Survey of Federal Laws and Regulations Mandating Affirmative Action Goals, Set-asides, or Other Preference Based on Race, Gender, or Ethnicity

Survey of Federal Laws and Regulations Mandating Affirmative Action Goals, Set-asides, or Other Preference Based on Race, Gender, or Ethnicity

Order Code RL32565
CRS Report for Congress
Received through the CRS Web
Survey of Federal Laws and Regulations
Mandating Affirmative Action Goals,
Set-asides, or Other Preference
Based on Race, Gender, or Ethnicity
September 7, 2004
Charles V. Dale
Legislative Attorney
American Law Division
Cassandra Foley
Paralegal Assistant
American Law Division
Congressional Research Service ˜ The Library of Congress

Survey of Federal Laws and Regulations Mandating
Affirmative Action Goals, Set-asides, or Other
Preference Based on Race, Gender, or Ethnicity
Summary
This report provides a broad, but by no means exhaustive, survey of federal
statutes and regulations that specifically refer to race, gender, or ethnicity as factors
to be considered in the administration of any federal program. Such measures may
include, but are not limited to, goals, timetables, set-asides, and quotas, as those
terms are generally (however imperfectly) understood. Based on several searches of
LEXIS/NEXIS and WESTLAW legal databases, and a variety of search strategies,
the compilation seeks to be as comprehensive as possible. With certain noted
exceptions, the report collectively describes those statutes, regulations, or executive
orders uncovered by our research which appear, in any manner, to prefer or consider
race, gender, or ethnicity as affirmative factors in federal employment, in the
allocation of federal contracts, or in granting any federal benefit to individuals or
institutions. Several laws and regulations directed to “socially and economically
disadvantaged” individuals and institutions are included because, as more fully
explained by the report, that term has been defined administratively and by statute to
presumptively apply to specific racial and ethnic minorities.

Contents
Federal Grant and Procurement Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Federal Acquisitions Regulations — General . . . . . . . . . . . . . . . . . . . . . . . . 5
Agriculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Banking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Commerce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Energy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
General Services Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Health and Human Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Housing and Urban Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Interior . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Labor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
National Aeronautics and Space Administration . . . . . . . . . . . . . . . . . . . . . 20
Small Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
State Department and Foreign Affairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Transportation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Veterans Affairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Equal Employment Opportunity Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Federal Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Survey of Federal Laws and Regulations
Mandating Affirmative Action Goals,
Set-asides, or Other Preference Based on
Race, Gender, or Ethnicity
The purpose of this report is to provide a broad, but by no means exhaustive,
survey of federal statutes and regulations that specifically refer to race, gender, or
ethnicity as factors to be considered in the administration of any federal program.
Such measures may include, but are not limited to, goals, timetables, set-asides, and
quotas, as those terms are generally (however imperfectly) understood. Based on
several searches of LEXIS/NEXIS and WESTLAW legal databases, and a variety
of search strategies, the compilation reflects our effort to be as comprehensive as
possible. Given the disparate policy objectives and wording of the various
provisions, however, some editorial judgment was called for, and the final product
may be viewed as over- or under-inclusive, depending on the reader’s perspective.
Nonetheless, included are any statute, regulation, or executive order uncovered by
our research which appears, in any manner, to prefer or consider race, gender, or
ethnicity as affirmative factors in federal employment, in the allocation of federal
contracts, or in granting any federal benefit to individuals or institutions. Several
laws and regulations directed to “socially and economically disadvantaged”
individuals and institutions are included because, as explained infra, that term has
been defined administratively and by statute to presumptively apply to specific racial
and ethnic minorities.
Also, note that certain categories of federal law were purposely not included.
First are various federal civil rights statutes, like Title VI of the 1964 Civil Rights
Act and related laws, that place nondiscrimination requirements upon recipients of
federal financial assistance without mandating racial, ethnic, or gender preferences
per se. Nor are regulations of the various federal departments or agencies under Title
VI included for the similar reason that, although they almost uniformly authorize
“affirmative action” by recipients to “overcome the effects of prior discrimination”
or otherwise, they do not explicitly define the obligation in terms of “goals” or “set-
asides,” or other forms of preference for minorities or women.1 Also beyond the
scope of this study are the remedy provisions in federal laws like Title VII of the
1964 Civil Rights Act2 or the Fair Housing Act,3 which authorize “affirmative” relief
by the courts in discrimination actions, and have been the basis for judicial
1 See e.g. 15 C.F.R. 15.3(b)(6)(2003)(Department of Agriculture Title VI regulations).
2 42 U.S.C. § 2000e-5(g).
3 42 U.S.C. § 3613.

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preference orders in certain circumstances, but do not explicitly direct the imposition
of “timetables, goals, set-asides, and quotas” on their face.
One final category of statutory “preference” excluded from consideration here
are federal employment opportunity and other programs operated by the Bureau of
Indian Affairs (BIA) for the benefit of American Indians living on or near a
reservation. Such programs have been upheld by the Supreme Court under the
Constitution based on the Government’s historical trust relationship with the Tribes
and the “unique legal status [of] Indians” in matters relating to tribal affairs “on or
near” the reservation.4 According to the accepted legal view, such “special
treatment” is sui generis and constitutes neither “racial discrimination” nor “even a
‘racial’ preference.” It is based instead on a “criterion reasonably designed to further
the cause of Indian self-government” which “as applied, is granted to Indians not as
a discrete racial group, but, rather, as members of quasi-sovereign tribal entities
whose lives and activities are governed by the BIA in a unique fashion.”5
By way of background, and to facilitate understanding operation of the
numerous listed federal laws and regulations, more extensive discussion is devoted
at various points of this report to the development of major “affirmative action”
programs in federal grant, contract, and employment law.
Federal Grant and Procurement Law
Federal efforts to increase minority and female participation in contracting,
federally assisted programs, and employment have been a major aspect of civil rights
enforcement for more than three decades. Congress and the Executive Branch have
crafted a wide range of federal laws and regulations authorizing, either directly or by
judicial or administrative interpretation, race or gender “conscious” strategies in
relation to jobs, housing, education, voting rights, and governmental contracting.
The historical model for federal laws and regulations establishing minority
participation “goals” may be found in Executive Orders which since the early 1960’s
have imposed affirmative minority hiring and employment requirements on federally
financed construction projects and in connection with other large federal contracts.
Presently, Executive Order 11246, as administered by the Office of Federal Contract
Compliance Programs (OFCCP), requires that all employers with federal contracts
in excess of $50,000.00 must file written affirmative action plans with the
government. These are to include minority and female hiring goals and timetables
to which the contractor must commit its “good faith” efforts. Similar affirmative
action measures relating to federal government employment were enacted as part of
the Equal Employment Opportunity Act Amendment of 19726 and the 1978 Civil
Service Reform Act.7
Morton v. Mancari, 417 U.S. 535, 548 (1973).
5 Id. at 554.
6 42 U.S.C. § 2000e-16(b).
7 5 U.S.C. § 7201.

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Affirmative action for minority entrepreneurs soon became a focus of efforts by
the Small Business Administration (SBA) and other federal agencies to assist
“socially and economically disadvantaged” small businesses under a variety of
federal programs. Increasingly, an “affirmative action” model, in the form of
participation “goals” or “set-asides” for members of racial or ethnic minorities, and
businesses owned or controlled by these or other “disadvantaged” persons, found
legislative expression in a wide range of federal programs.
The Small Business Act, as amended, provides the statutory prototype for a host
of federal programs to increase minority and female participation as contractors or
subcontractors on federally funded projects. First, the “Minority Small Business and
Capital Ownership Development,” or § 8(a) program authorizes the Small Business
Administration (SBA) to enter into all kinds of construction, supply, and service
contracts with other federal departments and agencies. The SBA acts as a prime
contractor and then “subcontracts” the performance of these contracts to small
business concerns owned and controlled by “socially and economically
disadvantaged” individuals, Indian Tribes or Hawaiian Native Organizations.8
Applicants for § 8(a) certification must demonstrate “socially disadvantaged”
status or that they “have been subjected to racial or ethnic prejudice or cultural bias
because of their identities as members of groups without regard to their individual
qualities.”9 The Small Business Administration “presumes,” absent contrary
evidence, that small businesses owned and operated by members of certain groups
— including Blacks, Hispanics, Native Americans, and Asian Pacific Americans —
are socially disadvantaged.10 Any individual not a member of one of these groups
must prove “social disadvantage” by a “preponderance” of evidence in order to
qualify for § 8(a) certification. The § 8(a) applicant must, in addition, show that
“economic disadvantage” has diminished its capital and credit opportunities, thereby
limiting its ability to compete with other firms in the open market.11
The “Minority Small Business Subcontracting Program” authorized by
§ 8(d) of the Small Business Act codified the presumption of disadvantaged status
for minority group members that applied by SBA regulation under the § 8(a)
program.12 Prime contractors on major federal contracts are obliged by § 8(d) to
maximize minority participation and to negotiate a “subcontracting plan” with the
procuring agency which includes “percentage goals” for utilization of small socially
815 U.S.C. § 637(a).
915 U.S.C. § 637(a)(5).
1013 CFR § 124.105(b).
11 The statute, 15 U.S.C. § 637(a)(6)(A), defines economic disadvantage in terms of:
socially disadvantaged individuals whose ability to compete in the free enterprise
system has been impaired due to diminished capital and credit opportunities as
compared to others who are not socially disadvantaged, and such diminished
opportunities have precluded or are likely to preclude such individuals from
successfully competing in the open market.
1215 U.S.C. § 637(d). See also 13 CFR § 124.106.

