguities.

List of Subjects

29 CFR Part 29

    Apprentice agreement and complaints, Apprenticeability criteria, 
Program standards, registration and deregistration, Sponsor 
eligibility, State Apprenticeship Agency recognition and derecognition.

29 CFR Part 30

    Administrative practice and procedure, Apprenticeship, Employment, 
Equal employment opportunity, Reporting and recordkeeping requirements, 
Training.

    Signed in Washington, DC.
Portia Wu,
Assistant Secretary, Employment and Training Administration.

    For the reasons stated in the preamble, the Employment and Training 
Administration amends 29 CFR parts 29 and 30 as follows:

PART 29--LABOR STANDARDS FOR THE REGISTRATION OF APPRENTICESHIP 
PROGRAMS

0
1. The authority citation for part 29 continues to read as follows:

    Authority:  Section 1, 50 Stat. 664, as amended (29 U.S.C. 50; 
40 U.S.C. 276c; 5 U.S.C. 301) Reorganization Plan No. 14 of 1950, 64 
Stat. 1267 (5 U.S.C. App. P. 534).


0
2. Amend Sec.  29.5 by revising paragraph (b)(21) to read as follows:


Sec.  29.5  Standards of apprenticeship.

* * * * *
    (b) * * *
    (21) Compliance with 29 CFR part 30, including the equal 
opportunity pledge prescribed in 29 CFR 30.3(c); an affirmative action 
program complying with 29 CFR 30.4; and a method for the selection of 
apprentices complying with 29 CFR 30.10, or compliance with parallel 
requirements contained in a State plan for equal opportunity in 
apprenticeship adopted under 29 CFR part 30 and approved by the 
Department. The apprenticeship standards must also include a statement 
that the program will be conducted, operated and administered in 
conformity with applicable provisions of 29 CFR part 30, as amended, or 
if applicable, an approved State plan for equal opportunity in 
apprenticeship.
* * * * *

0
3. In Sec.  29.7, revise paragraph (j) and add paragraph (l) to read as 
follows:


Sec.  29.7  Apprenticeship agreement.

* * * * *
    (j) A statement that the apprentice will be accorded equal 
opportunity in all phases of apprenticeship employment and training, 
without discrimination because of race, color, religion, national 
origin, sex, sexual

[[Page 92108]]

orientation, age (40 or older), genetic information, or disability.
* * * * *
    (l) A request for demographic data, including the apprentice's 
race, sex, and ethnicity, and disability status.

0
4. Amend Sec.  29.8 by revising paragraph (b)(1)(i) to read as follows:


Sec.  29.8  Reinstatement of program registration.

* * * * *
    (b) * * *
    (1)(i) Deregistration proceedings may be undertaken when the 
apprenticeship program is not conducted, operated, or administered in 
accordance with the program's registered provisions or with the 
requirements of this part, including but not limited to: failure to 
provide on-the-job learning; failure to provide related instruction; 
failure to pay the apprentice a progressively increasing schedule of 
wages consistent with the apprentices skills acquired; or persistent 
and significant failure to perform successfully.
* * * * *

0
5. Amend Sec.  29.14 by revising paragraph (a) to read as to read as 
follows:


Sec.  29.14  Derecognition of State Apprenticeship Agencies.

* * * * *
    (a) Derecognition proceedings for failure to adopt or properly 
enforce a State Plan for Equal Employment Opportunity in Apprenticeship 
must be processed in accordance with the procedures prescribed in this 
part.
* * * * *

0
6. Revise part 30 to read as follows:

PART 30--EQUAL EMPLOYMENT OPPORTUNITY IN APPRENTICESHIP

Sec.
30.1 Purpose, applicability, and relationship to other laws.
30.2 Definitions.
30.3 Equal opportunity standards applicable to all sponsors.
30.4 Affirmative action programs.
30.5 Utilization analysis for race, sex, and ethnicity.
30.6 Establishment of utilization goals for race, sex, and 
ethnicity.
30.7 Utilization goals for individuals with disabilities.
30.8 Targeted outreach, recruitment, and retention.
30.9 Review of personnel processes.
30.10 Selection of apprentices.
30.11 Invitation to self-identify as an individual with a 
disability.
30.12 Recordkeeping.
30.13 Equal employment opportunity compliance reviews.
30.14 Complaints.
30.15 Enforcement actions.
30.16 Reinstatement of program registration.
30.17 Intimidation and retaliation prohibited.
30.18 State apprenticeship agencies.
30.19 Exemptions.

    Authority: Sec. 1, 50 Stat. 664, as amended (29 U.S.C. 50; 40 
U.S.C. 276c; 5 U.S.C. 301); Reorganization Plan No. 14 of 1950, 64 
Stat. 1267, 3 CFR 1949-53 Comp. p. 1007.


Sec.  30.1  Purpose, applicability, and relationship to other laws.

    (a) Purpose. The purpose of this part is to promote equal 
opportunity for apprentices and applicants for apprenticeship in 
registered apprenticeship programs by prohibiting discrimination based 
on race, color, religion, national origin, sex, sexual orientation, age 
(40 or older), genetic information, and disability. This part also 
prescribes affirmative action efforts sponsors must take to ensure 
equal opportunity for apprentices and applicants for apprenticeship. 
The regulations set forth the equal opportunity obligations of 
sponsors, the contents of affirmative action programs, procedures for 
the filing and processing of complaints, and enforcement procedures. 
These regulations also establish procedures for deregistration of an 
apprenticeship program in the event of noncompliance with this part and 
prescribe the equal opportunity requirements for recognition of State 
Apprenticeship Agencies (SAA) under part 29.
    (b) Applicability. This part applies to all sponsors of 
apprenticeship programs registered with either the U.S. Department of 
Labor or a recognized SAA.
    (c) Relationship to other laws. This part does not invalidate or 
limit the remedies, rights, and procedures under any Federal law or the 
law of any State or political subdivision of any State or jurisdiction 
that provides greater or equal protection for individuals based on 
race, color, religion, national origin, sex, sexual orientation, age 
(40 or older), genetic information, or disability than are afforded by 
this part. It may be a defense to a charge of a violation of this part 
that a challenged action is required or necessitated by another Federal 
law or regulation, or that another Federal law or regulation prohibits 
an action that would otherwise be required by this part.


Sec.  30.2  Definitions.

    For the purpose of this part:
    Administrator means the Administrator of the Office of 
Apprenticeship, or any person specifically designated by the 
Administrator.
    Apprentice means a worker at least 16 years of age, except where a 
higher minimum age standard is otherwise fixed by law, who is employed 
to learn an apprenticeable occupation as provided in Sec.  29.4 of this 
chapter under standards of apprenticeship fulfilling the requirements 
of Sec.  29.5 of this chapter.
    Apprenticeship Committee (Committee) means those persons designated 
by the sponsor to administer the program. A committee may be either 
joint or non-joint, as follows:
    (1) A joint committee is composed of an equal number of 
representatives of the employer(s) and of the employees represented by 
a bona fide collective bargaining agent(s).
    (2) A non-joint committee, which may also be known as a unilateral 
or group non-joint (which may include employees) committee, has 
employer representatives but does not have a bona fide collective 
bargaining agent as a participant.
    Apprenticeship program means a plan containing all terms and 
conditions for the qualification, recruitment, selection, employment 
and training of apprentices, as required under 29 CFR parts 29 and 30, 
including such matters as the requirement for a written apprenticeship 
agreement.
    Department means the U.S. Department of Labor.
    Direct threat means a significant risk of substantial harm to the 
health or safety of the individual or others that cannot be eliminated 
or reduced by reasonable accommodation. The determination that an 
individual poses a ``direct threat'' must be based on an individualized 
assessment of the individual's present ability to safely perform the 
essential functions of the job. This assessment must be based on a 
reasonable medical judgment that relies on the most current medical 
knowledge and/or on the best available objective evidence. In 
determining whether an individual would pose a direct threat, the 
factors to be considered include:
    (1) The duration of the risk;
    (2) The nature and severity of the potential harm;
    (3) The likelihood that the potential harm will occur; and
    (4) The imminence of the potential harm.
    Disability \1\ means, with respect to an individual:
---------------------------------------------------------------------------

    \1\ The definitions for the term ``disability'' and other terms 
relevant to defining disability and disability discrimination 
standards, including ``direct threat'', ``major life activities'', 
``physical or mental impairment'', ``qualified applicant or 
apprentice'', ``reasonable accommodation'', and ``undue hardship, 
are taken directly from title I of the Americans with Disabilities 
Act (ADA), as amended, and from the Equal Employment Opportunity 
Commission's regulations implementing the ADA at 29 CFR part 1630, 
to the extent that the ADA, as amended, did not provide a 
definition.

