Senator DIRKSEN. Of the Highway Act, and the Comptroller General took the same position, did he not? Secretary VOLPE. Yes, he did. Senator DIRKSEN. You had no choice then, unless you wanted to violate the law. Secretary VOLPE. I do not see how I had any choice, if I wanted to be in compliance with the law. Senator KENNEDY. Just on that point, did the Comptroller General take that same position or is that a Congressman or a Senator? Secretary VOLPE. No. The Comptroller General in a statement I can read to you. Secretary VOLPE. Indicated this same feeling. Senator KENNEDY. Would you express that? Have you found that counsel ? Secretary VOLPE. Yes. He did not put it in the same words as the Chairman of the Senate and House Committees. Senator KENNEDY. It is my understanding, Mr. Secretary, that he said that prequalification was all right, that some things had to be made more specific. That is about the essence. Secretary VOLPE. I will read one sentence from this which I think demonstrates their feeling: Instead of setting forth detailed and clearly-defined equal employment opportunity requirements, compliance with which could be determined even by an in dependent authority, solely by a comparison of such requirements in the prospective contractor's statements the guidelines incorporated in the records mentioned the requirements only in indefinite and variable terms which appeared to contemplate the application of the individual judgment by the reviewing person nel in subsequent negotiation with respective contractors. I did not want anything to be vague in the minds of the contractors. Senator KENNEDY. Is that the authority to say that he found that these were illegal? Secretary VOLPE. I did not say that the Comptroller General thought they were illegal. Senator KENNEDY. Who are you going to look to for guidance, the Comptroller General or to the expression of a chairman of a congressional committee? Secretary VOLPE. Mr. Chairman, the Comptroller General certainly indicated to us that he believed that this order was not clear, and should be made clear. I understand that to mean that I ought to do something about it, and when I have the chairmen and the banking minority members of the two committees from House and Senate tell me they believe it is illegal, and I have read it and I personally believe it is illegal, even though I am not a lawyer, I think I ought to pay some at tention to it. Senator KENNEDY. With that in mind, let us review some of the clarifications in the comparison. Are you suggesting that these provisions are as strong as the old provisions, in terms of achieving the end of equal employment opportunity? Secretary VOLPE. Mr. Chairman, I think they will be stronger. Senator KENNEDY. As I understand it, in the old order the contractor had to agree to accept the responsibility to "assure the subcontractor's compliance with the equal employment provisions of the subcon tractor." Under the new one all he has to do is "use his best efforts to assure subcontractor's compliance." Do you think that the new one is as strong as the previous one? Secretary VOLPE. Mr. Chairman, I have had a complete comparison made of the old order with the new order, and in every instance indicating where there was a difference between the old and the new order, and as I have reviewed that systematically all the way up and down the line, the fact is that in practically every instance, the new order is stronger than the old one. Senator KENNEDY. What about in that instance? Senator KENNEDY. What about in that instance? Secretary VOLPE. In that particular instance I would have to call upon Mr. Johnson to perhaps indicate the answer to it. Senator KENNEDY. We will come back to it. I will ask you to continue. Secretary VOLPE. All right. I want to clarify one point about which there has been some misunderstanding. The special provisions provide a method upon which the contractor or subcontractor may meet the affirmative action requirements for the particular project concerned. They do not constitute the totality of his equal employment obligations. The contractor still must abide by the equal employment clause required by Executive order and must take affirmative action on all his work regardless of whether it involves the particular contract or not. By defining what the contractor must do in construction work under the particular contract, we have taken a step toward enforcement of equal employment opportunity requirements without relieving the contractor from any requirements that he would otherwise have. Senator KENNEDY. Just on that point, Mr. Secretary, do the new regulations therefore apply to only the work force that is working on a particular project, or does it apply to the whole work force of that contractor? Secretary VOLPE. The combination of our order and the Executive order make it apply to all of his contracts. Senator KENNEDY. But the old order itself did, did it not? Senator KENNEDY. So the old order-this is very important nowthe old order applied to the total work force, and your new order applies only to the work force that is on a particular project, is that correct? Secretary VOLPE. Yes, that is correct, except that the coverage is broadened under this new order. Senator KENNEDY. But the Executive order covered all contracts under the old procedure, did it not? Secretary VOLPE. Yes, and so Senator KENNEDY. Just as it does under the new one? Secretary VOLPE. Yes, it does. Senator KENNEDY. So you really did not broaden it, did you? Secretary VOLPE. We broadened it in terms of the number of contracts and the value of contracts that would be covered. Senator KENNEDY. And your new one does extend to the whole work force? Secretary VOLPE. Yes, it does. The procedures Senator DIRKSEN. Mr. Secretary, this can come at the end of your statement, but I think I will ask the chairman now to include in the record a statement by Senator Randolph of West Virginia on March 24, 1969 to the Senate in reporting Senate Resolution 168 or 169, a "Resolution to print a report entitled 'Equal Employment Opportunity With Regard to the Federal-Aid Highway Prospects' as a Senate document." I noticed one pertinent paragraph there which I will read at this point: My discussions with the Secretary and the position taken by him as set forth in the Department of Transportation News release on March 18, 1969, have confirmed my understanding of his deep commitment to positive equal employment programs. I will put the rest of it in the record, Mr. Chairman, and also the release that was issued by the Department of Transportation dated March 18, 1969. Senator KENNEDY. At this point or at the end? Senator DIRKSEN. At the end. Secretary VOLPE. Mr. Chairman, I have submitted the testimony. So we can conclude here more rapidly, most of the last two or three pages I have here are a review of what we already talked about. Just one further point I would certainly like to make is that we did seek the approval of the Office of Federal Contract Compliance, both their counsel as well as their approval. Such procedures have been traditionally followed by the FHA in issuing orders affecting the highway program. The procedure is fully consistent with the Administrative Procedure Act which