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and economically disadvantaged firms (SDBs). To implement this policy, a clause
required for inclusion in each such prime contract states that “[t]he contractors shall
presume that socially and economically disadvantaged individuals include Black
Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and
other minorities, or any other individual found to be disadvantaged by the
Administration pursuant to § 8(a). . .” Accordingly, SBA has discretion in
designating a firm or individual as socially and economically disadvantaged for
purposes of both the § 8(a) and § 8(d) programs in conformity with specified
criteria.13
These obligations, first codified in 1978 as an amendment to the SBA, were
augmented a decade later by the Business Opportunity Development Reform Act of
1988.14 Congress there directed the President to set annual, government-wide
procurement goals of at least 20% for small businesses and 5% for disadvantaged
businesses, as defined by the SBA. Simultaneously, federal agencies were required
to continue to adopt their own goals, compatible with the government-wide goals, in
an effort to create “maximum practicable opportunity” for small disadvantaged
businesses to sell their goods and services to the government. The goals may be
waived where not practicable due to unavailability of disadvantaged business
enterprises (DBEs) in the relevant area and other factors.15 While the statutory
definition of DBE includes a racial component, in terms of presumptive eligibility,
it is not restricted to racial minorities but also includes persons subjected to “ethnic
prejudice or cultural bias.”16 It also excludes businesses owned or controlled by
persons who, regardless of race, are “not truly socially and/or economically
disadvantaged.”17 Federal Acquisition Act amendments adopted in 1994 amended
the 5% minority procurement goal, and the minority subcontracting requirements in
§ 8(d), to specifically include “small business concerns owned and controlled by
women” in addition to “socially and economically disadvantaged individuals.”18
In addition, Congress has frequently adopted “set-asides” or other forms of
statutory preference for “socially and economically disadvantaged” firms and
individuals, following the definitions of the Small Business Act, or by designating
minority groups and women as part of specific grant or contract authorization
programs. Thus, targeted funding, in various forms, and minority or disadvantaged
business set-asides or preferences have been included in major authorization or
appropriation measures for agriculture, communications, defense, education, public
13
15 U.S.C. § 637(d). Criteria set forth in the regulations permit an administrative
determination of socially disadvantaged status to be predicated on “clear and convincing
evidence” that an applicant has “personally suffered” disadvantage of a “chronic and
substantial” nature as the result of any of a variety of causes, including “long term residence
in an environment isolated from the mainstream of American society,” with a negative
impact “on his or her entry into the business world.”13 C.F.R. § 124.105(c).
14
P.L. 100-656, § 502, 102 Stat. 3887, codified at 15 U.S.C. § 644(g)(1).
15
See e.g. 49 C.F.R. §§ 23.64(e), 23.65 (setting forth waiver criteria for the Department
of Transportation.
16
15 U.S.C. § 637(a)(5).
17See 49 C.F.R. Pt. 23, Subpt. D, App. C.
18
P.L. 103-355, 108 Stat. 3243, 3374, § 7106 (1994).

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works, transportation, foreign relations, energy and water development, banking,
scientific research and space exploration, and other purposes. Other federal laws
appear to authorize some consideration of race or gender to enhance the participation
of minorities and women in federal programs or employment but without directly
mandating preferential goals or set-asides.
The following statutes, regulations, and executive orders governing federal
contracts and grant programs are, to the extent possible, grouped according to agency
and subject matter.
Federal Acquisitions Regulations — General
Section 7102 of P.L. 103-355 (1994): The Federal Acquisition Streamlining
Act permits federal agency heads to adopt restricted competition and a 10% “price
evaluation preference” in favor of “socially and economically disadvantaged
individuals” to achieve government-wide and agency contracting goal requirements.
48 C.F.R. § 19.201 (2003): FAR “socioeconomic program” regulations state
general policy that SDB and women-owned business concerns “must have maximum
practicable opportunity to participate as subcontractors in the contracts awarded by
any executive agency, consistent with efficient contract performance. . . . The SDB
procurement mechanisms are a price evaluation adjustment for SDB concerns (see
Subpart 19l11), an evaluation factor or subfactor for participation of SDB concerns
(see 19.1202), and monetary subcontracting incentive clauses for SDB concerns (see
19.1203).” See also id. at § 19.304 (Disadvantaged business status).
48 C.F.R. § 19.704 (a)(1)(2003): FAR requirement that “[s]eparate percentage
goals for using . . . small disadvantaged business [and] women-owned small
business concerns as subcontractors” be included in small disadvantaged business
subcontracting plans.
48 C.F.R. § 19.705-4 (2003)): In evaluating the adequacy of SDB
subcontracting plans by bidders on federal prime contracts, contracting officers must
“evaluate the offeror’s past performance in awarding subcontracts for the same or
similar products or services to . . .small disadvantaged business [and] and small
women-owned business concerns.” See also § 19.705-1 (monetary incentives for
exceeding goals).
48 C.F.R. § 19-708 (c)(2) (2003): FAR subcontracting assistance program states
that “[v]arious approaches may be used in the development of small and small
disadvantaged business concerns subcontracting incentives. They can take many
forms, from a fully qualified schedule of payments based on actual subcontract
achievement to an award fee approach employing subjective evaluation criteria . . .
The incentive should not reward the contractor for results other than those that are
attributable to the contractor’s efforts under the incentive subcontracting program.”
48 C.F.R. § 19.1101-1103 (2003): Sets forth procedures for applying a “price
evaluation adjustment for small disadvantaged business concerns,” the effect of
which is to increase by a percentage factor to be determined by the Department of

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Commerce of bids by non-disadvantaged firms competing for federal acquisition contracts.
48 C.F.R. §§ 52.219-8, 52.219-9 (2003): Prescribe clauses for inclusion in
federal prime and subcontracts which require, inter alia, “[g]oal, expressed in terms
of percentages of total planned subcontracting dollars, for the use of . . . small
disadvantaged business [and] women-owned small business concerns as
subcontractors.”
Agriculture
7 U.S.C.S. § 2279: “The Secretary of Agriculture shall carry out an outreach
and technical assistance program to encourage and assist socially disadvantaged
farmers and ranchers in owning and operating farms and ranches” and participating
in agricultural programs.” Socially disadvantaged is “a group whose members have
been subjected to racial or ethnic prejudice because of their identity as members of
a group without regard to their individual qualities” ( § 2279(e)).
7 U.S.C.S. § 3154(c): The Secretary of Agriculture is authorized “to set aside
a portion of funds” appropriated for certain research on the production and marketing
of alcohols and industrial hydrocarbons for grants to colleges and universities to
achieve “the objective of full participation of minority groups.”
7 U.S.C.S. § 3241(a): The Secretary is authorized to make grants to “Hispanic-
serving institutions for the purpose of promoting and strengthening the ability of
Hispanic-serving institutions to carry out education, applied research, and related
community development programs.”
42 U.S.C.S. § 3020e-1: Assistant Secretary of Agriculture is authorized to award
grants to entities that establish pension counseling and information outreach
programs for “women, minorities, older individuals residing in rural areas and low
income retirees.”
7 C.F.R. § 225.17 (2004): Food service management companies participating
in the Summer Food Service Program must submit with appropriate state agency a
registration which is to include “a statement as to whether the organization is a
minority business enterprise” managed and controlled by “Blacks, Hispanics,
American Indians, Alaskan Natives, Oriental and Aleuts. . .”
7 C.F.R. § 246.13(g) (2004): Financial management system maintained by state
agencies participating in Special Supplemental Food Program for Women, Infants
and Children are “encouraged” to use minority- and women-owned banks.
7 C.F.R. § 272.4(b)(2004): Bilingual program information and certification, and
interpreters must be provided in certain low income areas with specified percentages
of non-English speaking minority households under Food Stamp and Food
Distribution Program.
7 C.F.R. § 1775.22 (2004): Recipients of certain rural utilities service grants for
technical assistance and training are “encouraged to use minority banks (a bank

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which is owned by at least 50 percent minority group members) for the deposit and
disbursement of funds.”
7 C.F.R. § l940.968(k)(3)(2004): States participating in certain rural economic
development programs are “encouraged to use minority banks (a bank which is
owned by at least 50 percent minority group members) for the deposit and
disbursement of funds.”
7 C.F.R. § 1942.17(p)(3)(iii) (2004): Applicants for certain FmHA community
facilities loans are “encouraged to use minority banks (a bank which is owned by at
least 50 percent minority group members) for the deposit and disbursement of funds.”
7 C.F.R. § 1944.526(a)(2)(i)(D) (2004): Preapplication process for Technical
and Supervisory Assistance Grant program considers in determining applicant’s
eligibility “the estimated number of low income and low income minority families
the applicant will assist in obtaining affordable adequate housing.”
7 C.F.R. § 1944.671(b) (2004): Equal Opportunity and outreach requirements
applicable to FmHA Housing Preservation Grants program state that “[a]s a measure
of compliance, the percentage of the individuals served by the HPG grantee should
be in proportion to the percentages of the population of the service area by
race/national origin.”
7 C.F.R. §§ 3015.13, 3016.21(h) (2004): “Consistent with the national goal of
expanding opportunities for minority business enterprises, recipients and
subrecipients” of federal financial assistance administered by the Department of
Agriculture “are encouraged to use minority and women-owned banks. Upon
request, awarding agencies will furnish a listing of minority and women-owned banks
to recipients.”
7 C.F.R. 3015 APPENDIX A (2004): OMB Circular A-128 (Audits of State
and Local Governments). “19. Small and Minority Audit Firms. Small audit firms
and audit firms owned and controlled by socially and economically disadvantaged
individuals shall have the maximum practicable opportunity to participate in
contracts awarded to fulfill the requirements of this circular.”
7 C.F.R. §§ 3403.1, 3403.2 (2004): USDA regulation implementing small
business innovation grants program has as one of its goals to “foster and encourage
the participation of socially and economically disadvantaged small business concerns
and women owned small business concerns.” For this purpose, minority groups
specifically covered include “Black Americans, Hispanic Americans, Native
Americans, Asian Pacific Americans, or Subcontinent Asian Americans,” or any
others designated by the SBA pursuant to § 8(a).