---------------------------------------------------------------------------

[[Page 92109]]

    (1) A physical or mental impairment that substantially limits one 
or more major life activities of such individual;
    (2) A record of such an impairment; or
    (3) Being regarded as having such an impairment.
    EEO means equal employment opportunity.
    Electronic media means media that utilize electronics or 
electromechanical energy for the end user (audience) to access the 
content; and includes, but is not limited to, electronic storage media, 
transmission media, the Internet, extranet, lease lines, dial-up lines, 
private networks, and the physical movement of removable/transportable 
electronic media and/or interactive distance learning.
    Employer means any person or organization employing an apprentice 
whether or not such person or organization is a party to an 
Apprenticeship Agreement with the apprentice.
    Ethnicity, for purposes of recordkeeping and affirmative action, 
has the same meaning as under the Office of Management and Budget's 
Standards for the Classification of Federal Data on Race and Ethnicity, 
or any successor standards. Ethnicity thus refers to the following 
designations:
    (1) Hispanic or Latino--A person of Cuban, Mexican, Puerto Rican, 
Cuban, South or Central American, or other Spanish culture or origin, 
regardless of race.
    (2) Not Hispanic or Latino
    Genetic information means:
    (1) Information about--
    (i) An individual's genetic tests;
    (ii) The genetic tests of that individual's family members;
    (iii) The manifestation of disease or disorder in family members of 
the individual (family medical history);
    (iv) An individual's request for, or receipt of, genetic services, 
or the participation in clinical research that includes genetic 
services by the individual or a family member of the individual; or
    (v) The genetic information of a fetus carried by an individual or 
by a pregnant woman who is a family member of the individual and the 
genetic information of any embryo legally held by the individual or 
family member using an assisted reproductive technology.
    (2) Genetic information does not include information about the sex 
or age of the individual, the sex or age of family members, or 
information about the race or ethnicity of the individual or family 
members that is not derived from a genetic test.\2\
---------------------------------------------------------------------------

    \2\ The definition of the term ``genetic information'' is taken 
directly from the Genetic Information Nondiscrimination Act of 2008 
(GINA) at 42 U.S.C. 2000ff(4) and the EEOC's implementing 
regulations at 29 CFR 1635.3(c).
---------------------------------------------------------------------------

    Journeyworker means a worker who has attained a level of skill, 
abilities and competencies recognized within an industry as having 
mastered the skills and competencies required for the occupation. (Use 
of the term may also refer to a mentor, technician, specialist or other 
skilled worker who has documented sufficient skills and knowledge of an 
occupation, either through formal apprenticeship or through practical 
on-the-job experience and formal training).
    Major life activities include, but are not limited to: Caring for 
oneself, performing manual tasks, seeing, hearing, eating, sleeping, 
walking, standing, sitting, reaching, lifting, bending, speaking, 
breathing, learning, reading, concentrating, thinking, communicating, 
interacting with others, and working. A major life activity also 
includes the operation of a major bodily function, including but not 
limited to, functions of the immune system, special sense organs and 
skin; normal cell growth; and digestive, genitourinary, bowel, bladder, 
neurological, brain, respiratory, circulatory, cardiovascular, 
endocrine, hemic, lymphatic, musculoskeletal, and reproductive 
functions. The operation of a major bodily function includes the 
operation of an individual organ within a body system.
    Office of Apprenticeship (OA) means the office designated by the 
Employment and Training Administration of the U.S. Department of Labor 
to administer the National Registered Apprenticeship System or its 
successor organization.
    Physical or mental impairment means:
    (1) Any physiological disorder or condition, cosmetic 
disfigurement, or anatomical loss affecting one or more body systems, 
such as neurological, musculoskeletal, special sense organs, 
respiratory (including speech organs), cardiovascular, reproductive, 
digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, 
and endocrine; or
    (2) Any mental or psychological disorder, such as intellectual 
disability (formerly termed ``mental retardation''), organic brain 
syndrome, emotional or mental illness, and specific learning 
disabilities.
    Pre-apprenticeship program means a training model designed to 
assist individuals who do not currently possess the minimum 
requirements for selection into an apprenticeship program to meet the 
minimum selection criteria established in a program sponsor's 
apprenticeship standards required under part 29 of this chapter and 
which maintains at least one documented partnership with a Registered 
Apprenticeship program. It involves a form of structured workplace 
education and training in which an employer, employer group, industry 
association, labor union, community-based organization, or educational 
institution collaborates to provide formal instruction that will 
introduce participants to the competencies, skills, and materials used 
in one or more apprenticeable occupations.
    Qualified applicant or apprentice is an individual who, with or 
without reasonable accommodation, can perform the essential functions 
of the apprenticeship program for which the individual applied or is 
enrolled.
    Race, for purposes of recordkeeping and affirmative action, has the 
same meaning as under the Office of Management and Budget's Standards 
for the Classification of Federal Data on Race and Ethnicity, or any 
successor standards. Race thus refers to the following designations:
    (1) White--A person having origins in any of the original peoples 
of Europe, the Middle East, or North Africa.
    (2) Black or African American--A person having origins in any of 
the black racial groups of Africa.
    (3) Native Hawaiian or Other Pacific Islander--A person having 
origins in any of the peoples of Hawaii, Guam, Samoa, or other Pacific 
Islands.
    (4) Asian--A person having origins in any of the original peoples 
of the Far East, Southeast Asia, or the Indian Subcontinent including, 
for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, 
the Philippine Islands, Thailand, and Vietnam.
    (5) American Indian or Alaska Native--A person having origins in 
any of the original peoples of North and South America (including 
Central America), and who maintains tribal affiliation or community 
attachment.
    Reasonable accommodation--(1) The term reasonable accommodation 
means:
    (i) Modifications or adjustments to a job application process that 
enable a qualified applicant with a disability to be considered for the 
position such qualified applicant desires; or

[[Page 92110]]

    (ii) Modifications or adjustments to the work environment, or to 
the manner or circumstances under which the position held or desired is 
customarily performed, that enable a qualified individual with a 
disability to perform the essential functions of that position; or
    (iii) Modifications or adjustments that enable a sponsor's 
apprentice with a disability to enjoy equal benefits and privileges of 
apprenticeship as are enjoyed by its other similarly situated 
apprentices without disabilities.
    (2) Reasonable accommodation may include but is not limited to:
    (i) Making existing facilities used by apprentices readily 
accessible to and usable by individuals with disabilities; and
    (ii) Job restructuring; part-time or modified work schedules; 
reassignment to a vacant position; acquisition or modifications of 
equipment or devices; appropriate adjustment or modifications of 
examinations, training materials, or policies; the provision of 
qualified readers or interpreters; and other similar accommodations for 
individuals with disabilities.
    (3) To determine the appropriate reasonable accommodation it may be 
necessary for the sponsor to initiate an informal, interactive process 
with the qualified individual in need of the accommodation. This 
process should identify the precise limitations resulting from the 
disability and potential reasonable accommodations that could overcome 
those limitations.
    Registration Agency means the Office of Apprenticeship or a 
recognized SAA that has responsibility for registering apprenticeship 
programs and apprentices; providing technical assistance; conducting 
quality assurance assessments and reviews of registered apprenticeship 
programs for compliance with the requirements of part 29 and this part.
    Selection procedure means any measure, combination of measures, or 
procedure used as a basis for any decision in apprenticeship. Selection 
procedures include the full range of assessment techniques from 
traditional paper and pencil tests, performance tests, training 
programs, or probationary periods and physical, educational, and work 
experience requirements through informal or casual interviews and 
unscored application forms.
    Sponsor means any person, association, committee or organization 
operating an apprenticeship program, and in whose name the program is 
(or is to be) registered or approved.
    State Apprenticeship Agency (SAA) means an agency of a State 
government that has responsibility and accountability for 
apprenticeship within the State. Only an SAA may seek recognition from 
OA as an agency which has been properly constituted under an acceptable 
law or Executive Order (E.O.), and authorized by OA to register and 
oversee apprenticeship programs and agreements for Federal purposes.
    Undue hardship--(1) In general. Undue hardship means, with respect 
to the provision of an accommodation, significant difficulty or expense 
incurred by a sponsor, when considered in light of the factors set 
forth in paragraph (b) of this definition.
    (2) Factors to be considered. In determining whether an 
accommodation would impose an undue hardship on a sponsor, factors to 
be considered include:
    (i) The nature and net cost of the accommodation needed under this 
part, taking into consideration the availability of tax credits and 
deductions, and/or outside funding;
    (ii) The overall financial resources of the facility or facilities 
involved in the provision of the reasonable accommodation, the number 
of persons employed at such facility, and the effect on expenses and 
resources;
    (iii) The overall financial resources of the sponsor, the overall 
size of the registered apprenticeship program with respect to the 
number of apprentices, and the number, type and location of its 
facilities;
    (iv) The type of operation or operations of the sponsor, including 
the composition, structure and functions of the workforce of such 
entity, and the geographic separateness and administrative or fiscal 
relationship of the facility or facilities in question to the sponsor; 
and
    (v) The impact of the accommodation upon the operation of the 
facility, including the impact on the ability of other apprentices to 
perform their duties and the impact on the facility's ability to 
conduct business.


