[Federal Register Volume 69, Number 60 (Monday, March 29, 2004)]
[Proposed Rules]
[Pages 16446-16450]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-6972]



[[Page 16445]]

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Part VII





Department of Labor





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Office of Federal Contract Compliance Programs



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41 CFR Part 60-1



Obligation to Solicit Race and Gender Data for Agency Enforcement 
Purposes; Proposed Rule

Federal Register / Vol. 69, No. 60 / Monday, March 29, 2004 / 
Proposed Rules

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DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs

41 CFR Part 60-1

RIN 1215-AB45


Obligation To Solicit Race and Gender Data for Agency Enforcement 
Purposes

AGENCY: Office of Federal Contract Compliance Programs, DOL.

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: The Office of Federal Contract Compliance Programs (OFCCP) has 
promulgated regulations requiring covered federal contractors to 
maintain certain employment records for OFCCP compliance monitoring and 
other enforcement purposes. These regulations were amended on November 
13, 2000, to require employers to be able to identify, where possible, 
the gender, race and ethnicity of each applicant for employment. OFCCP 
promulgated this regulatory requirement to govern OFCCP compliance 
monitoring and enforcement purposes (e.g., to allow OFCCP to verify EEO 
data), consistent with the Uniform Guidelines on Employee Selection 
Procedures.
    The Uniform Guidelines on Employee Selection Procedures were issued 
in 1978 by the Equal Employment Opportunity Commission, the Department 
of Labor, the Department of Justice, and the predecessor to the Office 
of Personnel Management (``UGESP agencies''). The Uniform Guidelines on 
Employee Selection Procedures require employers to keep certain kinds 
of information and detail methods for validating tests and selection 
procedures that are found to have a disparate impact.
    In 2000, the Office of Management and Budget instructed the Equal 
Employment Opportunity Commission to consult with the Department of 
Labor, the Department of Justice, and the Office of Personnel 
Management and ``evaluate the need for changes to the Questions and 
Answers accompanying the Uniform Guidelines necessitated by the growth 
of the Internet as a job search mechanism.''
    The UGESP agencies recently have promulgated interpretive 
guidelines in question and answer format to clarify how the Uniform 
Guidelines on Employee Selection Procedures apply in the context of the 
Internet and related technologies. The recent interpretive guidelines 
expressly contemplate that ``[e]ach agency may provide further 
information, as appropriate, through the issuance of additional 
guidance or regulations that will allow each agency to carry out its 
specific enforcement responsibilities.'' The rule proposed today would 
amend OFCCP recordkeeping requirements for OFCCP compliance monitoring 
and other enforcement purposes to conform to the new interpretive 
guidance promulgated by the UGESP agencies.

DATES: Submit written comments on or before May 28, 2004.

ADDRESSES: Comments should be submitted to Joseph DuBray, Jr., 
Director, Division of Policy, Planning and Program Development, OFCCP.
    Electronic mail is the preferred method for submittal of comments. 
Comments by electronic mail must be clearly identified as pertaining to 
the proposed amendment to 41 CFR Part 60-1, and sent to ofccp-
public@dol.gov.
    As a convenience to commenters, public comments transmitted by 
facsimile (FAX) machine will be accepted. The telephone number of the 
FAX receiver is (202) 693-1304. To assure access to the FAX equipment, 
only public comments of six or fewer pages will be accepted via FAX 
transmittal.
    Where necessary, hard copies of comments, clearly identified as 
pertaining to the proposed amendment to 41 CFR Part 60-1, may also be 
delivered to Joseph DuBray, Jr., Director, Division of Policy, Planning 
and Program Development, OFCCP, Room C-3325, 200 Constitution Avenue, 
NW., Washington, DC 20210. Because of delays in mail delivery, OFCCP 
suggests that commenters planning to submit comments via U.S. Mail 
place those comments in the mail well before the deadline by which 
comments must be received.
    Receipt of submissions will not be acknowledged, except that the 
sender may request confirmation of receipt by calling OFCCP at (202) 
693-0102 (voice), or (202) 693-1308 (TTY).