48 C.F.R. § 419.201 (2003): States USDA policy to provide “small,
disadvantaged, minority, and women-owned businesses” with a “fair portion” of
opportunities to contract and subcontract. Specifically, agency coordinators shall
“identify” and “solicit[]” such businesses, set annually “aggressive minority and
women-owned business goals,” and require written plans of contractors “for the

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utilization of small and small disadvantaged businesses as subcontractors.” Id. at §
419.201-71.
48 C.F.R. § 422.804-2 (2003): Affirmative action program provision relating
to the Department of Agriculture which states that “each contracting office awarding
nonexempt construction contracts maintains a current listing of covered geographical
areas subject to affirmative action requirements specifying goals for minorities and
women in covered construction.”
Banking
12 U.S.C.S. § 1441a(r-w): Provides for various incentives, including
“preference points” on proposals and minority capital assistance programs, to
preserve and expand bank ownership by minorities and women; authorizes
establishment of Resolution Trust Corporation guidelines to achieve parity in
distribution of RTC contracts, and “reasonable goals” for subcontracting, to minority
and women-owned businesses and firms; and provides a “[m]inority preference in
acquisition of institutions in predominantly minority neighborhoods.”19
12 U.S.C.S. § 1823(f)(12): Authorizes Federal Deposit Insurance Corporation
(FDIC) approval of minority-controlled bank acquisitions by minority-controlled
holding companies without regard to asset size.
12 U.S.C.S. § 1833e: The Federal Deposit Insurance Corporation, the
Comptroller of the Currency, the Director of the Office of Thrift Supervision, the
Federal Housing Finance Board, the Oversight Board of the Resolution Trust
Corporation shall each prescribe regulations “to establish and oversee a minority
outreach program within each such agency to ensure inclusion ... of minorities and
women.”
12 U.S.C.S. § 2219c: Requires that “all institutions of the Farm Credit System
with more than 20 employees shall establish and maintain an affirmative action
program plan that applies the affirmative action standards otherwise applied to
contractors of the Federal Government.”
12 U.S.C.S. § 2907: Any donation or sale on favorable terms of bank branch
in minority neighborhood to minority or women-owned depository institution shall
be a factor in determining the seller or donor institution’s compliance with the
Community Reinvestment Act.
12 U.S.C.S. § 4520: The Federal National Mortgage Association and Federal
Home Loan Mortgage Corporation shall establish a minority outreach program to
ensure the inclusion of minorities and women in their contractual transactions.
12 C.F.R. § 4.63 (2003): Establishes Contracting Outreach Program for the
Office of Comptroller of the Currency to “ensure that minority and women-owned
19
As amended by §3(a) of the Resolution Trust Completion Act, P.L. 103-204, 107 Stat.
2369, 2375 (1993).

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businesses have the opportunity to participate, to the maximum extent possible, in
contracts awarded by the OCC.” “Minority means any African American, Native
American. . ., Hispanic American, Asian-Pacific American, or Subcontinent-Asian
American.” Id. at § 462(b).
12 C.F.R. Part 361, §§ 361.2, 361.6 (2004): Federal Deposit Insurance
Corporation “Minority and Women Outreach Program” states “policy of the FDIC
that minorities and women, businesses owned by them have the maximum
practicable opportunity to participate in [FDIC] contracts” and requires each
contracting office to make quarterly submissions including “at a minimum, statistical
information on contract awards and solicitations by designated demographic
categories.” For this purpose “minority means Black Americans, Native Americans,
Hispanic Americans, Asian Pacific Americans, or other group designated by SBA.
See 13 C.F.R. § 124.103 (2004).
12 C.F.R. §§ 517.5, 517.7 (2004): The Minority, Women, and Individuals with
Disabilities Outreach Program of the Office of Thrift Supervision (OTS) defines
“[o]utreach activities” to include “identification and registration of minority-,
women-owned (small and large) businesses” and “[m]onitoring proposed purchases
to assure that OTS contracting staff understand and actively promote the outreach
program.” Contract award guidelines state that “[t]he OTS Outreach Program
Advocate shall work to facilitate the maximum participation of minority and women-
owned. . .businesses. . .in the OTS procurement of goods and services.”
Commerce
15 U.S.C.S. § 278g-5: “The Director of the National Institute of Standards and
Technology may work with industry, trade associations, professional societies, and
others to raise awareness in the United States, including awareness by businesses that
are majority owned by women, minorities, or both, of enterprise integration activities
in the United States and aboard, including by the convening of conferences”.
15 U.S.C.S. § 7404: “The Director of the National Science Foundation shall
establish a program to award grants to institutions (including minority serving
institutions) of higher education to establish or improve undergraduate and master’s
degree programs in computer and network security, to increase the number of
students, including the number of students from groups historically underrepresented
in these fields...”
Executive Order 11625 (1971): Directs the Secretary of Commerce “[w]ith the
participation of other Federal departments and agencies. . .[t]o develop
comprehensive plans and specific program goals for the minority enterprise program;
establish regular performance monitoring and reporting systems to assure that goals
are being achieved; and evaluate the impact of Federal support in achieving the
objectives established by the order.” See also Executive Order 12138 (Women-
owned Business Enterprise Program).
Executive Order 13339 (2004): Directs the Secretary of Commerce to establish
a Commission on Asian Americans and Pacific Islanders to develop, monitor, and
coordinate executive branch efforts to improve economic and community

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development of Asian American and Pacific Islander businesses. The Commission
terminates in 2006, unless renewed by the President.
15 C.F.R. § 24.21(h) (2004): Grantees and subgrantees of certain grants and
cooperative agreements to state and local government “are encouraged to use
minority banks (a bank which is owned at least 50 percent by minority group
members).”
15 C.F.R. § 917.11(d) (2004): A “factor considered” in the approval of
proposals under the Sea Grant Matched Funding Program “will be the potential of
the proposed program to stimulate interest in marine related careers among those
individuals; for example, minorities, women, and the handicapped whose previous
background or training might not have generated such an interest.”
15 C.F.R. § 2301.5 (2004): The National Telecommunications and Information
Administration of the Department of Commerce, in administering the Public
Telecommunications Facilities Program, “will give special consideration to
applications that foster ownership and control of, operation of, and participation in
public telecommunication entities by minorities and women.” See also id. at §
2301.17(b)(6).
48 C.F.R. § 1319.7003(a) (2003): Directs contracting officers of the Commerce
Department to “provide assistance to prime contractors to identify potential women-
owned small businesses. Such assistance is intended to aid prime contractors in
placing a fair proportion of subcontracts with women-owned businesses.”
Communications
47 U.S.C.S. § 309(i)(3)(A): “The [Federal Communications] Commission shall
establish rules and procedures to ensure that, in the administration of any system of
random selection. . .used for granting licenses or construction permits for any media
of mass communications, significant preferences will be granted to applicants or
groups of applicants, the grant to which of the license or permit would increase the
diversification of ownership of the media of mass communications. To further
diversify the ownership of media of mass communications, an additional significant
preference shall be granted to any applicant controlled by a member or members of
a minority group.” For this purpose, “minority group” includes “Blacks, Hispanics,
American Indians, Alaskan Natives, Asians, and Pacific Islanders.” Id at §
309(i)(4)(A).
47 U.S.C.S. § 309(j)(4)(D): In radio licensing proceedings, the Federal
Communications Commission is directed to prescribe regulations to “ensure that
small businesses, rural telephone companies, and businesses owned by members of
minority groups and women are given the opportunity to participate in the provision
of spectrum-based services, and, for such purposes, consider the use of tax
certificates, bidding preferences, and other procedures.”
47 U.S.C.S. § 396(a)(6): The Corporation for Public Broadcasting is directed
to “encourage the development of programming ...that addresses the needs of
unserved and underserved audiences, particularly children and minorities.”

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47 C.F.R. § 76.977(a),(b),(e) (2003): Minority and educational programming
used in lieu of deregulated commercial leased access capacity. “A cable operator
required by this section to designate channel capacity for commercial use pursuant
to 47 U.S.C. 532 may use any such channel capacity for the provision of
programming from a qualified minority programming source. . .whether or not such
source is affiliated with cable operator.” “Qualified minority programming source”
means a source “that devotes substantially all of its programming to coverage of
minority viewpoints, or to programming directed at members of minority groups, and
which is over 50 percent minority-owned.” “Minority” includes “Blacks, Hispanics,
American Indians, Alaskan Natives, Asians, and Pacific Islanders.”
68 F.C.C. 2d 381, 411-412 (1978). FCC policy awards a quality enhancement
credit for minority ownership and participation in station management in the
comparative licensing process. When faced with mutually exclusive applications for
the same broadcast channel, the FCC initiates a proceeding to compare the merits of
the competing applicants based on specific factors including diversification of control
of mass media communications, full time participation in station management by
owners, proposed program service, past broadcast record, efficient use of frequency,
and character of the applicant. Under the FCC’s preference policy, ownership and
active participation in station management by members of a minority group are
considered a plus to be weighed in with the other comparative factors.
68 F.C.C. 2d 983 (1978): FCC “Distress Sale” Policy. Under this policy,
existing licensees in jeopardy of having their licenses revoked or whose licenses have
been designated for a renewal hearing are given the option of selling the license to
a minority-owned or controlled firm for up to seventy-five percent of fair market
value. The minority-assignee must meet the basic qualifications necessary to hold
a license under FCC regulations and must be approved by the FCC before the transfer
is consummated.
Defense
10 U.S.C.S. § 2191: The Secretary shall take appropriate action to encourage
applications for the National Defense Science and Engineering Graduate Fellowships
from persons who are member of groups (minority groups, women, and disabled
persons) which historically have been underrepresented in science and technology
fields.
10 U.S.C. S. § 2193: The Secretary shall give priority to awarding grants for
higher education in science and mathematics “in a manner likely to stimulate the
interest of women and members of minority groups in pursuing scientific and
engineering careers. The Secretary may consider the financial need of applicants in
making awards...”
10 U.S.C.S. § 2194: Defense laboratories shall ensure priority consideration to
historically Black colleges and universities and other minority institutions in entering
into education partnership agreements.
10 U.S.C.S. § 2196(j)(8): Selection criteria for manufacturing engineering grant
program established by the Secretary of Defense require proposal by applicant “to