Sec.  30.3  Equal opportunity standards applicable to all sponsors.

    (a)(1) Discrimination prohibited. It is unlawful for a sponsor of a 
registered apprenticeship program to discriminate against an apprentice 
or applicant for apprenticeship on the basis of race, color, religion, 
national origin, sex, sexual orientation, age (40 or older), genetic 
information, or disability with regard to:
    (i) Recruitment, outreach, and selection procedures;
    (ii) Hiring and/or placement, upgrading, periodic advancement, 
promotion, demotion, transfer, layoff, termination, right of return 
from layoff, and rehiring;
    (iii) Rotation among work processes;
    (iv) Imposition of penalties or other disciplinary action;
    (v) Rates of pay or any other form of compensation and changes in 
compensation;
    (vi) Conditions of work;
    (vii) Hours of work and hours of training provided;
    (viii) Job assignments;
    (ix) Leaves of absence, sick leave, or any other leave; and
    (x) Any other benefit, term, condition, or privilege associated 
with apprenticeship.
    (2) Discrimination standards and defenses. (i) Race, color, 
religion, national origin, sex, or sexual orientation. In implementing 
this section, the Registration Agency will look to the legal standards 
and defenses applied under title VII of the Civil Rights Act of 1964, 
42 U.S.C. 2000e et seq. and Executive Order 11246, as applicable, in 
determining whether a sponsor has engaged in a practice unlawful under 
paragraph (a)(1) of this section.
    (ii) Disability. With respect to discrimination based on a 
disability, the Registration Agency will apply the same standards, 
defenses, and exceptions to the definition of disability as those set 
forth in title I of the Americans with Disabilities Act (ADA), 42 
U.S.C. 12112 and 12113, as amended, and the implementing regulations 
promulgated by the Equal Employment Opportunity Commission (EEOC) at 29 
CFR part 1630, which include, among other things, the standards 
governing reasonable accommodation, medical examinations and 
disability-related inquiries, qualification standards, and direct 
threat defense. The Interpretive Guidance on title I of the ADA set out 
as an appendix to part 1630 issued pursuant to title I may be relied 
upon for guidance in complying with the nondiscrimination requirements 
of this part with respect to the treatment of individuals with 
disabilities.
    (iii) Age. The Registration Agency will apply the same standards 
and defenses for age discrimination as those set forth in the Age 
Discrimination in Employment Act (ADEA), 29 U.S.C. 623, and the 
implementing regulations promulgated by the EEOC at 29 CFR part 1625.
    (iv) Genetic information. The Registration Agency will apply the 
same standards and defenses for discrimination based on genetic 
information as those set forth in the Genetic Information 
Nondiscrimination

[[Page 92111]]

Act (GINA), 29 U.S.C. 2000ff et seq., and the implementing regulations 
promulgated by the EEOC at 29 CFR part 1635.
    (b) General duty to engage in affirmative action. For each 
registered apprenticeship program, a sponsor is required to take 
affirmative steps to provide equal opportunity in apprenticeship. These 
steps must include:
    (1) Assignment of responsibility. The sponsor will designate an 
individual or individuals with appropriate authority under the program, 
such as an apprenticeship coordinator, to be responsible and 
accountable for overseeing its commitment to equal opportunity in 
registered apprenticeship, including the development and implementation 
of an affirmative action program as required by Sec.  30.4. The 
individual(s) must have the resources, support of, and access to the 
sponsor leadership to ensure effective implementation. The 
individual(s) will be responsible for:
    (i) Monitoring all registered apprenticeship activity to ensure 
compliance with the nondiscrimination and affirmative action 
obligations required by this part;
    (ii) Maintaining records required under this part; and
    (iii) Generating and submitting reports as may be required by the 
Registration Agency.
    (2) Internal dissemination of equal opportunity policy. The sponsor 
must inform all applicants for apprenticeship, apprentices, and 
individuals connected with the administration or operation of the 
registered apprenticeship program of its commitment to equal 
opportunity and its affirmative action obligations. In addition, the 
sponsor must require that individuals connected with the administration 
or operation of the apprenticeship program take the necessary action to 
aid the sponsor in meeting its nondiscrimination and affirmative action 
obligations under this part. A sponsor, at a minimum, is required to:
    (i) Publish its equal opportunity pledge--set forth in paragraph 
(c) of this section--in the apprenticeship standards required under 
Sec.  29.5(c) of this title, and in appropriate publications, such as 
apprentice and employee handbooks, policy manuals, newsletters, or 
other documents disseminated by the sponsor or that otherwise describe 
the nature of the sponsorship;
    (ii) Post its equal opportunity pledge from paragraph (c) of this 
section on bulletin boards, including through electronic media, such 
that it is accessible to all apprentices and applicants for 
apprenticeship;
    (iii) Conduct orientation and periodic information sessions for 
individuals connected with the administration or operation of the 
apprenticeship program, including all apprentices and journeyworkers 
who regularly work with apprentices, to inform and remind such 
individuals of the sponsor's equal employment opportunity policy with 
regard to apprenticeship, and to provide the training required by 
paragraph (b)(4)(i) of this section; and
    (iv) Maintain records necessary to demonstrate compliance with 
these requirements and make them available to the Registration Agency 
upon request.
    (3) Universal outreach and recruitment. The sponsor will implement 
measures to ensure that its outreach and recruitment efforts for 
apprentices extend to all persons available for apprenticeship within 
the sponsor's relevant recruitment area without regard to race, sex, 
ethnicity, or disability. In furtherance of this requirement, the 
sponsor must:
    (i) Develop and update annually a list of current recruitment 
sources that will generate referrals from all demographic groups within 
the relevant recruitment area. Examples of relevant recruitment sources 
include: The public workforce system's One-Stop Career Centers and 
local workforce investment boards; community-based organizations; 
community colleges; vocational, career and technical schools; pre-
apprenticeship programs; and Federally-funded, youth job-training 
programs such as YouthBuild and Job Corps or their successors;
    (ii) Identify a contact person, mailing address, telephone number, 
and email address for each recruitment source; and
    (iii) Provide recruitment sources advance notice, preferably 30 
days, of apprenticeship openings so that the recruitment sources can 
notify and refer candidates. Such notification must also include 
documentation of the sponsor's equal opportunity pledge specified in 
paragraph (c) of this section.
    (4) Maintaining apprenticeship programs free from harassment, 
intimidation, and retaliation. The sponsor must develop and implement 
procedures to ensure that its apprentices are not harassed because of 
their race, color, religion, national origin, sex, sexual orientation, 
age (40 or older), genetic information, or disability and to ensure 
that its apprenticeship program is free from intimidation and 
retaliation as prohibited by Sec.  30.17. To promote an environment in 
which all apprentices feel safe, welcomed, and treated fairly, the 
sponsor must ensure the following steps are taken:
    (i) Providing anti-harassment training to all individuals connected 
with the administration or operation of the apprenticeship program, 
including all apprentices and journeyworkers who regularly work with 
apprentices. This training must not be a mere transmittal of 
information, but must include participation by trainees, such as 
attending a training session in person or completing an interactive 
training online. The training content must include, at a minimum, 
communication of the following:
    (A) That harassing conduct will not be tolerated;
    (B) The definition of harassment and the types of conduct that 
constitute unlawful harassment on the basis of race, color, religion, 
national origin, sex, sexual orientation, age (40 or older), genetic 
information, and disability; and
    (C) The right to file a harassment complaint under Sec.  30.14 of 
this part.
    (ii) Making all facilities and apprenticeship activities available 
without regard to race, color, religion, national origin, sex, sexual 
orientation, age (40 or older), genetic information, or disability 
except that if the sponsor provides restrooms or changing facilities, 
the sponsor must provide separate or single-user restrooms and changing 
facilities to assure privacy between the sexes;
    (iii) Establishing and implementing procedures for handling and 
resolving complaints about harassment and intimidation based on race, 
color, religion, national origin, sex, sexual orientation, age (40 or 
older), genetic information, and disability, as well as complaints 
about retaliation for engaging in protected activity described in Sec.  
30.17 of this part.
    (5) Compliance with Federal and State equal employment opportunity 
laws. The sponsor must comply with all other applicable Federal and 
State laws and regulations that require equal employment opportunity 
without regard to race, color, religion, national origin, sex 
(including pregnancy and gender identity, as applicable), sexual 
orientation, age (40 or older), genetic information, or disability. 
Failure to comply with such laws if such noncompliance is related to 
the equal employment opportunity of apprentices and/or graduates of 
such an apprenticeship programs under this part is grounds for 
deregistration or the imposition of other enforcement actions in 
accordance with Sec.  30.15.
    (c) Equal opportunity pledge. (1) Each sponsor of an apprenticeship 
program must include in its Standards of

[[Page 92112]]

Apprenticeship and apprenticeship opportunity announcements the 
following equal opportunity pledge:

    [Name of sponsor] will not discriminate against apprenticeship 
applicants or apprentices based on race, color, religion, national 
origin, sex (including pregnancy and gender identity), sexual 
orientation, genetic information, or because they are an individual 
with a disability or a person 40 years old or older. [Name of 
sponsor] will take affirmative action to provide equal opportunity 
in apprenticeship and will operate the apprenticeship program as 
required under Title 29 of the Code of Federal Regulations, part 30.