FOR FURTHER INFORMATION CONTACT: Joseph DuBray, Jr., Director, Division 
of Policy, Planning and Program Development, OFCCP, Room C-3325, 200 
Constitution Avenue, NW., Washington, DC 20210. Telephone (202) 693-
0102 (voice), or (202) 693-1308 (TTY). Copies of this proposed rule in 
alternative formats may be obtained by calling (202) 693-0102 (voice), 
or (202) 693-1308 (TTY). The alternative formats available are large 
print, electronic file on computer disk, and audiotape. The proposed 
rule is available on the Internet at http://www.dol.gov/esa.

SUPPLEMENTARY INFORMATION:

I. Introduction

    OFCCP requires covered federal contractors to obtain, where 
possible, gender, race and ethnicity data on applicants and employees. 
See 41 CFR 60-1.12(c). OFCCP requires this data collection activity for 
several purposes relating to contractors' administration of required 
affirmative action plans and OFCCP's role in monitoring compliance with 
OFCCP requirements. See 65 FR 68023 (November 13, 2000); 65 FR 26091 
(May 4, 2000). Contractors must supply this information to OFCCP upon 
request. See 41 CFR 60-1.12(c)(2).
    OFCCP regulations require covered contractors to develop 
affirmative action programs (AAPs). See 41 CFR 60-2.1 One component of 
an AAP is a ``job group analysis'' in which the contractor is required 
to group various jobs that are similar with respect to job content, pay 
and promotional opportunities. See 41 CFR 60-2.12. Contractors must 
collect gender, race and ethnicity data and keep track of such data as 
to applicants and hires by job title or AAP job group. Many contractors 
use ``applicant flow logs'' for this purpose. See OFCCP's Federal 
Contract Compliance Manual at Section 2H01(b). OFCCP regulations 
require contractors to conduct self-analyses of their hiring practices 
to ensure against unlawful discrimination. See 41 CFR 60-2.17(b)(2).
    OFCCP ``selects'' contractors for compliance audits based on 
statistical analyses of gender, race and ethnicity data contractors 
submit to OFCCP. Since the mid-1980s, OFCCP has used the Equal 
Employment Data System (EEDS), which analyzes data contractors submit 
on EEO-1 reports, to identify contractor-establishments for audits. In 
regulations adopted on November 13, 2000, OFCCP implemented an Equal 
Opportunity (EO) Survey that requires contractors to submit gender, 
race and ethnicity data for applicants and hires by EEO-1 job category 
or AAP job group. See 41 CFR 60-2.18. One of the purposes of the EO 
Survey is to collect data that OFCCP could use to select contractors' 
establishments for compliance audits. 65 FR 26100 (May 4, 2000). (An 
extensive study is underway regarding the validity of the EO Survey.) 
OFCCP has resources to conduct approximately 1,500 on-site compliance 
audits annually. This constitutes less than two percent of the universe 
of establishments operated by federal supply and service contractors 
within OFCCP's jurisdiction. Because of these factors, OFCCP must make 
accurate decisions about which workplaces to investigate, at peril of 
misdirecting

[[Page 16447]]