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achieve a significant level of participation by women, members of minority groups,
and individuals with disabilities through active recruitment of students from among
such persons.”
10 U.S.C.S. § 2323: Establishes a goal of awarding five percent of the total
value of Department of Defense, Coast Guard, and the National Aeronautics and
Space Administration contracts and subcontracts to socially and economically
disadvantaged individuals, historically black colleges and universities, and minority
institutions which includes Hispanic-serving institutions. This section is applicable
to the Department of Defense during fiscal years 1987 through 2006. This section
is applicable to the Coast Guard and the National Aeronautics and Scientific
Administration during fiscal years 1995 through 2006.
10 U.S.C.S. § 2904(b)(2): The Strategic Environmental Research and
Development Program Scientific Advisory Board shall consist of “persons who are
eminent in the fields of basic sciences, engineering, ocean and environmental
sciences, education, research management, international and security affairs, health
physics, health sciences, or social sciences with due regard given to the equitable
representation of scientists and engineers who are women or who represent a
minority group.”
50 U.S.C.A. § 403: Requires the Director of Central Intelligence to carry out and
report to Congress on a three year pilot project to test and evaluate alternative,
innovative methods to promote equality of intelligence community employment
opportunities for women, minorities, and individuals with diverse ethnic and cultural
backgrounds, skills, language proficiency, and expertise.
P.L. 108-106, 117 Stat. 1234, § 2217 (2003): “Requires activities carried out
by the U.S. with respect to civilian governance of Afghanistan and Iraq to include
advice from women’s organizations, increase access of financial resources and
assistance to women, and military and police force training to women.
32 C.F.R. § 33.21(h) (2003): Department of Defense (DOD) Uniform
Administrative Requirements for Grants and Cooperative Agreements to State and
Local Governments “encourage” DOD grantees and subgrantees to use minority
banks at least 50% owned by minority group members.
48 C.F.R. § 205.207(d)(iv) (2003): States that “[f]or acquisition being
considered for historically black college and university and minority institution set-
aside,” the proposed contract “is being considered as a 100 percent set-aside for
historically black colleges and universities (HBCUs) and minority institutions (MIs),
as defined by the clause at §252.226-7000 of the Defense Acquisition Regulation
Supplement.”
48 C.F.R. Part 219, § 219.000 (2003): DOD regulation implements “goal” in
10 U.S.C. 2323 to “[a]ward five percent of contract and subcontract dollars to small
disadvantaged business (SDB) concerns, historically black colleges and universities
(HBCUs), and minority institutions (MIs).” Specific requirements include data
collection and reporting (§ 219.202-5); eligibility criteria for program participation
(§ 219.703); subcontracting plan goals for SDB concerns and institutions (§

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219.704); reviewing the subcontracting plan (§ 219.705-4); solicitation provisions
and contract clauses (§ 219.708); and price evaluation adjustments for small
disadvantaged business concerns as determined by the Commerce Department (§
19.1101). See also 48 C.F.R. § 19.1202 (evaluation factors or subfactors for
participation of SDB concerns); § 19.2003 (monetary incentives for subcontracting
with SDB concerns); and § 252.219-7004) (small business and small disadvantaged
business subcontracting plan on DOD contracts).
48 C.F.R. 236.602-1: “In considering equitable distribution of work among
firms . . . include historically black colleges and universities and minority
institutions; firms that have not had prior DOD contracts; and small disadvantaged
business concerns and joint ventures with small disadvantaged business participants
if . . . the acquisition is one in which use of a price evaluation adjustment is currently
authorized.”
48 C.F.R. Chapter 2 APPENDIX I (2003): Pilot Mentor-Protege Program is to
“provide incentives to major DOD contractors, performing under at least one active
approved subcontracting plan negotiated with DOD or other Federal agencies, to
assist small disadvantaged businesses (SDBs) in enhancing their capabilities to
satisfy DOD and other contract and subcontract requirements.”
Education
20 U.S.C.S. § 1063b: Authorizes Education grants to specified postgraduate
institutions “determined by the Secretary [of Education] to be making substantial
contributions to the legal, medical, dental, veterinary, or other graduate education
opportunities in mathematics, engineering, or the physical or natural sciences for
Black Americans.”
20 U.S.C.S. §§ 1070a-12; 1070a-13; 1070a-14; 1070-15; 1070-16: Authorizes
Education grants under the Federal Trio Programs for various educational programs
and services provided to individuals who are “underrepresented, disadvantaged,
and/or students of limited English proficiency.”
20 U.S.C.S. § 3916: Fifteen percent of National Science Foundation funds
available for science and engineering education is to be allocated to faculty exchange
and other programs involving higher educational institutions with “an enrollment
which includes a substantial percentage of students who are members of a minority
group, or who are economically or educationally disadvantaged and institutions
which demonstrate a commitment to meet the special educational needs of students
who are members of a minority group or are economically or educationally
disadvantaged.”
20 U.S.C.S. § 5205(d): No less than 10 percent of Eisenhower Exchange
Fellowship Program funds “shall be available only for participation by individuals
who are representative of United States minority populations.”
20 U.S.C.S. § 6301: The No Child Left Behind Act’s goal is to meet “the
educational needs of low-achieving children in our Nation’s highest poverty schools,
limited English proficient children, migratory children, children with disabilities,

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Indian children, neglected or delinquent children, and young children in need of
reading assistance; and closing the gaps between minority and nonminority students,
and between disadvantaged children and their more advantaged peers.
20 U.S.C.S. §6623(a)(4): Subgrants may be awarded to local educational
agencies that develop and implement “initiatives to promote retention of highly
qualified teachers and principals, particularly within elementary schools and
secondary schools with a high percentage of low-achieving students, including
programs that provide . . . financial incentives, to principals who have a record of
improving the academic achievement of all students, but particularly students from
racial and ethnic minority groups, and students with disabilities.”
20 U.S.C.S §6662(c)(10): The Secretary is authorized to award grants to
partnership ((§ 6661(b)(1)) activities of the engineering, mathematics, science
department of an institution of higher education and a high-need elementary and
secondary school which include “training mathematics and science teachers and
developing programs to encourage young women and other underrepresented
individuals in mathematics and science careers to pursue post secondary degrees in
majors leading to such careers.”
20 U.S.C.S. § 9105(b)(3): The President of the Museum and Library Services
Board shall in making appointments to the Board “give due regard to equitable
representation of women, minorities, and persons with disabilities who are involved
with museums and libraries.”
20 U.S.C.S. § 9579: Authorizes the Director of the Institute for Education
Sciences to establish fellowships in “institutions of higher education (which may
include . . . historically Black colleges and universities and other institutions of
higher education with large numbers of minority students) that support graduate and
postdoctoral study on site at the Institute or at the institution of higher education. .
. The Director shall ensure that women and minorities are actively recruited for
participation.”
42 U.S.C.S. § 1862d: At least 12 percent of amounts appropriated for the
Academic Research Facilities Modernization Program shall be reserved for
historically Black colleges and universities and other institutions which enroll a
substantial percentage of Black American, Hispanic American, or Native American
students.
34 C.F.R. § 84(h) (2003): Department of Education (ED) Uniform
Administrative Requirements for Grants and Cooperative Agreements to State and
Local Governments “encourage” ED grantees and subgrantees to use minority-
owned banks.
34 C.F.R. § 461.33(a)(2)(ii) (2003): “[P]articular emphasis” placed on training
“minority” adult educators as one aspect of adult education demonstration grant
program.
34 C.F.R. Part 607, § 607.3(b)(3) (2003): An institution of higher education
is eligible to receive a grant under the Strengthening Institutions Program even if it

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does not satisfy certain other generally applicable state authorization or accreditation
requirements if it “substantially increases the higher education opportunities for low-
income students who are also educationally disadvantaged, underrepresented in
postsecondary education, or minority students.”
34 C.F.R. Parts 608, 609 (2003): “The Strengthening Historically Black
Colleges and Universities Program [HBCU] provides grants to Historically Black
Colleges and Universities to assist these institutions in establishing and
strengthening their physical plants, academic resources and student services so that
they may continue to participate in fulfilling the goal of equality of educational
opportunity.”(§ 608.1).
34 C.F.R. § 637.1 (2003): “The Minority Science Improvement Program is
designed to effect long-range improvement in science education at predominantly
minority institutions and to increase the flow of underrepresented ethnic minorities,
particularly minority women, into scientific careers.”
Energy
42 U.S.C.S. § 7141(e): The Secretary of Energy “may provide financial
assistance in the form of loans to any minority business enterprise under such rules
as he shall prescribe to assist such enterprises in participating fully in research,
development, demonstration, and contract activities of the Department to the extent
he considers appropriate.”
42 U.S.C.S. § 13556: Provides that “[t]o the extent practicable, the head of each
agency shall provide that the obligation of not less than 10 percent of the total
combined amounts obligated for contracts and subcontracts by each agency” under
the Energy Policy Act of 1992 “shall be expended with” socially and economically
disadvantaged individuals or women, historically Black colleges or universities, or
college and universities with more than 20 percent Hispanic or Native American
enrollment.
10 C.F.R. § 600.7(a) (2004): “DOE encourages the participation in financial
assistance awards of small businesses, including those owned by socially and
economically disadvantaged individuals and women, of historically black colleges,
and of colleges and universities with substantial minority enrollments.”
10 C.F.R. Part 800 (2004): Sets forth DOE policies and procedures for the
award and administration of loans to minority business enterprizes. “The loans are
to defray a percentage of the costs of obtaining DOE contracts and other agreements,
including procurements, cooperative agreements, grants, loans, and loan guarantees.
. .” Id. at § 800.001. “Minority” refers to “[a]n individual who is a citizen of the
United States and who is a Negro, Puerto Rican, American Indian, Eskimo, Oriental,
or Aleut, or is a Spanish speaking individual of Spanish descent.. . .” Id. at § 800.3.
10 C.F.R. § 1040.101(b)(1),(2) (2004): Under DOE regulations prohibiting
discrimination in federally assisted programs, the agency is to select recipients for
compliance reviews based, among other factors, on “[t]he relative disparity between
the percentage of minorities, women, or handicapped persons, in the relevant labor