    (2) The nondiscrimination bases listed in this pledge may be 
broadened to conform to consistent State and local requirements. 
Sponsors may include additional protected bases but may not exclude any 
of the bases protected by this part.
    (d) Compliance.
    (1) Current sponsors: A sponsor that has a registered 
apprenticeship program as of the effective date of this regulation must 
comply with all obligations of this section within 180 days of the 
effective date of this rule.
    (2) New sponsors: A sponsor registering with a Registration Agency 
after the effective date of this regulation shall comply with all 
obligations of this section upon registration or 180 days after the 
effective date of this regulation, whichever is later.


Sec.  30.4  Affirmative action programs.

    (a) Definition and purpose. As used in this part:
    (1) An affirmative action program is designed to ensure equal 
opportunity and prevent discrimination in apprenticeship programs. An 
affirmative action program is more than mere passive nondiscrimination. 
Such a program requires the sponsor to take affirmative steps to 
encourage and promote equal opportunity, to create an environment free 
from discrimination, and to address any barriers to equal opportunity 
in apprenticeship. An affirmative action program is more than a 
paperwork exercise. It includes those policies, practices, and 
procedures, including self-analyses, that the sponsor implements to 
ensure that all qualified applicants and apprentices are receiving an 
equal opportunity for recruitment, selection, advancement, retention 
and every other term and privilege associated with apprenticeship. An 
affirmative action program should be a part of the way the sponsor 
regularly conducts its apprenticeship program.
    (2) A central premise underlying affirmative action is that, absent 
discrimination, over time a sponsor's apprenticeship program, 
generally, will reflect the sex, race, ethnicity, and disability 
profile of the labor pools from which the sponsor recruits and selects. 
Consistent with this premise, affirmative action programs contain a 
diagnostic component which includes quantitative analyses designed to 
evaluate the composition of the sponsor's apprenticeship program and 
compare it to the composition of the relevant labor pools. If women, 
individuals with disabilities, or individuals from a particular 
minority group, for example, are not being admitted into apprenticeship 
at a rate to be expected given their availability in the relevant labor 
pool, the sponsor's affirmative action program must include specific, 
practical steps designed to address any barriers to equal opportunity 
that may be contributing to this underutilization.
    (3) Effective affirmative action programs include internal auditing 
and reporting systems as a means of measuring the sponsor's progress 
toward achieving an apprenticeship program that would be expected 
absent discrimination.
    (4) An affirmative action program also ensures equal opportunity in 
apprenticeship by incorporating the sponsor's commitment to equality in 
every aspect of the apprenticeship program. Therefore, as part of its 
affirmative action program, a sponsor must monitor and examine its 
employment practices, policies and decisions and evaluate the impact 
such practices, policies and decisions have on the recruitment, 
selection and advancement of apprentices. It must evaluate the impact 
of its employment and personnel policies on minorities, women, and 
persons with disabilities, and revise such policies accordingly where 
such policies or practices are found to create a barrier to equal 
opportunity.
    (5) The commitments contained in an affirmative action program are 
not intended and must not be used to discriminate against any qualified 
applicant or apprentice on the basis of race, color, religion, national 
origin, sex, sexual orientation, age (40 or older), genetic 
information, or disability.
    (b) Adoption of affirmative action programs. Sponsors other than 
those identified in paragraph (d) of this section must develop and 
maintain an affirmative action program, setting forth that program in a 
written plan. The components of the written plan, as detailed in 
Sec. Sec.  30.5 through 30.9, must be developed in accordance with the 
respective compliance dates and made available to the Registration 
Agency any time thereafter upon request.
    (c) Contents of affirmative action programs. An affirmative action 
program must include the following components in addition to those 
required of all sponsors by Sec.  30.3(a):
    (1) Utilization analysis for race, sex, and ethnicity, as described 
in Sec.  30.5;
    (2) Establishment of utilization goals for race, sex, and 
ethnicity, as described in Sec.  30.6;
    (3) Utilization goals for individuals with disabilities, as 
described in Sec.  30.7;
    (4) Targeted outreach, recruitment, and retention, as described in 
Sec.  30.8;
    (5) Review of personnel processes, as described in Sec.  30.9; and
    (6) Invitations to self-identify, as described in Sec.  30.11
    (d) Exemptions--(1) Programs with fewer than five apprentices. A 
sponsor is exempt from the requirements of paragraphs (b) and (c) of 
this section if the sponsor's apprenticeship program has fewer than 
five apprentices registered, unless such program was adopted to 
circumvent the requirements of this section.
    (2) Programs subject to approved equal employment opportunity 
programs. A sponsor is exempt from the requirements of paragraphs (b) 
and (c) of this section if the sponsor both submits to the Registration 
Agency satisfactory evidence that it is in compliance with an equal 
employment opportunity program providing for affirmative action in 
apprenticeship, including the use of goals for any underrepresented 
group or groups of individuals, which has been approved as meeting the 
requirements of either title VII of the Civil Rights Act of 1964, as 
amended (42 U.S.C. 2000e et seq.) and agrees to extend such program to 
include individuals with disabilities, or if the sponsor submits to the 
Registration Agency satisfactory evidence that it is in compliance with 
an equal employment opportunity program providing for affirmative 
action in apprenticeship, including the use of goals for any 
underrepresented group or groups of individuals, which has been 
approved as meeting the requirements of both Executive Order 11246, as 
amended, and section 503 of the Rehabilitation Act, as amended (29 
U.S.C. 793), and their implementing regulations at title 41 of the Code 
of Federal Regulations, Chapter 60: Provided, That programs approved, 
modified or renewed subsequent to the effective date of this amendment 
will qualify for this exception only if the goals for any 
underrepresented group for the selection of apprentices provided for in 
such programs are likely to be

[[Page 92113]]

equal to or greater than the goals required under this part.
    (e) Written affirmative action plans. Sponsors required to 
undertake an affirmative action program must create and update a 
written document memorializing and discussing the contents of the 
program set forth in paragraph (c) of this section.
    (1) Compliance--(i) Apprenticeship programs existing as of January 
18, 2017. The initial written affirmative action plan for such programs 
must be completed within two years of January 18, 2017. The written 
affirmative action plan for such programs must be updated every time 
the sponsor completes workforce analyses required by Sec. Sec.  30.5(b) 
and 30.7(d)(2).
    (ii) Apprenticeship programs registered after January 18, 2017. The 
initial written affirmative action plan for such programs must be 
completed within two years of registration. The written affirmative 
action plan for such programs must be updated every time the sponsor 
completes workforce analyses required by Sec. Sec.  30.5(b) and 
30.7(d)(2).


Sec.  30.5  Utilization analysis for race, sex, and ethnicity.