agency investigation resources. In general, OFCCP seeks to maximize the 
likelihood that agency investigation resources are committed to 
workplaces where systemic employment discrimination exists and to 
minimize commitment of resources to workplaces where such systemic 
discrimination is absent.
    OFCCP initiates a compliance audit of a contractor's establishment 
by sending the contractor a ``scheduling letter.'' OFCCP's Federal 
Contract Compliance Manual at Section 2B03 and Figure 2-2. The 
scheduling letter asks the contractor to provide, among other things, 
gender, race and ethnicity data on applicants and hires, by AAP job 
group or job title. Id. OFCCP determines whether to conduct an on-site 
audit of a contractor's workplace based in part on statistical analysis 
of applicants and hires information contractors submit to OFCCP.
    Although the Department of Labor is a signatory to the Uniform 
Guidelines on Employee Selection Procedures, OFCCP regulations did not 
expressly require contractors to maintain and submit to OFCCP 
information about the gender, race and ethnicity of applicants and 
employees, prior to the November 13, 2000 amendments. See 65 FR 26091 
[NPRM May 4, 2000]. The Uniform Guidelines on Employee Selection 
Procedures were issued in 1978 by the Equal Employment Opportunity 
Commission, the Department of Labor, the Department of Justice, and the 
predecessor to the Office of Personnel Management (``UGESP agencies''). 
In 2000, the Office of Management and Budget instructed the Equal 
Employment Opportunity Commission to consult with the Department of 
Labor, the Department of Justice, and the Office of Personnel 
Management and address the ``issue of how use of the Internet by 
employers to fill jobs affects employer recordkeeping obligations'' 
under the Uniform Guidelines on Employee Selection Procedures. See 
Notice of OMB Action, OMB No. 3046-0017 (July 31, 2000). In particular, 
the Office of Management and Budget instructed the agencies to 
``evaluate the need for changes to the Questions and Answers 
accompanying the Uniform Guidelines necessitated by the growth of the 
Internet as a job search mechanism.'' Id.
    The UGESP agencies recently issued a Notice in the Federal Register 
seeking comments under the Paperwork Reduction Act about the burdens 
and utility of interpretive guidance intended to clarify how the 
Uniform Guidelines on Employee Selection Procedures apply in the 
context of the Internet and related technologies. 69 FR 10152 (March 4, 
2004). The preamble to the new interpretive guidance discusses the need 
for clarification of UGESP obligations in the context of the Internet 
and related electronic technologies. See, especially, 69 FR 10154-
10155. The UGESP agencies expressly contemplate that ``[e]ach agency 
may provide further information, as appropriate, through the issuance 
of additional guidance or regulations that will allow each agency to 
carry out its specific enforcement responsibilities.'' 69 FR 10153. 
Because of OFCCP's unique use of applicant data for compliance 
monitoring and other enforcement purposes, OFCCP has determined that 
additional regulations are required to clarify how contractors must 
comply with OFCCP recordkeeping requirements. Therefore, the rule 
proposed today would amend OFCCP recordkeeping requirements for OFCCP 
compliance monitoring and other enforcement purposes, in light of this 
recent interpretive guidance issued by the UGESP agencies.