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market, and the percentage of minorities, women, or handicapped persons, employed
by the recipient” or “in the population receiving program benefits.”
Environment
P.L. 101-549, 104 Stat. 2399, 2708 (1990): “In providing for any research
relating to requirements of the amendments made by the Clean Air Act Amendments
of 1990 which uses funds of the Environmental Protection Agency [EPA], the
Administrator of the [EPA] shall, to the extent practicable, require that not less than
10 percent of total Federal funding for such research will be made available to
disadvantaged business concerns,” defined to mean any concern with 51% of the
stock owned by “Black Americans, Hispanic Americans, Native Americans, Asian
Americans, Women or Disabled Americans.”
40 C.F.R. § 1.25(d) 2003): EPA Office of Small and Disadvantaged Business
Utilization “develops and implements a program to provide maximum utilization of
women-owned business enterprises in all aspects of EPA contract work . . .” and
“develops programs to stimulate and improve involvement of small and minority
business enterprises.”
40 C.F.R. § 35.936-7 (2003): Grantees of EPA state and local assistance grants
“shall make positive efforts to use small business and minority owned business
sources of supplies and services. Such efforts should allow these sources the
maximum feasible opportunity to compete for subagreements to be performed using
Federal grant funds.” See also 40 C.F.R. Part 35 APPENDIX C-1 (14.)(consulting
engineering agreement).
40 C.F.R. § 35.3145(d) (2003): State Water Pollution Control Revolving Fund
requirement “for the participation of minority and women owned businesses
(MBE/WBEs) will apply to assistance in an amount equaling the grant. To attain
compliance with MBE/WBE requirements, the [regional administrator] will negotiate
an overall `fair share’ objective with the State for MBE\WBE participation on these
SRF funded activities. A fair share objective should be based on the amount of the
capitalization grant award or other State established goals.” See also 40 C.F.R. §
35.4066(g) (1994)(grants for technical assistance).
40 C.F.R. § 35.6580 (2003): Recipients under Cooperative Agreements and
Superfund State Contracts for Superfund Response Actions must “award a fair share
of contracts to small, minority, and women’s businesses,” as defined by “fair share
objectives” negotiated with the EPA for cooperative agreements entered each year.
General Services Administration
41 C.F.R. §§ 105-71.121(h) (2003): General Services Administration (GSA)
Uniform Administrative Requirements for Grants and Cooperative Agreements to
State and Local Governments “encourage” recipients to use minority-owned and
women-owned banks.

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41 C.F.R. § 105-72.504(b) (2003): All recipients of GSA grants and agreements
awarded to institutions of higher education, hospitals, and other non-profit
organizations are to establish written procurement procedures to provide for “positive
efforts. . .to utilize small businesses, minority-owned businesses, and women’s
business enterprises, whenever possible” and to ensure that such businesses “are
utilized to the fullest extent practicable.”
48 C.F.R. § 552.219-9 (2003): Small business subcontracting plan prescribed
for General Service Administration contracts requires “[g]oals, expressed in terms
of percentages of total planned subcontracting dollars” for the use of small
disadvantaged and women-owned business concerns as subcontractors.
Health and Human Services
42 U.S.C.S. § 3027(20): State plans for grant program on aging “shall provide
assurances that special efforts will be made to provide technical assistance to
minority providers of services.”
42 C.F.R. § 52c.2 (2003): Minority Biomedical Research Support Program
makes grants to higher educational institutions with 50 percent or other “significant
proportion” of ethnic minority enrollment.
42 C.F.R. § 62.57(h) (2003): Among factors considered in making certain State
loan repayment grants to State applicants is “[t]he extent to which special
consideration will be extended to medically underserved areas with large minority
populations.”
42 C.F.R. § 64a.105(d)(2) (2003): “Preferred service” for purposes of obligated
service requirement for mental health traineeships includes service in any public or
private nonprofit entity serving 50 percent or more specified racial or ethnic
minorities.
45 C.F.R §§ 74.22(j), 92.21(h), 602.21(h) (2003): Department of Health and
Human Services (HHS) general administration requirements “encourage” grantees
and subgrantees to use minority banks at least 50% owned by minority group
members. Similar provisions may be found at 45 C.F.R. §§ 1050.13, 1157.21,
1174.21, 1183.21, and 1234.21.
48 C.F.R. § 319.705-4(d)(i)(ii) (2003): HHS small disadvantaged business
subcontracting regulation require contracting officer to insure that “[s]ubcontracting
goals for small and small disadvantaged business concerns are specifically set forth
in each contract or modification over the statutory thresholds. . .” See also §§
319.705-6, 319.706.
Housing and Urban Development
24 C.F.R. § 84.22(j) (2002): All recipients of Department of Housing and Urban
Development (HUD) grants and agreements awarded to institutions of higher
education, hospitals, and other non-profit organizations “shall be encouraged to use

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women-owned and minority-owned banks (a bank which is owned at least 50 percent
by women or minority group members).” Same provisions apply to use of lump-sum
grants under this program, 24 C.F.R. § 84.82(c)(2), a related HUD state and local
grant and cooperative agreement program, 24 C.F.R. § 85.21(h), and comprehensive
planning assistance grants at 24 C.F.R. § 600.410(k)(2).
24 C.F.R. § 84.44(b) (2002): All recipients of HUD grants and agreements
awarded to institutions of higher education, hospitals, and other non-profit
organizations are to establish written procurement procedures to provide for “positive
efforts . . .to utilize small businesses, minority-owned businesses, and women’s
business enterprises, whenever possible” and to ensure that such businesses “are
utilized to the fullest extent practicable.” Same provisions apply to procurement
standards used by recipients for the procurement of supplies, equipment, real
property and other services with federal funds. 24 C.F.R. § 84.84(e)(2)(i).
24 C.F.R. § 92.351 (2002): HUD affordable housing program requires all
participating jurisdictions “to establish and oversee a minority outreach program”
insuring “maximum” possible inclusion of women and minorities, and firms or
entities owned by them, in contracts for procurement of property or services.
48 C.F.R. § 2426.101 (2003): States the policy of the Department of Housing
and Urban Development “to foster and promote Minority Business Enterprise
(MBE) participation in its procurement program, to the extent permitted by law and
consistent with its primary mission.” For this purpose, “minority” includes members
of any group designated as “socially disadvantaged” by the SBA under the § 8(a).
See also 48 C.F.R. § 2452.219-70 (Small Business and Small Disadvantaged
Business Subcontracting Plan to include percentage goals).
Interior
16 U.S.C.S. § 1445c: The Secretary of the Department of Interior shall establish
and administer through the National Ocean Service the Dr. Nancy Foster Scholarship
Program to provide graduate education scholarships in oceanography, marine biology
or maritime archeology particularly to women and members of minority groups.
16 U.S.C.S. § 461, 117 Stat. 2874, P.L. 108-192 (2003): Authorizes the
Secretary to enter into agreements with public or private entities to provide public
education of African-American heritage in the Shaw area of the District of Columbia,
restore the Carter G. Woodson property, and use for administration purposes.
25 C.F.R. § 276.3(c) (2003): Uniform administrative requirements for grants
by the Bureau of Indian Affairs “encourage” grantees to use minority banks.
43 C.F.R §§ 12.61(h), 12.922(j) (2003): Department of Interior Uniform
Administrative Requirements for Grants and Cooperative Agreements to State and
Local Governments “encourage” grantees and subgrantees to use minority banks at
least 50% owned by minority group members.
43 C.F.R. § 12.944(b) (2003): Department of Interior procurement requirements
provide that “[p]ositive efforts shall be made by recipients [of federal procurement

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awards] to use small businesses, minority-owned firms, and women’s business
enterprises, whenever possible,” including “contracting with consortiums [of such
entities] when a contract is too large for one of these firms to handle individually.”
43 C.F.R. § 27.6 (2003): Affirmative action plan requirements for recipient of
financial assistance from the Department of Interior include “specific goals and
specific timetables to which its efforts will be directed, to correct all deficiencies and
thus to increase materially the participation of minorities and women in all aspects
of its operation.”
43 C.F.R. § 34.8 (2003): Grantees or contractors engaged on the Alaska Natural
Gas Pipeline must establish “overall goals and timetables for the employment of
minorities and women and the utilization of [enterprises owned by them as
contractors] in the construction and operation” of the pipeline project.
48 C.F.R. § 1419.901 (2003): Department of Interior socioeconomic program
regulations state that “[a]nnual goals for contract awards to women-owned businesses
shall be established as prescribed in 1419.202-70.”
Justice
P.L. 108-238 (2004): Directs the Attorney General to make a grant to the Great
Blacks in Wax Museum, Inc. to be used only for carrying out programs relating to
civil rights and juvenile justice.
31 U.S.C. § 6701(f): Not less than 10 percent of the amount paid from the Local
Government Fiscal Assistance Fund created by the Violent Crime Control Act shall
be expended on contracts or subcontracts with socially and economically
disadvantaged and women-owned small businesses, historically Black colleges and
universities, and higher educational institutions with more than 20 percent Hispanic
or Native-American student enrollment.
28 C.F.R. § 0.18a(b) (2003): Provides that Director of the Office of Small and
Disadvantaged Business Utilization within the Department of Justice shall
“[e]stablish Department goals for the participation by small businesses, including
small businesses owned and controlled by socially and economically disadvantaged
individuals, in Department procurement contracts.”
28 C.F.R. § 42.206 (c)(1) (2003): Recipients of Criminal Justice Improvement
Act funds shall be selected for post-award compliance reviews in part on the basis
of “[t]he relative disparity between the percentage of minorities, or women, in the
relevant labor market, and the percentage of minorities, or women, employed by the
recipient.”
28 C.F.R. § 66.21(h) (2003): Uniform requirements by the Justice Department
for administration of state and local grants and cooperative agreements “encourage”
grantees and subgrantees to use minority banks at least 50 percent owned by minority
groups.