    (a) Purpose. The purpose of the utilization analysis is to provide 
sponsors with a method for assessing whether possible barriers to 
apprenticeship exist for particular groups of individuals by 
determining whether the race, sex, and ethnicity of apprentices in a 
sponsor's apprenticeship program is reflective of persons available for 
apprenticeship by race, sex, and ethnicity in the relevant recruitment 
area. Where significant disparity exists between availability and 
representation, the sponsor will be required to establish a utilization 
goal pursuant to Sec.  30.6.
    (b) Analysis of apprenticeship program workforce--(1) Process. 
Sponsors must analyze the race, sex, and ethnic composition of their 
apprentice workforce. This is a two-step process. First, each sponsor 
must group all apprentices in its registered apprenticeship program by 
occupational title. Next, for each occupation represented, the sponsor 
must identify the race, sex, and ethnicity of its apprentices within 
that occupation.
    (2) Schedule of analyses. Each sponsor is required to conduct an 
apprenticeship program workforce analysis at each compliance review, 
and again if and when three years have passed without a compliance 
review. This updated workforce analysis should be compared to the 
utilization goal established at the sponsor's most recent compliance 
review to determine if the sponsor is underutilized, according to the 
process in paragraph (d) of this section.
    (3) Compliance date. (i) Sponsors registered with a Registration 
Agency as of January 18, 2017: A sponsor must conduct its first 
workforce analysis, pursuant to this section, no later than two years 
after January 18, 2017.
    (ii) New sponsors: A sponsor registering with a Registration Agency 
after the effective date of the Final Rule must conduct its initial 
workforce analysis pursuant to this section no later than two years 
after the date of registration.
    (c) Availability analysis--(1) The purpose of the availability 
analysis is to establish a benchmark against which the demographic 
composition of the sponsor's apprenticeship program can be compared in 
order to determine whether barriers to equal opportunity may exist with 
regard to the sponsor's apprenticeship program.
    (2) Availability is an estimate of the number of qualified 
individuals available for apprenticeship by race, sex, and ethnicity 
expressed as a percentage of all qualified persons available for 
apprenticeship in the sponsor's relevant recruitment area.
    (3) In determining availability, the following factors must be 
considered for each major occupation group represented in the sponsor's 
registered apprenticeship program standards:
    (i) The percentage of individuals who are eligible for enrollment 
in the apprenticeship program. within the sponsor's relevant 
recruitment area broken down by race, sex, and ethnicity; and
    (ii) The percentage of the sponsor's employees who are eligible for 
enrollment in the apprenticeship program broken down by race, sex, and 
ethnicity.
    (4) In determining availability, the relevant recruitment area is 
defined as the geographical area from which the sponsor usually seeks 
or reasonably could seek apprentices. The sponsor must identify the 
relevant recruitment area in its written affirmative action plan. The 
sponsor may not draw its relevant recruitment area in such a way as to 
have the effect of excluding individuals based on race, sex, or 
ethnicity from consideration, and must develop a brief rationale for 
selection of that recruitment area.
    (5) Availability will be derived from the most current and discrete 
statistical information available. Examples of such information include 
census data, data from local job service offices, and data from 
colleges or other training institutions.
    (6) Sponsors, working with the Registration Agency, will conduct 
availability analyses at each compliance review.
    (d) Rate of utilization. To determine the rate of utilization, the 
sponsor, working with the Registration Agency, must group each 
occupational title in its apprenticeship workforce by major occupation 
group and compare the racial, sex, and ethnic representation within 
each major occupation group to the racial, sex, and ethnic 
representation available in the relevant recruitment area, as 
determined in paragraph (c) of this section. When the sponsor's 
utilization of women, Hispanics or Latinos, or a particular racial 
minority group is significantly less than would be reasonably expected 
given the availability of such individuals for apprenticeship, the 
sponsor must establish a utilization goal for the affected group in 
accordance with the procedures set forth in Sec.  30.6. Sponsors are 
not required or expected to establish goals where no significant 
disparity in utilization rates has been found.


Sec.  30.6  Establishment of utilization goals for race, sex, and 
ethnicity.

    (a) Where, pursuant to Sec.  30.5, a sponsor is required to 
establish a utilization goal for a particular racial, sex, or ethnic 
group in a major occupation group in its apprenticeship program, the 
sponsor, working with the Registration Agency, must establish a 
percentage goal at least equal to the availability figure derived under 
Sec.  30.5(c) for that major occupation group.
    (b) A sponsor's determination under Sec.  30.5 that a utilization 
goal is required constitutes neither a finding nor an admission of 
discrimination.
    (c) Utilization goals serve as objectives or targets reasonably 
attainable by means of applying every good faith effort to make all 
aspects of the entire affirmative action program work. Utilization 
goals are used to measure the effectiveness of the sponsor's outreach, 
recruitment, and retention efforts.
    (d) In establishing utilization goals, the following principles 
apply:
    (1) Utilization goals may not be rigid and inflexible quotas, which 
must be met, nor are they to be considered either a ceiling or a floor 
for the selection of particular groups as apprentices. Quotas are 
expressly forbidden.
    (2) Utilization goals may not provide a sponsor with a 
justification to extend a preference to any individual, select an 
individual, or adversely affect an

[[Page 92114]]

individual's status as an apprentice, on the basis of that person's 
race, sex, or ethnicity.
    (3) Utilization goals do not create set-asides for specific groups, 
nor are they intended to achieve proportional representation or equal 
results.
    (4) Utilization goals may not be used to supersede eligibility 
requirements for apprenticeship. Affirmative action programs prescribed 
by the regulations of this part do not require sponsors to select a 
person who lacks qualifications to participate in the apprenticeship 
program successfully, or select a less-qualified person in preference 
to a more qualified one.


Sec.  30.7  Utilization goals for individuals with disabilities.

    (a) Utilization goal. The Administrator of OA has established a 
utilization goal of 7 percent for employment of qualified individuals 
with disabilities as apprentices for each major occupation group within 
which the sponsor has an apprenticeship program.
    (b) Purpose. The purpose of the utilization goal established in 
paragraph (a) of this section is to establish a benchmark against which 
the sponsor must measure the representation of individuals with 
disabilities in the sponsor's apprentice workforce by major occupation 
group. The goal serves as an equal opportunity objective that should be 
attainable by complying with all of the affirmative action requirements 
of this part.
    (c) Periodic review of goal. The Administrator of OA will 
periodically review and update, as appropriate, the utilization goal 
established in paragraph (a) of this section.
    (d) Utilization analysis--(1) Purpose. The utilization analysis is 
designed to evaluate the representation of individuals with 
disabilities in the sponsor's apprentice workforce grouped by major 
occupation group. If individuals with disabilities are represented in 
the sponsor's apprentice workforce in any given major occupation group 
at a rate less than the utilization goal, the sponsor must take 
specific measures outlined in paragraphs (e) and (f) of this section.
    (2) Apprentice workforce analysis--(i) Process. Sponsors are 
required to analyze the representation of individuals with disabilities 
within their apprentice workforce by occupation. This is a two-step 
process. First, as required in Sec.  30.5, each sponsor must group all 
apprentices in its registered apprenticeship program according to the 
occupational titles represented in its registered apprenticeship 
program. Next, for each occupation represented, the sponsor must 
identify the number of apprentices with disabilities.
    (ii) Schedule of evaluation. The sponsor must conduct its 
apprentice workforce analysis at each compliance review, and again if 
and when three years have passed without a compliance review. This 
updated workforce analysis, grouped according to major occupation 
group, should then be compared to the utilization goal established 
under paragraph (a) of this section.
    (iii) Compliance date. (A) Sponsors currently registered with a 
Registration Agency: A sponsor must conduct its first workforce 
analysis, pursuant to this section, no later than two years after 
January 18, 2017.
    (B) New sponsors: A sponsor registering with a Registration Agency 
after January 18, 2017 must conduct its initial workforce analysis 
pursuant to this section no later than two years after the date of 
registration.
    (e) Identification of problem areas. When the sponsor, working with 
the Registration Agency, determines that the percentage of individuals 
with disabilities in one or more major occupation groups within which a 
sponsor has apprentices is less than the utilization goal established 
in paragraph (a) of this section, the sponsor must take steps to 
determine whether and/or where impediments to equal opportunity exist. 
When making this determination, the sponsor must look at the results of 
its assessment of personnel processes required by Sec.  30.9 and the 
effectiveness of its outreach and recruitment efforts required by Sec.  
30.8 of this part, if applicable.
    (f) Action-oriented programs. The sponsor must undertake action-
oriented programs, including targeted outreach, recruitment, and 
retention activities identified in Sec.  30.8, designed to correct any 
problem areas that the sponsor identified pursuant to its review of 
personnel processes and outreach and recruitment efforts.
    (g) Utilization goal relation to discrimination. A determination 
that the sponsor has not attained the utilization goal established in 
paragraph (a) of this section in one or more major occupation groups 
does not constitute either a finding or admission of discrimination in 
violation of this part.
    (h) Utilization goal not a quota or ceiling. The utilization goal 
established in paragraph (a) of this section must not be used as a 
quota or ceiling that limits or restricts the employment of individuals 
with disabilities as apprentices.


Sec.  30.8  Targeted outreach, recruitment, and retention.