II. Analysis

    The rule proposed today would implement, for OFCCP compliance 
monitoring and other enforcement purposes, the new interpretive 
guidance promulgated by the UGESP agencies. The proposed rule would 
amend Sec.  60-1.3 to add a definition of ``Internet Applicant.'' The 
proposed rule would also amend Sec.  60-1.12 to require contractors to 
retain Internet submissions of interest and to collect gender, race, 
and ethnicity information from Internet Applicants.
    The proposed definition of ``Internet Applicant'' provides 
sufficient specificity for OFCCP to enforce this data collection 
requirement and for contractors to understand how to comply. Under the 
proposed definition, ``Internet Applicant'' involves four criteria: (1) 
The job seeker has submitted an expression of interest in employment 
through the Internet or related electronic technologies; (2) the 
employer considers the job seeker for employment in a particular open 
position; (3) the job seeker's expression of interest indicates the 
individual possesses the advertised, basic qualifications for the 
position; and, (4) the job seeker does not indicate that he or she is 
no longer interested in employment in the position for which the 
employer has considered the individual.
    The proposed definition provides that ``advertised, basic 
qualifications'' are qualifications that the employer advertises to 
potential applicants that they must possess in order to be considered 
for the position. The proposed definition further provides that 
``advertised, basic qualifications'' must be noncomparative features of 
a job seeker. Under this standard, the employer cannot compare the 
relative qualifications of job seekers to determine which candidates 
have the best qualifications. In addition, the ``advertised, basic 
qualifications'' must be objective. They cannot depend on the 
employer's subjective judgment. Rather, a third-party, unfamiliar with 
the employer's decision process, would be able to evaluate whether the 
job seeker possesses the qualification without more information about 
the employer's judgment. Lastly, the ``advertised, basic 
qualifications'' must be job-related. They must be relevant to 
performance of the job at hand and enable the employer to accomplish 
business-related goals.
    The proposed rule also would amend Sec.  60-1.12(a) to require 
contractors to retain records of all submissions of interest through 
the Internet or related electronic technologies. OFCCP requires these 
records to evaluate whether the contractor has complied with the 
definition of Internet Applicant.
    Section 60-1.12(c)(1)(ii) requires contractors to obtain 
information, where possible, on the gender, race, and ethnicity of 
applicants. The proposed rule would amend Sec.  60-1.12(c)(1)(ii) to 
incorporate the new category of ``Internet Applicant,'' as defined in 
the amendment to Sec.  60-1.3 and to distinguish between 
``applicants,'' i.e., submissions of interest that are not submitted 
through the Internet and related electronic technologies, and 
``Internet Applicants.''
    Finally, the proposed rule would delete Sec.  60-1.12(e), which 
provided that the requirements of Sec.  60-1.12 ``apply only to records 
made or kept on or after December 22, 1997.'' Because OFCCP requires 
employment records to be retained for two years, 41 CFR 60-1.12(a), 
this provision is now superfluous. Of course, the deletion of this 
provision does not affect a contractor's ongoing obligation to retain 
relevant employment records during the pendency of an OFCCP complaint 
investigation or compliance review.
    The new interpretive guidelines promulgated by the UGESP agencies 
apply only to the Internet and related technologies. Because OFCCP 
relies on applicant data to determine whether to conduct an on-site 
audit of a contractor's workplace, OFCCP is concerned that the data 
allow for meaningful analysis. The proposed rule creates differing 
standards for data collection for traditional applicants versus 
Internet Applicants for the same job. Accordingly, if an employer's

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recruitment processes for a particular job involve both electronic data 
technologies, such as the Internet, and traditional want ads and 
mailed, paper submissions, the proposed rule would treat these 
submissions differently for that particular job. We are unsure whether 
this dual standard will provide OFCCP with meaningful contractor data 
to assess in determining whether to commit agency resources into an 
investigation of a contractor's employment practices. Therefore, OFCCP 
expressly solicits comments on this issue.
    Under the proposed rule, the agency will rely on labor force 
statistics or other relevant data for enforcing E.O. 11246 with respect 
to recruitment processes that occur prior to collection of gender, race 
and ethnicity data. This approach is consistent with the longstanding 
approval of such statistics in hiring discrimination litigation and is 
especially appropriate because the proposed definition of ``Internet 
Applicant'' relates to ``advertised, basic qualifications.'' See, e.g., 
Griggs v. Duke Power Co., 401 U.S. 424, 430 n.6, 431 (1971) (relying on 
Census data about the general population to find that a high school 
degree requirement had a disparate impact on African-Americans); 
Dothard v. Rawlinson, 433 U.S. 321, 329-330 (1977) (``The application 
process itself might not adequately reflect the actual potential 
applicant pool, since otherwise qualified people might be discouraged 
from applying because of a self-recognized inability to meet the very 
standards challenged as being discriminatory.''); Int'l Brotherhood of 
Teamsters v. U.S., 431 U.S. 324, 341-343 (1977) (use of population 
statistics to prove hiring discrimination); see also, E.E.O.C. v. Joint 
Apprenticeship Committee of Joint Industry Bd. of Elec. Industry, 186 
F.3d 110, 119 (2d Cir. 1999) (General population and qualified labor 
market data ``often form the initial basis of a disparate impact claim, 
especially in cases such as this one in which the actual applicant pool 
might not reflect the potential applicant pool, due to a self-
recognized inability on the part of potential applicants to meet the 
very standards challenged as being discriminatory.'').
    Thus, OFCCP will compare the proportion of women and minorities in 
the contractor's relevant applicant pool with labor force statistics or 
other data on the percentage of women and minorities in the relevant 
labor force. If there is a significant difference between these 
figures, OFCCP will investigate further as to whether the contractor's 
recruitment and hiring practices conform with E.O. 11246 standards. 
OFCCP routinely utilizes labor force statistics in order to assess 
contractors' compliance with the requirement to develop an 
``availability analysis'' as part of their affirmative action programs. 
See 41 CFR 60-2.14. Specifically, OFCCP regulations require contractors 
to create an ``availability analysis,'' defined as ``an estimate of the 
number of qualified minorities or women available for employment in a 
given job group * * *'' See 41 CFR 60-2.14(a). The availability 
analysis is required to be based on ``the most current and discrete 
statistical information available.'' See 41 CFR 60-2.14(d). Among the 
most current and discrete data currently available is data derived from 
the 2000 U.S. Census, to which OFCCP has access for use in assessing 
contractors' compliance with these requirements.