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Labor
20 C.F.R. § 627.430(g) (2003): Recipients and subrecipients of Job Training
Partnership Act funds are “encouraged to use minority-owned banks (a bank which
is owned at least 50 percent by minority group members).”
20 C.F.R. § 653.111 (a), (b)(3) (2003): State agencies participating in the
administration of Services for Migrant and Seasonal Farmworkers, under the United
States Employment Service, are to develop affirmative action plans which contain
“a comparison between the characteristics of the staff and the workforce and
determine if the composition of the local office staff(s) is representative of the racial
and ethnic characteristics of the workforce in the local office service area(s).” “On
a statewide basis, staff representative of the racial and ethnic characteristics in the
workforce shall be distributed in substantially the same proportion among (1) all ‘job
groups’. . .and (2) all offices in the plan(s).”
29 C.F.R. §§ 89.52(d), 89.72(d), 95.22(j), 97.21(h), 1470.21(h) (2002):
Administrative requirements for Department of Labor (DOL) Project Grants to State
and Local Governments, higher educational institutions, and other programs,
“encourage” grantees to use minority banks.
29 C.F.R. § 95.44(b) (2002): All recipients of DOL grants and agreements
awarded to institutions of higher education, hospitals, and other non-profit
organizations are to establish written procurement procedures to provide for “positive
efforts. . .to utilize small businesses, minority-owned businesses, and women’s
business enterprises, whenever possible” and to ensure that such businesses “are
utilized to the fullest extent practicable.”
48 C.F.R. Part 2919, § 1919.202-70 (2004): Small disadvantaged business
program regulations of the Department of Labor require “Heads of Contracting
Activities [to] develop annual goals for each category of small business and small
disadvantaged business utilization programs, which shall include projected
acquisition awards to small businesses, minority businesses, 8(a) concerns, women-
owned businesses, and HBCU.”
National Aeronautics and Space Administration
42 U.S.C.S. § 2473b: NASA Administrator is required to annually establish a
goal of at least eight percent of the total value of prime and subcontracts awarded in
support of authorized programs to be made to small disadvantaged businesses or
“organizations owned or controlled by socially and economically disadvantaged
individuals,” as defined by § 8(a) of the Small Business Act, “including Historically
Black Colleges and Universities and minority educational institutions. . .”
48 C.F.R. § 1819.705-470 (2003): Authorizes “[a]cquisition specific
subcontracting goals” for small disadvantaged and women-owned business concerns,
among other specified categories of small business entity.

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48 C.F.R. § 1819.7000 (2003): NASA Administrator must insure that “[a]t least
8% of Federal funding for prime and subcontracts awarded in support of authorized
programs, including the space station by the time operational status is obtained, be
made available to small disadvantaged business concerns, Historically Black
Colleges and Universities, minority institutions, and women-owned small business
concerns.” See also, id. at § 1852.219-76 (prescribed clause for NASA contracts
incorporating 8 percent goal for “small business concerns or other organizations
owned or controlled by socially and economically disadvantaged individuals
(including women), Historically Black Colleges and Universities, and minority
educational institutions”).
Small Business
Executive Order 13170 (2000): “All agencies within the executive branch with
procurement authority are required to take necessary steps, as permitted by law, to
increase contracting between the Federal Government and Small Disadvantaged
Business Program and Minority Business Enterprises.
41 U.S.C.S. § 417a: “Each Federal agency shall report to the Office of Federal
Procurement Policy the number of qualified HUBZone small business concerns
owned by, the number of small businesses owned and controlled by women and the
number of small business concerns owned and controlled by socially and
economically disadvantaged businesses, by gender, that are first time recipients of
contracts from such agency.” See also 15 U.S.C.S. 694(c)(SBA indemnification of
surety against loss on bond issued to socially and economically disadvantaged or
women-owned small business concern).
13 C.F.R. § 124.103(b): Groups presumed to be “socially disadvantaged” for
purposes SDB certification and SBA’s § 8(a) program: “Black Americans; Hispanic
Americans; Native Americans (American Indians, Eskimos, Aleuts, or Native
Hawaiians); Asian Pacific Americans (persons with origins from Burma, Thailand,
Malaysia, Indonesia, Singapore, Brunei, Japan, China (including Hong Kong),
Taiwan, Laos, Cambodia (Kampuchea), Vietnam, Korea, The Philippines, U.S. Trust
Territory of the Pacific Islands (Republic of Palau), Republic of the Marshall Islands,
Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands,
Guam Samoa, Macao, Fiji, Tonga, Kiribati, Tuvala or Nauru); Subcontinent Asian
Americans (persons with origins from India, Pakistan, Bangladesh, Sri Lanka,
Bhutan, the Maldive Islands, or Nepal)” and members of other groups as designated
the SBA from time to time.
13 C.F.R. § 115.31(2) (2004): The Small Business Administration (SBA)
Surety Bond Guarantee program indemnifies sureties for 90 percent of losses
incurred on certain bonds “issued on behalf of a small concern owned and controlled
by socially and economically disadvantaged individuals,” including “Black
Americans, Hispanic Americans, Native Americans, Asian Pacific Americans,
Subcontinent Asian Americans, and other minorities or any other individual found
to be disadvantaged by SBA. . .”
13 C.F.R. § 124.1001(b) (2004): “Only small firms that are owned or controlled
by socially and economically disadvantaged individuals are eligible tp participate in

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Federal SDB price evaluation adjustment, evaluation factor or subfactor, monetary
subcontracting incentive, or set-aside programs, or SBA’s section 8(d) subcontracting
program.” See also id. at § 124.1015 (“What is the effect of receiving an SDB
certification?”).
13 C.F.R. 125.2 (d)(2)(i) (2004): SBA’s “contract bundling” regulation
requires that all federal agencies “[s]tructure procurement requirements to facilitate
competition by and among . . . small business concerns owned and controlled by . .
. socially and economically disadvantaged individuals and small business concerns
owned and controlled by women.”
13 C.F.R. § 143.21(h) (2004): Grantees and subgrantees under SBA program
of grants and cooperative agreements with state and local governments are
“encouraged to use minority banks (a bank which is owned at least 50 percent by
minority group members).”
State Department and Foreign Affairs
22 U.S.C.S. § 2665a: “Priority consideration” for Foreign Service fellowships
is given to the faculty of institutions of higher learning who teach in programs in
international affairs which serve significant numbers of students who are from
cultural and ethnic groups which are underrepresented in the Foreign Service.”
22 U.S.C.S. § 4823: “The Secretary of State shall actively recruit women and
member of minority groups” for special agent positions.
22 U.S.C.S. § 4852(d): Not less than 10 percent of the amount appropriated for
diplomatic construction or designed projects each fiscal year shall be allocated to the
extent practicable for contracts with American minority contractors.
22 U.S.C.S. § 4864(e): Not less than 10 percent of the amount of funds
obligated for local guard contracts for Foreign Service buildings shall be allocated
to the extent practicable for contracts with minority small business contractors.
22 U.S.C.S. § 4901(e): The Secretary shall actively recruit women and members
of minority groups to receive fellowships for temporary service at United States
missions abroad.
P.L. 103-306, 108 Stat. 1608, 1646 § 555 (1994): Provides for a 10 percent set-
aside of the aggregate amount of certain appropriations to the Agency for
International Development — the Development Assistance Fund, Population,
Development Assistance, and the Development Fund for Africa — for socially and
economically disadvantaged U.S. businesses and private voluntary organizations,
historically black colleges and universities, and higher educational institutions with
more than 40 percent Hispanic student enrollment.
Government procurement agreements. The United States has entered into
procurement obligations under the North American Free Trade Agreement (NAFTA)
(Chapter Ten) and the Uruguay Round Agreement on Government Procurement
under which the United States agrees, among other things, to accord national