    (a) Minimum activities required. Where a sponsor has found 
underutilization and established a utilization goal for a specific 
group or groups pursuant to Sec.  30.6 and/or where a sponsor has 
determined pursuant to Sec.  30.7(f) that there are problem areas 
resulting in impediments to equal employment opportunity, the sponsor 
must undertake targeted outreach, recruitment, and retention activities 
that are likely to generate an increase in applications for 
apprenticeship and improve retention of apprentices from the targeted 
group or groups and/or from individuals with disabilities, as 
appropriate. In furtherance of this requirement, the sponsor must:
    (1) Set forth in its written affirmative action plan the specific 
targeted outreach, recruitment, and retention activities it plans to 
take for the upcoming program year. Such activities must include at a 
minimum:
    (i) Dissemination of information to organizations serving the 
underutilized group regarding the nature of apprenticeship, 
requirements for selection for apprenticeship, availability of 
apprenticeship opportunities, and the equal opportunity pledge of the 
sponsor. These organizations may include: Community-based 
organizations; local high schools; local community colleges; local 
vocational, career and technical schools; and local workforce system 
partners including One Stop Career Centers;
    (ii) Advertising openings for apprenticeship opportunities by 
publishing advertisements in appropriate media which have wide 
circulation in the relevant recruitment areas;
    (iii) Cooperation with local school boards and vocational education 
systems to develop and/or establish relationships with pre-
apprenticeship programs targeting students from the underutilized group 
to prepare them to meet the standards and criteria required to qualify 
for entry into apprenticeship programs; and
    (iv) Establishment of linkage agreements or partnerships enlisting 
the assistance and support of pre-apprenticeship programs, community-
based organizations, advocacy organizations, or other appropriate 
organizations, in recruiting qualified individuals for apprenticeship;
    (2) Evaluate and document after every selection cycle for 
registering apprentices the overall effectiveness of such activities;

[[Page 92115]]

    (3) Refine its targeted outreach, recruitment, and retention 
activities as needed; and
    (4) Maintain records of its targeted outreach, recruitment, and 
retention activities and records related to its evaluation of these 
activities.
    (b) Other activities. In addition to the activities set forth in 
paragraph (a) of this section, as a matter of best practice, sponsors 
are encouraged but not required to consider other outreach, 
recruitment, and retention activities that may assist sponsors in 
addressing any barriers to equal opportunity in apprenticeship. Such 
activities include but are not limited to:
    (1) Enlisting the use of journeyworkers from the underutilized 
group or groups to assist in the implementation of the sponsor's 
affirmative action program;
    (2) Enlisting the use of journeyworkers from the underutilized 
group or groups to mentor apprentices and to assist with the sponsor's 
targeted outreach and recruitment activities; and
    (3) Conducting exit interviews of each apprentice who leaves the 
sponsor's apprenticeship program prior to receiving a certificate of 
completion to understand better why the apprentice is leaving the 
program and to help shape the sponsor's retention activities.


Sec.  30.9  Review of personnel processes.

    (a) As part of its affirmative action program, the sponsor must, 
for each registered apprenticeship program, engage in an annual review 
of its personnel processes related to the administration of the 
apprenticeship program to ensure that the sponsor is operating an 
apprenticeship program free from discrimination based on race, color, 
religion, national origin, sex, sexual orientation, age (40 or older), 
genetic information, and disability. This annual review is required 
regardless of whether the sponsor is underutilized as described in 
Sec.  30.5(d). The review must be a careful, thorough, and systematic 
one and include review of all aspects of the apprenticeship program at 
the program, industry and occupation level, including, but not limited 
to, the qualifications for apprenticeship, application and selection 
procedures, wages, outreach and recruitment activities, advancement 
opportunities, promotions, work assignments, job performance, rotations 
among all work processes of the occupation, disciplinary actions, 
handling of requests for reasonable accommodations, and the program's 
accessibility to individuals with disabilities (including to the use of 
information and communication technology). The sponsor must make any 
necessary modifications to its program to ensure that its obligations 
under this part are met.
    (1) Compliance date. (i) Current sponsors: A sponsor that has a 
registered apprenticeship program as of the effective date of this 
regulation must comply with the obligations of paragraph (a) of this 
section within two years of the effective date of this rule.
    (ii) New sponsors: A sponsor registering with a Registration Agency 
after the effective date of this regulation shall comply with the 
obligations of paragraph (a) of this section within two years after the 
date of registration.
    (2) [Reserved]
    (b) The sponsor must include a description of its review in its 
written affirmative action plan and identify in the written plan any 
modifications made or to be made to the program as a result of its 
review.


Sec.  30.10  Selection of apprentices.

    (a) A sponsor's procedures for selection of apprentices must be 
included in the written plan for Standards of Apprenticeship submitted 
to and approved by the Registration Agency, as required under Sec.  
29.5 of this title.
    (b) Sponsors may utilize any method or combination of methods for 
selection of apprentices, provided that the selection method(s) used 
meets the following requirements:
    (1) The use of the selection procedure(s) must comply with the 
Uniform Guidelines on Employee Selection Procedures (UGESP) (41 CFR 
part 60-3), including the requirements to evaluate the impact of the 
selection procedure on race, sex, and ethnic groups (Hispanic or 
Latino/non-Hispanic or Latino) and to demonstrate job-relatedness and 
business necessity for those procedures that result in adverse impact 
in accordance with the requirements of UGESP.
    (2) The selection procedure(s) must be uniformly and consistently 
applied to all applicants and apprentices within each selection 
procedure utilized.
    (3) The selection procedure(s) must comply with title I of the ADA 
and EEOC's implementing regulations at part 1630. This procedure(s) 
must not screen out or tend to screen out an individual with a 
disability or a class of individuals with disabilities, on the basis of 
disability, unless the standard, test or other selection criteria, as 
used by the program sponsor, is shown to be job-related for the 
position in question and is consistent with business necessity.
    (4) The selection procedure(s) must be facially neutral in terms of 
race, color, religion, national origin, sex, sexual orientation, age 
(40 or older), genetic information, and disability.


Sec.  30.11  Invitation to self-identify as an individual with a 
disability.

    (a) Pre-offer. (1) A sponsor adopting an affirmative action program 
pursuant to Sec.  30.4 must invite applicants for apprenticeship to 
inform the sponsor whether the applicant believes that that he or she 
is an individual with a disability as defined in Sec.  30.2. This 
invitation must be provided to each applicant when the applicant 
applies or is considered for apprenticeship. The invitation may be 
included with the application materials for apprenticeship, but must be 
separate from the application.
    (2) The sponsor must invite an applicant to self-identify as 
required in paragraph (a) of this section using the language and manner 
prescribed by the Administrator and published on the OA Web site.
    (b) Post offer. (1) At any time after acceptance into the 
apprenticeship program, but before the applicant begins his or her 
apprenticeship, the sponsor must invite the applicant to inform the 
sponsor whether the applicant believes that he or she is an individual 
with a disability as defined in Sec.  30.2.
    (2) The sponsor must invite an applicant to self-identify as 
required in paragraph (b) of this section using the language and manner 
prescribed by the Administrator and published on the OA Web site.
    (c) Apprentices. (1) Within the timeframe specified in paragraph 
(h) below, the sponsor must make a one-time invitation to each current 
apprentice to inform the sponsor whether he or she is an individual 
with a disability as defined in Sec.  30.2. The sponsor must make this 
invitation using the language and manner prescribed by the 
Administrator and published on the OA Web site.
    (2) Thereafter, the sponsor must remind apprentices yearly that 
they may voluntarily update their disability status.
    (d) Voluntary self-identification for apprentices. The sponsor may 
not compel or coerce an individual to self-identify as an individual 
with a disability.
    (e) Confidentiality. The sponsor must keep all information on self-
identification confidential, and must maintain it in a data analysis 
file (rather than the medical files of individual apprentices) as 
required under Sec.  30.12(e). The sponsor must provide

[[Page 92116]]

self-identification information to the Registration Agency upon 
request. Self-identification information may be used only in accordance 
with this part.
    (f) Affirmative action obligations. Nothing in this section may 
relieve the sponsor of its obligation to take affirmative action with 
respect to those applicants and apprentices of whose disability the 
sponsor has knowledge.
    (g) Nondiscrimination obligations. Nothing in this section may 
relieve the sponsor from liability for discrimination in violation of 
this part.
    (h) Compliance dates. (1) Sponsors currently registered with a 
Registration Agency: A sponsor must begin inviting applicants and 
apprentices to identify as individuals with disabilities, pursuant to 
this section, no later than two years after the January 18, 2017. A 
sponsor must also invite each of its current apprentices to voluntarily 
inform the sponsor whether the apprentice believes that he or she is an 
individual with a disability, as defined in Sec.  30.2, no later than 
two years after January 18, 2017.
    (2) New sponsors: A sponsor registering with a Registration Agency 
after the effective date of this Final Rule must begin inviting 
applicants and apprentices to identify as individuals with 
disabilities, pursuant to this section, no later than two years after 
the date of registration. A sponsor covered by this subparagraph must 
also invite each of its current apprentices to voluntarily inform the 
sponsor whether the apprentice believes that he or she is an individual 
with a disability, as defined in Sec.  30.2, no later than two years 
after the date of registration.


Sec.  30.12  Recordkeeping.