III. Regulatory Procedures

Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
proposed rule would be a ``significant regulatory action'' as defined 
in section 3(f) of Executive Order 12866 (although not an economically 
significant regulatory action under the Order). Accordingly, OMB 
reviewed this proposed rule under the Order.

Regulatory Flexibility Act

    If promulgated in final, this Proposed Rule would help clarify 
applicant recordkeeping requirements for Federal contractors in the 
context of the Internet and related technologies. Therefore, the 
Proposed Rule neither increases nor decreases burdens. The Rule would 
benefit smaller businesses just as much as larger businesses, by 
helping employers to understand what their applicant recordkeeping 
obligations are with respect to the Internet. The Proposed Rule would 
not have a significant economic impact on a substantial number of small 
business entities. The head of OFCCP has certified to the Chief Counsel 
for Advocacy of the Small Business Administration to that effect. 
Therefore, under the Regulatory Flexibility Act, 5 U.S.C. 605(b), a 
regulatory flexibility analysis is not required.

Unfunded Mandates Reform

    For purposes of the Unfunded Mandates Reform Act of 1995, as well 
as EO 12875, Enhancing the Intergovernmental Partnership, the Rule 
proposed in this NPRM would not include any Federal mandate that might 
result in increased expenditures by State, local, and tribal 
governments, or increased expenditures by the private sector of more 
than $100 million in any one year.

Paperwork Reduction Act

    The paperwork burden associated with OFCCP's proposed rule is 
covered by OMB Number 3046-0017, Collection Title, ``Recordkeeping 
Requirements of the Uniform Guidelines on Employee Selection 
Procedures, 29 CFR Part 1607, 41 CFR Part 60-3, 28 CFR Part 50, 5 CFR 
Part 300.'' OFCCP repeats verbatim the Paperwork Reduction Act 
statement submitted by EEOC in support of the above-referenced 
collection:
    Type of Respondent: Businesses or other institutions; Federal 
government; State or local governments and farms.
    North American Industry Classification System (NAICS) Code: 
Multiple.
    Standard Industrial Classification Code (SIC): Multiple.
    Description of Affected Public: Any employer, government 
contractor, labor organization, or employment agency covered by the 
Federal equal employment opportunity laws.
    Respondents: 827,962 firms are included in the affected public, 
according to U.S. Census statistics.
    Responses: 827,962.
    Reporting Hours: 2,588,285.
    Number of Forms: None.
    Form Number: None.
    Frequency of Report: None.
    Abstract: The recordkeeping issues addressed by UGESP are used by 
respondents to assure that they are complying with Title VII and E.O. 
11246; by the federal agencies that enforce Title VII and/or E.O. 11246 
to investigate, conciliate and litigate charges of employment 
discrimination; and by complainants to establish violations of federal 
equal employment opportunity laws.
    Burden Statement: There are no reporting requirements associated 
with UGESP. The only paperwork burden derives from the recordkeeping. 
With respect to paperwork burden, the proposed additional Questions and 
Answers would present a solution to problems employers currently face 
in applying the Guidelines on Employee Selection Procedures in the 
context of the Internet and related technologies. Therefore, the 
proposed additional Questions and Answers would not involve an increase 
in paperwork burdens associated with attempts to apply existing 
guidelines to the context of the Internet and related technologies.
    Only employers covered under Title VII and E.O. 11246 are subject 
to UGESP. For the purpose of burden