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treatment to products, services, and suppliers of other parties with respect to
government contracts entered into by named agencies above certain threshold
amounts. In both the NAFTA and the Uruguay Round Agreement (as well as in
earlier trade agreements), the United States has taken a reservation stating that
agreement obligations will not apply to set asides on behalf of small and minority
businesses (NAFTA, Chapter 10, Annex 1001.2b, General Notes, Schedule of the
United States, Note 1; Uruguay Round Agreement on Government Procurement,
Annex of the United States, General Note 1).
22 C.F.R. § 145.44(b) (2004): All recipients of Department of State grants and
cooperative agreements awarded to institutions of higher education and other non-
profit organizations are to establish written procurement procedures to provide for
“positive efforts. . .to utilize small businesses, minority-owned businesses, and
women’s business enterprises, whenever possible” and to ensure that such businesses
“are utilized to the fullest extent practicable.” Same provisions apply pursuant to
uniform administrative requirements prescribed by 22 C.F.R. 5l8.44(b) (2004).
48 C.F.R. § 652.219-70 (2003): Clause in Department of State contracts
requiring disadvantaged and minority subcontracting goals. See also 48 C.F.R. §§
619.201(b), 619.708-70.
48 C.F.R. § 706.302-71 (2003): Agency for International Development (AID)
requirement that “[e]xcept to the extent otherwise determined by the Administrator,
not less than ten percent of amounts made available for development assistance and
for assistance for famine recovery and development in Africa shall be used only for
activities of disadvantaged enterprises.” “Disadvantaged enterprise” means concerns
owned and controlled by “socially and economically disadvantaged individuals,” as
defined by FAR (48 C.F.R. § 19001(b)) to be members of designated racial and
ethnic minority groups, “Historically Black Colleges and Universities,” and
“colleges and universities having a student body in which more than 40 percent of
the students are Hispanic American.” 48 C.F.R. § 726.7002.
48 C.F.R. Part 719 (2003): Socioeconomic Program policies of AID state that
“[w]here practicable and desirable, small business and minority goals will be
established” for procuring activities (id. at § 719.270(e)); and mandates that the AID
Office of Small Disadvantaged Business develop “a plan of operation designed to
increase the share of contracts awarded to small business concerns, including small
minority business enterprises” (id. at § 719.271-2(6)). Disadvantaged enterprises
include socially and economically disadvantaged concern, historically black colleges
and universities, and higher educational institutions with more than 40 percent
Hispanic student enrollments (id. at §§ 726.7002, 752.226-1,2).
Transportation
Transportation Equity Act for the 21st Century (TEA-21), P.L. 105-178, §
1101(b), 112 Stat. 107 (1998). The U.S. Department of Transportation (DOT)
established a minority and women’s business enterprise (DBE) program for its
highway, airport, and transit programs by regulation in 1980. The Surface
Transportation Assistance Act of 1982 contained the first statutory DBE provision
for federal highway and transit programs, requiring that at least 10 percent of the

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funds provided by the act be expended with small businesses owned and controlled
by socially and economically disadvantaged individuals, unless the Secretary of
Transportation determined otherwise. Nonminority women were not included as
socially and economically disadvantaged individuals. The Surface Transportation
and Relocation Assistance Act of 1987 continued and expanded the program to
include nonminority women, thereby allowing states to use contracts with minority
and women-owned businesses to meet their DBE goals. The Intermodal Surface
Transportation Efficiency of 1991 and, most recently, §1101(b) of TEA-21
reauthorized the program, continuing the combined 10 percent provision for
participation by minority-owned and nonminority women-owned DBEs.
49 U.S.C.S. § 47107(e)(1): Requires federally aided airport operators to insure
“to the maximum extent practicable” that at least 10% of contracts for consumer
services to the public be placed with “small business concerns owned and controlled
by a socially and economically disadvantaged individual. . .” The statute incorporates
the Small Business Act definition of that term “except that women are presumed to
be socially and economically disadvantaged.” (49 U.S.C.A. § 47113(a)(2)).
49 C.F.R. Part 26 (2003). In 1999, DOT substantially revised its regulations
for DBE participation in federally assisted contracting administered by the
department. Stricter eligibility requirements included a personal net worth cap of
$750,000 on owners of disadvantaged firms (§ 26.67(a)(2)), and the program’s goal-
setting process was overhauled to place greater emphasis on race-neutral measures
(e.g. outreach and technical assistance) to achieve a “level playing field” — that is,
the level of DBE participation that would be expected in the absence of
discrimination (§ 26.1). States and transit authorities, which formerly had to justify
goals lower than the statutory 10 percent,” now are required to base their DBE goals
on demonstrable evidence of the relative number of “ready, willing, and able” DBEs
available in local markets as compared to other qualified business entities (§ 26.45
(b)). Such evidence may be drawn from DBE directories and Census Bureau data,
bidders lists, disparity studies, or the goal of another recipient (§ 26.45 (c)). The
overall goal must then be adjusted to account for other factors affecting DBEs, such
as capacity to perform work on DOT-assisted contracts (§ 26.45(d)). States and
transit authorities must meet the maximum feasible portion of their overall DBE
goals using race-neutral measures not focused exclusively upon DBEs (§ 26.51).
While quotas are prohibited and set-asides are allowed only in the most extreme
cases of discrimination (§ 26.43), states and transit authorities must use contract
goals and other race conscious means to meet any otherwise unattainable portion of
their overall goals. But a recipient will not be punished for failure to attain its
overall goal provided that it can demonstrate “good faith efforts” (§ 26.53).
Recipients are required to submit their overall DBE participation goals, including the
methodology used to set goals and the projected use of race-neutal and race-
conscious measure, to DOT for approval on an annual basis.
14 C.F.R. § 152.409 (2004): Grantees under federal Airport Aid Program must
develop affirmative action plan comparing separately the percentage of minorities
and women in various categories of the employer’s workforce with the demographic
makeup of the contiguous counties and implement “goals and timetables designed

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to eliminate obstacles to equal opportunities for women and minorities in recruitment
and hiring.”
49 C.F.R. § 23.95 et seq. (2003): Minority business enterprise participation
standards under § 511(A)(17) of the Airport and Airway Improvement Act of 1982
provide that sponsors of airport improvement projects “shall establish an overrall
goal for the participation of DBE’s” as concessionaires and “[t]o the extent
practicable, shall seek to obtain DBE participation in all types of concession
activities.” “Where not prohibited by state or local law and determined. . .to be
necessary to meet DBE goals, procedures to implement DBE set-asides shall be
established. The DBE plan shall specify the concessions to be set-aside.” (§
23.95(c)). The term “disadvantaged business” means a small business concern
owned and controlled by “socially and economically disadvantaged individuals,” as
defined in SBA regulations to include Black Americans, Hispanic Americans, Native
Americans, Asian-Pacific Americans, or Subcontinent Asian Americans, and women.
There is a “rebuttable presumption” that member of these groups are socially and
economically disadvantaged. 49 C.F.R. §§ 23.89, 23.62.
49 C.F.R. § 265.13 (2003): Federal Railroad Administration regulations barring
discrimination in federally assisted programs require “where there are deficiencies
based on past practices, and with respect to future plans for hiring and promoting
employees or awarding contracts, the development of specific goals and timetables
for the prompt achievement and maintenance of full opportunities for minority
persons and MBEs with respect to programs, projects and activities subject to this
subpart.”
Veterans Affairs
38 U.S.C.S. § 7303: Authorizes the Veteran’s Administration to provide grants
to medical research programs that conduct and support clinical research of women
and minorities who are veterans. “The Secretary ... shall foster and encourage the
initiation and expansion of research relating to the health of veterans who are
women.”
38 C.F.R. § 43.21(h) (2003): Department of Veterans Affairs Uniform
Administrative Requirements for Grants and Cooperative Agreements to State and
Local Governments “encourage” grantees and subgrantees to use minority banks at
least 50% owned by minority group members.
48 C.F.R. § 819.202-5(c) (2003): Department of Veterans Affairs regulations
require “all acquisition activities [to] submit information and procurement preference
goals” for “minority direct business awards,” “women-owned business awards,” and
“[s]ubcontracts to be awarded to small disadvantaged business concerns.”
Other
36 C.F.R. Part 906 (2003): Affirmative action policy and procedures, including
goals and timetables for women and minorities, “to assure full minority participation

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in activities and benefits that result from implementation of the Pennsylvania Avenue
Plan — 1974.”
36 C.F.R. § 1207.21(h) (2003): National Archives and Records Administration
Uniform Administrative Requirements for Grants and Cooperative Agreements to
State and Local Governments “encourage” grantees and subgrantees to use minority
banks at least 50% owned by minority group members.
44 C.F.R §§ 13.21(h) (2003): Federal Emergency Management Agency
Uniform Administrative Requirements for Grants and Cooperative Agreements to
State and Local Governments “encourage” grantees and subgrantees to use minority
banks at least 50% owned by minority group members.
Equal Employment Opportunity Laws
The evolution of federal law and policy regarding affirmative action in
employment may be traced to a series of executive orders dating to the 1960’s which
prohibit discrimination and require affirmative action by contractors with the federal
government. The Office of Federal Contract Compliance Programs, an arm of the
U.S. Department of Labor, currently enforces the E.O. 11246, as amended, by means
of a regulatory program requiring larger federal contractors, those with procurement
or construction contracts in excess of $50,000, to make a “good faith effort” to attain
“goals and timetables” to remedy underutilization of minorities and women. Another
early Executive Order, No. 11478, was a precursor to the 1964 Civil Rights Act and
mandates affirmative action hiring and employment policies by all federal executive
departments and agencies.
Public and private employers with 15 or more employees are also subject to a
comprehensive code of equal employment opportunity regulation under Title VII of
the 1964 Civil Rights Act.20 Except as may be imposed by court order to remedy
“egregious” violations of the law, or by consent decree to settle pending claims,
however, there is no general statutory obligation on employers to adopt affirmative
action measures. The EEOC has issued guidelines to protect employers and unions
from charges of “reverse discrimination” when they voluntarily take action to correct
the effects of past discrimination.21 Federal departments and agencies, by contrast,
are required to periodically formulate affirmative action plans for their employees
and a “minority recruitment program” to eliminate minority “underrepresentation”
in specific federal job categories.
Section 717 of 1972 Amendments to Title VII of the 1964 Civil Rights Act
empowers the Equal Employment Opportunity Commission to enforce
nondiscrimination policy in federal employment by “necessary and appropriate”
20
42 U.S.C. 2000e et seq.
21
29 C.F.R. Part 1608 (the guidelines state the EEOC’s position that when employers
voluntarily undertake in good faith to remedy past discrimination by race- or gender-
conscious affirmative action means, the agency will not find them liable for reverse
discrimination).