    (a) General obligation. Each sponsor must collect such data and 
maintain such records as the Registration Agency finds necessary to 
determine whether the sponsor has complied or is complying with the 
requirements of this part. Such records must include, but are not 
limited to records relating to:
    (1) Selection for apprenticeship, including applications, tests and 
test results, interview notes, bases for selection or rejection, and 
any other records required to be maintained under UGESP;
    (2) The invitation to self-identify as an individual with a 
disability;
    (3) Information relative to the operation of the apprenticeship 
program, including but not limited to job assignments in all components 
of the occupation as required under Sec.  29.5(b)(3) of this title, 
promotion, demotion, transfer, layoff, termination, rates of pay, other 
forms of compensation, conditions of work, hours of work, hours of 
training provided, and any other personnel records relevant to EEO 
complaints filed with the Registration Agency under Sec.  30.14 or with 
other enforcement agencies;
    (4) Compliance with the requirements of Sec.  30.3;
    (5) Requests for reasonable accommodation; and
    (6) Any other records pertinent to a determination of compliance 
with these regulations, as may be required by the Registration Agency.
    (b) Sponsor identification of record. For any record the sponsor 
maintains pursuant to this part, the sponsor must be able to identify 
the race, sex, ethnicity (Hispanic or Latino/non-Hispanic or Latino), 
and when known, disability status of each apprentice, and where 
possible, the race, sex, ethnicity, and disability status of each 
applicant to apprenticeship and supply this information upon request to 
the Registration Agency.
    (c) Affirmative action programs. Each sponsor required under Sec.  
30.4 to develop and maintain an affirmative action program must retain 
both the written affirmative action plan and documentation of its 
component elements set forth in Sec. Sec.  30.5, 30.6, 30.7, 30.8, 
30.9, and 30.11.
    (d) Maintenance of records. The records required by this part and 
any other information relevant to compliance with these regulations 
must be maintained for 5 years from the date of the making of the 
record or the personnel action involved, whichever occurs later, and 
must be made available upon request to the Registration Agency or other 
authorized representative in such form as the Registration Agency may 
determine is necessary to enable it to ascertain whether the sponsor 
has complied or is complying with this part. Failure to preserve 
complete and accurate records as required by paragraphs (a), (b), and 
(c) of this section constitutes noncompliance with this part.
    (e) Confidentiality and use of medical information. (1) Any 
information obtained pursuant to this part regarding the medical 
condition or history of an applicant or apprentice must be collected 
and maintained on separate forms and in separate medical files and 
treated as a confidential medical record, except that:
    (i) Supervisors and managers may be informed regarding necessary 
restrictions on the work or duties of the applicant or apprentice and 
necessary accommodations;
    (ii) First aid and safety personnel may be informed, when 
appropriate, if the disability might require emergency treatment; and
    (iii) Government officials engaged in enforcing this part, the laws 
administered by OFCCP, or the ADA, must be provided relevant 
information on request.
    (2) Information obtained under this part regarding the medical 
condition or history of any applicant or apprentice may not be used for 
any purpose inconsistent with this part.
    (f) Access to records. Each sponsor must permit access during 
normal business hours to its places of business for the purpose of 
conducting on-site EEO compliance reviews and complaint investigations 
and inspecting and copying such books, accounts, and records, including 
electronic records, and any other material the Registration Agency 
deems relevant to the matter under investigation and pertinent to 
compliance with this part. The sponsor must also provide the 
Registration Agency access to these materials, including electronic 
records, off-site for purposes of conducting EEO compliance reviews and 
complaint investigations. Upon request, the sponsor must provide the 
Registration Agency information about all format(s), including specific 
electronic formats, in which its records and other information are 
available. Information obtained in this manner will be used only in 
connection with the administration of this part or other applicable EEO 
laws.


Sec.  30.13  Equal employment opportunity compliance reviews.

    (a) Conduct of compliance reviews. The Registration Agency will 
regularly conduct EEO compliance reviews to determine if the sponsor 
maintains compliance with this part, and will also conduct EEO 
compliance reviews when circumstances so warrant. An EEO compliance 
review may consist of, but is not limited to, comprehensive analyses 
and evaluations of each aspect of the apprenticeship program through 
off-site reviews, such as desk audits of records submitted to the 
Registration Agency, and on-site reviews conducted at the sponsor's 
establishment that may involve examination of records required under 
this part; inspection and copying of documents related to recordkeeping 
requirements of this part; and interviews with employees, apprentices, 
journeyworkers, supervisors, managers, and hiring officials.
    (b) Notification of compliance review findings. Within 45 business 
days of completing an EEO compliance review, the Registration Agency 
must present a written Notice of Compliance Review Findings to the 
sponsor's contact person

[[Page 92117]]

through registered or certified mail, with return receipt requested. If 
the compliance review indicates a failure to comply with this part, the 
registration agency will so inform the sponsor in the Notice and will 
set forth in the Notice the following:
    (1) The deficiency(ies) identified;
    (2) How to remedy the deficiency(ies);
    (3) The timeframe within which the deficiency(ies) must be 
corrected; and
    (4) Enforcement actions may be undertaken if compliance is not 
achieved within the required timeframe.
    (c) Compliance. (1) When a sponsor receives a Notice of Compliance 
Review Findings that indicates a failure to comply with this part, the 
sponsor must, within 30 business days of notification, either implement 
a compliance action plan and notify the Registration Agency of that 
plan or submit a written rebuttal to the Findings. Sponsors may also 
seek to extend this deadline one time by up to 30 days for good cause 
shown. If the Registration Agency upholds the Notice after receiving a 
written response, the sponsor must implement a compliance action plan 
within 30 days of receiving the notice from the Registration Agency 
upholding its Findings. The compliance action plan must include, but is 
not limited to, the following provisions:
    (i) A specific commitment, in writing, to correct or remediate 
identified deficiency(ies) and area(s) of noncompliance;
    (ii) The precise actions to be taken for each deficiency 
identified;
    (iii) The time period within which the cited deficiency(ies) will 
be remedied and any corrective program changes implemented; and
    (iv) The name of the individual(s) responsible for correcting each 
deficiency identified.
    (2) Upon the Registration Agency's approval of the compliance 
action plan, the sponsor may be considered in compliance with this part 
provided that the compliance action plan is implemented.
    (d) Enforcement actions. Any sponsor that fails to implement its 
compliance action plan within the specified timeframes may be subject 
to an enforcement action under Sec.  30.15.


Sec.  30.14  Complaints.

    (a) Requirements for individuals filing complaints--(1) Who may 
file. Any individual who believes that he or she has been or is being 
discriminated against on the basis of race, color, religion, national 
origin, sex, sexual orientation, age (40 or older), genetic 
information, or disability with regard to apprenticeship, or who 
believes he or she has been retaliated against as described in Sec.  
30.17, may, personally or through an authorized representative, file a 
written complaint with the Registration Agency with whom the 
apprenticeship program is registered.
    (2) Time period for filing a complaint. Generally, a complaint must 
be filed within 300 days of the alleged discrimination or specified 
failure to follow the equal opportunity standards. However, for good 
cause shown, the Registration Agency may extend the filing time. The 
time period for filing is for the administrative convenience of the 
Registration Agency and does not create a defense for the respondent.
    (3) Contents of the complaint. Each complaint must be made in 
writing and must contain the following information:
    (i) The complainant's name, address and telephone number, or other 
means for contacting the complainant;
    (ii) The identity of the respondent (the individual or entity that 
the complainant alleges is responsible for the discrimination);
    (iii) A short description of the events that the complainant 
believes were discriminatory, including but not limited to when the 
events took place, what occurred, and why complainant believes the 
actions were discriminatory (for example, because of his or her race, 
color, religion, sex, sexual orientation, national origin, age (40 or 
older), genetic information, or disability).
    (iv) The complainant's signature or the signature of the 
complainant's authorized representative.
    (b) Requirements of sponsors. Sponsors must provide written notice 
to all applicants for apprenticeship and all apprentices of their right 
to file a discrimination complaint and the procedures for doing so. The 
notice must include the address, phone number, and other contact 
information for the Registration Agency that will receive and 
investigate complaints filed under this part. The notice must be 
provided in the application for apprenticeship and must also be 
displayed in a prominent, publicly available location where all 
apprentices will see the notice. The notice must contain the following 
specific wording:

Your Right to Equal Opportunity

    It is against the law for a sponsor of an apprenticeship program 
registered for Federal purposes to discriminate against an 
apprenticeship applicant or apprentice based on race, color, 
religion, national origin, sex, sexual orientation, age (40 years or 
older), genetic information, or disability. The sponsor must ensure 
equal opportunity with regard to all terms, conditions, and 
privileges associated with apprenticeship. If you think that you 
have been subjected to discrimination, you may file a complaint 
within 300 days from the date of the alleged discrimination or 
failure to follow the equal opportunity standards with [INSERT NAME 
OF REGISTRATION AGENCY, ADDRESS, PHONE NUMBER, EMAIL ADDRESS, AND 
CONTACT NAME OF INDIVIDUAL AT THE REGISTRATION AGENCY WHO IS 
RESPONSIBLE FOR RECEIVING COMPLAINTS]. You may also be able to file 
complaints directly with the EEOC, or State fair employment 
practices agency. If those offices have jurisdiction over the 
sponsor/employer, their contact information is listed below. [INSERT 
CONTACT INFORMATION FOR EEOC AS PROVIDED ON ``EEO IS THE LAW 
POSTER,'' AND CONTACT INFORMATION FOR STATE FEPA AS PROVIDED ON 
STATE FEPA POSTER, AS APPLICABLE]
    Each complaint filed must be made in writing and include the 
following information:
    1. Complainant's name, address and telephone number, or other 
means for contacting the complainant;
    2. The identity of the respondent (i.e. the name, address, and 
telephone number of the individual or entity that the complainant 
alleges is responsible for the discrimination);
    3. A short description of the events that the complainant 
believes were discriminatory, including but not limited to when the 
events took place, what occurred, and why the complainant believes 
the actions were discriminatory (for example, because of his/her 
race, color, religion, sex, sexual orientation, national origin, age 
(40 or older), genetic information, or disability);
    4. The complainant's signature or the signature of the 
complainant's authorized representative.