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calculation, employers with 15 or more employees are counted. Based on 
examination of the latest available U.S. Census Bureau firm data, the 
number of firms in this category is approximately 827,962. According to 
figures based on statistics from the U.S. Census Bureau, the total 
number of employees employed by firms in this category is 115,886,025. 
Assuming one record per employee, this results in 115,886,025 records. 
Additionally, statistics from the Bureau of Labor Statistics indicate 
that the number of individuals, both employed and unemployed, actively 
seeking employment from all employers, total 15 million. Assuming that 
each of these individuals submits on average five applications, this 
results in 75 million potential records from a recordkeeping 
perspective. Therefore, the total number of records reflecting 
employees employed by firms and all job seekers is 190,886,025.
    From the private employer survey the Commission conducts, it 
determined that 80 percent of the private employers file their 
employment reports electronically. From this same survey the Commission 
also learned that when records are computerized, the burden hours for 
reporting, and thus for recordkeeping, are about one-fifth of the 
burden hours associated with non-computerized records. Further, the 
proposed additional Questions and Answers apply to the Internet and 
related electronic data processing technologies, which involves 
computerized recordkeeping.
    The proposed additional Questions and Answers would clarify how 
employers should address applicant recordkeeping in the context of the 
Internet and related technologies. In the absence of such 
clarification, employers would be faced with significant, additional 
paperwork burdens based on the rapid expansion of the Internet and 
related technologies for recruiting. The Commission is unaware of any 
systematic data to accurately quantify the burdens associated with how 
employers were attempting to address applicant recordkeeping in the 
Internet context prior to this clarification. The Commission will be in 
a better position to assess these issues after the additional Questions 
and Answers have been implemented. At this time, the Commission assumes 
that, with this clarification, the basis for the estimate of the cost 
per record has not changed since the initial burden calculations in 
1979. Inflation adjustments would derive a current cost per record 
(manual recordkeeping) of $0.56 and current cost per record 
(computerized recordkeeping) of $0.11.
    The number of burden hours can be obtained by dividing the total 
cost of recordkeeping by the hourly cost of labor needed to collect and 
compile such data. The current cost per hour of personnel for UGESP 
recordkeeping is $14.75/hr (hourly rate for personnel clerks from BLS 
compensation survey).

Computerized recordkeepers = (.80) x (190,886,025) x ($0.11) = 
$16,797,970.20
Manual recordkeepers = (.20) x (190,886,025) x ($0.56) = $21,379,234.80
Total recordkeeping cost = $38,177,205
[GRAPHIC] [TIFF OMITTED] TP29MR04.048

Executive Order 13132 (Federalism)

    OFCCP has reviewed this Proposed Rule in accordance with Executive 
Order 13132 regarding federalism, and has determined that the rule does 
not have ``federalism implications.'' OFCCP has concluded that the 
Proposed Rule would not increase any recordkeeping burdens currently 
imposed by UGESP on the States. Therefore, the rule does not ``have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government,'' and the 
requirements of section 6 of Executive Order 13132 do not apply to this 
rule.

Executive Order 13175 (Consultation and Coordination With Indian Tribal 
Governments)

    OFCCP certifies that this Proposed Rule does not impose substantial 
direct compliance costs on Indian tribal governments.