CRS-27
rules, regulations, and orders and through “appropriate remedies, including
reinstatement or hiring of employees, with or without backpay.”22 Each federal
department and agency, in turn, is required to prepare annually a “national and
regional equal employment opportunity plan” for submission to the EEOC as part of
“an affirmative program of equal employment opportunity for all. . .employees and
applicants for employment.”23
Section 717 was reinforced in 1978 when Congress enacted major federal civil
service reforms including a mandate for immediate development of a “minority
recruitment program” designed to eliminate “underrepresentation” of minority groups
in specific federal job categories.24 The EEOC and Office of Personnel Management
have issued rules to guide implementation and monitoring of minority recruitment
programs by individual federal agencies. Among various other specified
requirements, each agency plan “must include annual specific determinations of
underrepresentation for each group and must be accompanied by quantifiable indices
by which progress toward eliminating underrepresentation can be measured.”25
In addition, the following statutes and regulations relate to employment policies
of the federal government or under federal grant and assistance programs:
5 U.S.C.S. §§ 4107, 5379: An agency’s selection of employees for
reimbursement or repayment of educational loans or training shall be “consistent with
the merit principles set forth in § 2301 and take into consideration the need to
maintain a balanced workforce in which women and members of racial and ethnic
minority groups are appropriately represented in Government service.”
5 U.S.C.S. § 4313(5): Performance appraisal in the Senior Executive Services
to take account of individuals’ “meeting affirmative action goals, achievement of
equal employment opportunity requirements, and compliance with merit principles.
. .”
5 U.S.C.S. § 7201: Establishes a “Minority Recruitment Program” for the
Executive Branch and directs each Executive agency, “to the maximum extent
possible,” to “conduct a continuing program for the recruitment of members of
minorities for positions in the agency. . .in a manner designed to eliminate
underrepresentation of minorities in the various categories of civil service
employment within the Federal service, with special efforts directed at recruiting in
minority communities, in educational institutions, and from other sources from which
minorities can be recruited.”
22 U.S.C.S. § 4141: Establishes the Foreign Service Internship Program “to
promote the Foreign Service as a viable and rewarding career opportunity for
qualified individuals who reflect the cultural and ethnic diversity of the United
States. . .”
22
42 U.S.C. § 2000e-16(b).
23
42 U.S.C. § 2000e-16(b)(1).
24
5 U.S.C. § 7201.
25
5 C.F.R. § 720.205(b).

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42 U.S.C.S. § 282(h): The Secretary of HHS, and the National Institutes of
Health, “shall, in conducting and supporting programs for research, research training,
recruitment, and other activities, provide for an increase in the number of women and
individuals from disadvantaged backgrounds (including racial and ethnic minorities)
in the fields of biomedical and behavioral research.”
45 U.S.C.S. §§ 797b, 1004: First right to hire of certain previously separated
or furloughed railroad employees subject to exceptions for vacancies covered by “(1)
an affirmative action plan, or a hiring plan designed to eliminate discrimination, that
is required by Federal or State statute, regulation, or Executive order, or by the order
of a Federal court or agency, or (2) a permissible voluntary affirmative action plan.”
Executive Order 11246: Prohibits employment discrimination because of race,
color, religion, sex, or national origin by nonexempt federal government contractors
and requires inclusion of an affirmative action clause in all covered federal contracts
for procurement of goods and services. Pursuant to Labor Department regulations,
larger federal contractors are required to adopt goals and timetables to correct
“underutilization” of minorities and women. See 41 C.F.R. Part 60 (discussed
infra).
Executive Order 11478: States the policy of the United States government “to
provide equal opportunity in Federal employment for all persons, to prohibit
discrimination because of race, color, religion, sex, national origin, handicap, or age,
and to promote the full realization of equal employment opportunity through a
continuing affirmative program in each executive agency and department.”
Executive Order 13116 (2000): Requires Federal agencies to examine services
and prepare a plan “to improve access to federally conducted and federally assisted
programs and activities for persons who, as a result of national origin, are limited in
their English proficiency.” (See also Executive Order 50123)
Executive Order 13171 (2000): The head of each executive department and
agency shall establish and maintain a program for the recruitment and career
development of Hispanics in Federal employment.
Federal Regulations
5 C.F.R. Parts 720, 720 APP. (2003): Affirmative Employment Programs of the
Office of Personnel Management and Guidelines for Development of A “Minority
Recruitment Program” to Implement 5 U.S.C. § 7201.
14 C.F.R. § 152.407, .409, .411 (2003): All grantees, sponsors, or planning
agencies, with 50 or more aviation employees who participate in projects which
receive federal airport aid funds are required to maintain “affirmative action” plans
containing “goal and timetables” derived from “[a] comparison. . .of the percent of
minorities and women in the employer’s present aviation workforce. . .with the
percent of minorities and women. . .in the total workforce” in the SMSA or
surrounding area.

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23 C.F.R. § 230.111 (2003): On-the-job training program rules for federally
assisted highway construction projects provide that “[t]he Washington Headquarters
shall establish and publish annually suggested minimum training goals. . .based on
the Federal-aid apportioned amounts and the minority population. A State will have
achieved its goal if the total number of training slot. . .equals or exceeds the State’s
suggested minimum annual goal.”
23 C.F.R. Part 230 APP. A (2003): State Highway Agency Equal Employment
Opportunity Programs. Affirmative action plans are to set “specific, measurable,
attainable hiring and promotion goals, with target dates, in each area of
underutilization” of women and minorities.
28 C.F.R 42.206 (2003): Recipients of federal financial assistance administered
by the Justice Department are selected for post-award compliance reviews, in part,
on the basis of “[t]he relative disparity between the percentage of minorities, or
women, in the relevant labor market, and the percentage of minorities, or women,
employed by the recipient. . .” See also id. at § 42.303 (Evaluation of employment
opportunities); § 42.304 (Written equal employment opportunity program).
29 C.F.R. §§ 30.3-30.8 (2003): Affirmative action requirements of the
Department of Labor (DOL) for registered state apprenticeship programs include
“goals and timetable for women and minorities.” “Compliance with these
requirements shall be determined by whether the sponsor has met its goals within its
timetables, or failing that, whether it had made good faith efforts to meet its goals
and timetables.”
32 C.F.R. Part 191, § 191.5(a)(6) (2002): DOD Civilian Equal Employment
Opportunity Program establishes affirmative action guidelines and procedures for all
DOD components and directs the Assistant Secretary of Defense to “[e]nsure that
realistic goals that provide for significant continuing increases in the percentages of
minorities, women, and people with disabilities in entry, middle, and higher grade
positions in all organizations and occupations are set and accomplished until the
overall DOD objective is met and sustained.”
34 C.F.R. Part 100 APPENDIX B, VIII C. (2003): Department of Education
guidelines for eliminating discrimination in vocational education programs provide
that “[w]henever the Office for Civil Rights finds that in light of the representation
of protected groups in the relevant labor market there is a significant
underrepresentation or overrepresentation of protected group persons on the staff of
a vocational education school or program, it will presume that the disproportion
results from unlawful discrimination. This presumption can be overcome by proof
that qualified persons of the particular race, color, national origin or sex, or that
qualified handicapped persons are not in fact available in the relevant labor market.”
40 C.F.R Part 8 (1994): Environmental Protection Agency (EPA) equal
employment opportunity and affirmative action compliance requirements issued
pursuant to E.O. 11246 as applied to EPA contracts and EPA assisted construction
contracts.

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41 C.F.R. Part 60 (1994): Sets forth the body of administrative rules issued by
the Office of Federal Contract Compliance Programs within the Department of Labor
to enforce the affirmative action requirements of E.O. 11246 on federal procurement
and construction contractors. All contractors and subcontractors with federal
contracts in excess of $10,000 are prohibited by the Executive Order from
discriminating and required to take affirmative action in the employer of minority
groups and women. Federal contractors and subcontractors with 50 or more
employees and government contracts of $50,000 or more must develop written
affirmative action compliance programs for each of their facilities. OFCCP rules
direct these larger contractors to conduct a “utilization analysis” of all major job
classifications and explain any underutilization of minorities and women by job
category when compared with the availability of qualified members of these groups
in the relevant labor area. Based on this analysis, the contractor’s affirmative action
plan must set forth appropriate goals and timetables to which the contractor must
direct its “good faith efforts” to correct deficiencies. In addition, OFCCP has
established nationwide hiring goals of 6.9 percent for women in construction, and
regional and local goals for minorities in construction, which are set out in an
appendix to the agency’s affirmative action in construction regulations. 41 C.F.R. 60-
4.
48 C.F.R. 22.804 (2003): Affirmative action program under Federal Acquisition
Regulations requires written affirmative action plans of federal nonconstruction
prime and subcontractors with 50 or more employees that comply with DOL
regulations to assure equal opportunity in employment to minorities and women.
48 C.F.R. 52.222-23, 52.222-27 (2003): Prescribes clause for inclusion in
federal contracts that requires “[g]oals for minority and female participation,
expressed in percentage terms for the Contractor’s aggregate workforce in each trade
on all construction work in the covered area” and “to make a good faith effort to
achieve each goal under the plan in each trade in which it has employees.”
48 C.F.R. 922.804-2 (2003): Department of Energy regulations implementing
the affirmative action plan requirements of E.O. 11246.