    (c) Requirements of the Registration Agency--(1) Conduct 
investigations. The investigation of a complaint filed under this part 
will be undertaken by the Registration Agency, and will proceed as 
expeditiously as possible. In conducting complaint investigations, the 
Registration Agency must:
    (i) Provide written notice to the complainant acknowledging receipt 
of the complaint;
    (ii) Contact the complainant, if the complaint form is incomplete, 
to obtain full information necessary to initiate an investigation;
    (iii) Initiate an investigation upon receiving a complete 
complaint;
    (iv) Complete a thorough investigation of the allegations of the 
complaint and develop a complete case record that must contain, but is 
not limited to, the name, address, and telephone number of each person 
interviewed, the interview statements, copies, transcripts, or 
summaries (where appropriate) of pertinent documents, and a narrative 
report of the investigation with references to exhibits and other 
evidence which relate to the alleged violations; and

[[Page 92118]]

    (v) Provide written notification of the Registration Agency's 
findings to both the respondent and the complainant.
    (2) Seek compliance. Where a report of findings from a complaint 
investigation indicates a violation of the nondiscrimination 
requirements of this part, the Registration Agency should attempt to 
resolve the matter quickly at the Registration Agency level whenever 
appropriate. Where a complaint of discrimination cannot be resolved at 
the Registration Agency level to the satisfaction of the complainant, 
the Registration Agency must refer the complaint to other Federal, 
State or local EEO agencies, as appropriate.
    (3) Referrals to other EEO agencies. The Registration Agency, at 
its discretion, may choose to refer a complaint immediately upon its 
receipt or any time thereafter to:
    (i) The EEOC;
    (ii) The United States Attorney General;
    (iii) The Department's OFCCP; or
    (iv) For an SAA, to its Fair Employment Practices Agency.
    (4) Alternative complaint procedures. An SAA may adopt a complaint 
review procedure differing in detail from that given in this section 
provided it is submitted for review to and receives approval by the 
Administrator.


Sec.  30.15  Enforcement actions.

    Where the Registration Agency, as a result of a compliance review, 
complaint investigation, or other reason, determines that the sponsor 
is not operating its apprenticeship program in accordance with this 
part, the Registration Agency must notify the sponsor in writing of the 
specific violation(s) identified and may:
    (a) Offer the sponsor technical assistance to promote compliance 
with this part.
    (b) Suspend the sponsor's right to register new apprentices if the 
sponsor fails to implement a compliance action plan to correct the 
specific violation(s) identified within 30 business days from the date 
the sponsor is so notified of the violation(s), or, if the sponsor 
submits a written response to the findings of noncompliance, fails to 
implement a compliance action plan within 30 days of receiving the 
Registration Agency's notice upholding its initial noncompliance 
findings. If the sponsor has not implemented a compliance action plan 
within 30 business days of notification of suspension, the Registration 
Agency may institute proceedings to deregister the program in 
accordance with the deregistration proceedings set forth in part 29 of 
this chapter, or if the Registration Agency does not institute such 
proceedings within 45 days of the start of the suspension, the 
suspension is lifted.
    (c) Take any other action authorized by law. These other actions 
may include, but are not limited to:
    (1) Referral to the EEOC;
    (2) Referral to an appropriate State fair employment practice 
agency; or
    (3) Referral to the Department's OFCCP.


Sec.  30.16  Reinstatement of program registration.

    An apprenticeship program that has been deregistered pursuant to 
this part may be reinstated by the Registration Agency upon 
presentation of adequate evidence that the apprenticeship program is 
operating in accordance with this part.


Sec.  30.17  Intimidation and retaliation prohibited.

    (a) A participant in an apprenticeship program may not be 
intimidated, threatened, coerced, retaliated against, or discriminated 
against because the individual has:
    (1) Filed a complaint alleging a violation of this part;
    (2) Opposed a practice prohibited by the provisions of this part or 
any other Federal or State equal opportunity law;
    (3) Furnished information to, or assisted or participated in any 
manner, in any investigation, compliance review, proceeding, or hearing 
under this part or any Federal or State equal opportunity law; or
    (4) Otherwise exercised any rights and privileges under the 
provisions of this part.
    (b) Any sponsor that permits such intimidation or retaliation in 
its apprenticeship program, including by participating employers, and 
fails to take appropriate steps to prevent such activity will be 
subject to enforcement action under Sec.  30.15.


Sec.  30.18  State apprenticeship agencies.

    (a) State plan. (1) Within 1 year of January 18, 2017, unless an 
extension for good cause is sought and granted by the Administrator, an 
SAA that seeks to obtain or maintain recognition under Sec.  29.13 of 
this title must submit to OA a State EEO plan that:
    (i) Includes, at a minimum, draft State apprenticeship authorizing 
language corresponding to the requirements of this part; and
    (ii) Requires all apprenticeship programs registered with the State 
for Federal purposes to comply with the requirements of the State's EEO 
plan within 180 days from the date that OA provides written approval of 
the State EEO plan submitted under this paragraph (a)(1).
    (2) Upon receipt of the State's EEO plan, OA will review the plan 
to determine if the plan conforms to this part. OA will:
    (i) Grant the SAA continued recognition during this review period;
    (ii) Provide technical assistance to facilitate conformity, and 
provide written notification of the areas of nonconformity, if any; and
    (iii) Upon successful completion of the review process, notify the 
SAA of OA's determination that the State's EEO plan conforms to this 
part.
    (3) If the State does not submit a revised State EEO plan that 
addresses identified non-conformities within 90 days from the date that 
OA provides the SAA with written notification of the areas of 
nonconformity, OA will begin the process set forth in Sec.  29.14 of 
this title to rescind recognition of the SAA.
    (4) An SAA that seeks to obtain or maintain recognition must obtain 
the Administrator's written concurrence in any proposed State EEO plan, 
as well as any subsequent modification to that plan, as provided in 
Sec.  29.13(b)(9) of this title.
    (b) Recordkeeping requirements. A recognized SAA must keep all 
records pertaining to program compliance reviews, complaint 
investigations, and any other records pertinent to a determination of 
compliance with this part. These records must be maintained for five 
years from the date of their creation.
    (c) Retention of authority. As provided in Sec.  29.13 of this 
chapter, OA retains the full authority to:
    (1) Conduct compliance reviews of all registered apprenticeship 
programs;
    (2) Conduct complaint investigations of any program sponsor to 
determine whether an apprenticeship program registered for Federal 
purposes is operating in accordance with this part;
    (3) Deregister for Federal purposes an apprenticeship program 
registered with a recognized SAA as provided in Sec. Sec.  29.8(b) and 
29.10 of this chapter; and
    (4) Refer any matter pertaining to paragraph (c)(1) or (2) of this 
section to the following:
    (i) The EEOC or the U.S. Attorney General with a recommendation for 
the institution of an enforcement action under title VII of the Civil 
Rights Act of 1964, as amended; the ADEA; GINA, or title I of the ADA;
    (ii) The Department's OFCCP with a recommendation for the 
institution of agency action under Executive Order 11246; or section 
503 of the Rehabilitation Act of 1973, as amended; or

[[Page 92119]]

    (iii) The U.S. Attorney General for other action as authorized by 
law.
    (d) Derecognition. A recognized SAA that fails to comply with the 
requirements of this section will be subject to derecognition 
proceedings, as provided in Sec.  29.14 of this chapter.


Sec.  30.19  Exemptions.

    Requests for exemption from these regulations, or any part thereof, 
must be made in writing to the Registration Agency and must contain a 
statement of reasons supporting the request. Exemptions may be granted 
for good cause by the Registration Agency. State Apprenticeship 
Agencies must receive approval to grant an exemption from the 
Administrator, prior to granting an exemption from these regulations.

[FR Doc. 2016-29910 Filed 12-16-16; 8:45 am]
BILLING CODE 4510-FR-P