Request for Comments

    OFCCP invites comments about the NPRM from all interested parties.

List of Subjects in 41 CFR Part 60-1

    Affirmative action plans, Civil rights, Discrimination in 
employment, Employment, Labor.

    Signed at Washington, DC on March 24, 2004.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards Administration.
Charles E. James, Sr.,
Assistant Secretary for Federal Contract Compliance.

    Accordingly, part 60-1 of Title 41 of the Code of Federal 
Regulations is proposed to be amended as follows:

PART 60-1--Obligations of Contractors and Subcontractors

    1. The authority citation for part 60-1 continues to read as 
follows:

    Authority: Section 201, E.O. 11246, 30 FR 12319, 3 CFR, 1964-
1965 Comp., p. 399, as amended by E.O. 11375, 32 FR 14303, 3 CFR, 
1966-1970 Comp., p. 684, E.O. 12086, 43 FR 46501, 3 CFR, 1978 Comp., 
p. 230 and E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 258.

    2. In Sec.  60-1.3, a new definition is added below ``government 
contract'' and above ``minority group'' to read as follows:


Sec.  60-1.3  Definitions.

* * * * *

Internet Applicant.

    (1) Internet applicant means any individual who:
    (i) Submits an expression of interest in employment through the 
Internet or related electronic data technologies;
    (ii) The employer considers the individual for employment in a 
particular open position;
    (iii) The individual's expression of interest indicates the 
individual possesses the advertised, basic qualifications for the 
position; and,
    (iv) The individual does not indicate that he or she is no longer 
interested in employment in the position for which the employer has 
considered the individual.
    (2) For purposes of this definition, ``advertised, basic 
qualifications'' means qualifications that the employer advertises 
(e.g., posts a description of the job and necessary qualifications on 
its Web site) to potential applicants that they must possess in order 
to be considered for the position and that meet all of the following 
three conditions:
    (i) The qualifications must be noncomparative features of a job 
seeker. For example, a qualification of three

[[Page 16450]]

years' experience in a particular position is a noncomparative 
qualification; a qualification that an individual have one of the top 
five number of years' experience among a pool of job seekers is a 
comparative qualification.
    (ii) The qualifications must be objective; they do not depend on 
the employer's subjective judgment. For example, ``a Bachelor's degree 
in Accounting'' is objective, while ``a technical degree from a good 
school'' is not. One way to tell an advertised, basic qualification is 
objective is that a third-party, unfamiliar with the employer's 
operation, would be able to evaluate whether the job seeker possesses 
the qualification without more information about the employer's 
judgment.
    (iii) The qualifications must be job-related; in other words, they 
are relevant to performance of the job at hand and enable the employer 
to accomplish business-related goals.
* * * * *
    3. In Sec.  60-1.12, the third sentence in paragraph (a), and 
paragraph (c)(1)(ii), are revised to read as follows; paragraph (e) is 
removed in its entirety.


Sec.  60-1.12  Record retention.

    (a) General requirements. * * * Such records include, but are not 
necessarily limited to, records pertaining to hiring, assignment, 
promotion, demotion, transfer, lay off or termination, rates of pay or 
other terms of compensation, and selection for training or 
apprenticeship, and other records having to do with requests for 
reasonable accommodation, the results of any physical examination, job 
advertisements and postings, applications, resumes, and any and all 
employment submissions through the Internet or related electronic 
technologies, such as on-line resumes or resume databases (regardless 
of whether an individual qualifies as an Internet Applicant under 41 
CFR 60-1.3), tests and test results, and interview notes. * * *
* * * * *
    (c) * * *
    (1) * * *
    (ii) Where possible, the gender, race, and ethnicity of each 
applicant (i.e., submissions that are not through the Internet and 
related electronic technologies) and Internet Applicant as defined in 
41 CFR 60-1.3.
* * * * *
[FR Doc. 04-6972 Filed 3-25-04; 10:10 am]
BILLING CODE 4510-CM-P