exempts from the requirements through formal rulemaking a matter relating to public property, loans, grants, benefits, or contracts. I believe the procedures we have used in preparing 7-2(1) were appropriate in view of the subject matter of the changes made by 7-2. These changes were basically changes in the procurement procedure for obtaining equal employment opportunity and not changes in the substance of those obligations. We did broaden the coverage of the order substantially. But I felt that this was so important and so unquestionably needed that I did not believe any formal rulemaking procedure would be necessary. Now I recognize that FHWA order 7-2(1) is not necessarily perfect. It is obviously subject to improvement. Anthing can be improved. However, while we consider possible improvement, and I invite your suggestions on this. I feel most strongly that we should have a basically sound interim policy. It is important we act now and not delay a good policy in the hopes that we may be able to develop a better one later. If and when a better policy emerges, we certainly will substitute it. Before I conclude I would like to call your attention to some of the other actions which I have taken during my previous tenure to assure equal opportunity not only in the area of highway construction, but on all activities of the Department of Transportation and indeed in other activities of the executive branch. I can assure you that the time and the attention which I and the top staff of the Department of Transportation have devoted to equal opportunity has been as great as the time devoted to any other single matter including the SST, urban mass transportation, and other matters. On February 13, less than a month after I took office, after getting my basic organizational structure set up, I was given at my request an in-depth briefing on all aspects of the Department's equal opportunity program. I have had staff meetings and individual meetings on equal opportunity and have established an ad hoc recruiting team in my immediate office to conduct a talent search for qualified minority candidates for policy level positions throughout the Department. Next Wednesday, April 2, I will preside over a meeting of top Washington and field officials of our Department. Involved will be the heads of each of the six operating administrations of DOT as well as our top field officials such as the regional directors of the FRA, the FHWA, and FAA and the district commanders of the U.S. Coast Guard. This conference will deal solely with the need for increased action to achieve positive equal opportunity results in all our programs, whether they involve aviation, railroad, urban transportation, waterway, or highway activities. Each administrator will be asked to give a report on the specific equal opportunity activities of his administration, and the results achieved since former Secretary Boyd's first conference on this topic early last October. I have taken organizational steps to achieve equal opportunity results. High level positions are being established within each administration to carry out equal opportunity programs. In the Highway Administration, for instance, a new position has been created reporting directly to the Administrator. This position has been given to a highly knowledgeable civil rights specialist, Alexander J. Gaither. As a matter of fact, this was one of the things that Mr. Mitchell recommended also, that these Equal Opportunity officers report directly to the Administrator. In addition, an Equal Opportunity officer is being designated in every one of FHWA's 50 division offices, located in every State of the Union. These Equal Opportunity officers will be responsible for enforcement of the special provisions which I have discussed today. Working with them will be FHWA's 400 area engineers throughout the country. These area engineers, during their monthly inspections of Federal-aid highway construction projects will pay special attention to the Equal Opportunity performance of contractors and subcon tractors. I believe that this will assure enforcement of our new opportunity provisions. The commitment to equal employment opportunity that we have in DOT is truly a Government-wide commitment. With the President's permission, on February 25, I addressed the Urban Affairs Council on the subject of equal opportunity in DOT using our experience as an example of how an agency can meet the equal employment opportunity problems which face our Government. On March 11, I recommended the establishment is a special subcommittee on equal opportunity to the President's Urban Affairs Council. I am informed that this recommendation has received tentative approval. I can assure you, Mr. Chairman and members of the committee, that this administration and the Department of Transportation, in particular, will work vigilantly toward the goal of equal employment opportunity for all. Now, Mr. Chairman, I would be happy to answer any questionsadditional questions I may say--which you or your members may like to ask. Senator KENNEDY. And now we will insert in the record at this point the material which Senator Dirksen has submitted. (The material referred to, for insertion in the record at this point, follows:) SENATE RESOLUTION 169-RESOLUTION TO PRINT A REPORT ENTITLED "EQUAL EMPLOYMENT OPPORTUNITY WITH REGARD TO FEDERAL-AID HIGHWAY PROJECTS" AS A SENATE DOCUMENT Mr. RANDOLPH. Mr. President, on behalf of the Subcommittee on Roads of the Committee on Public Works, I submit a resolution to print a report, entitled "Equal Employment Opportunity With Regard to Federal-Aid Highway Projects," as a Senate document. This report and its recommendations constitute a reaffirmation of our commitment to a strong, realistic, and effective equal employment opportunity effort on the part of those involved in the Federal-aid highway program. In essence, these suggestions urge on the Secretary of Transportation, the Federal Highway Administration and the State highway departments a broad scale attack on the problems of job discrimination. These recommendations place major responsibility on the State highway departments individually and as partners in the Federal effort to develop by the earliest possible date workable and meaningful programs designed to implement this important national policy. I discussed the recommendations and the report in a conference with the Secretary of Transportation on March 10, 1969. The Secretary, in carrying out his equal employment opportunity responsibilities, announced on Monday, March 17, the issuance of a new order relating to employment practices in Federal-aid highway construction work. As a result of some misunderstandings with respect to the intent of the changes contained in the new order, the Secretary issued an additional statement on March 18, 1969, which fully explains the Secretary's desire to make this program workable. My discussions with the Secretary and the position taken by him as set forth in the Department of Transportation news release on March 18, 1969, have confirmed my understanding of his deep commitment to positive equal employment programs. The Secretary fully understands the importance the Subcommittee on Roads attaches to the program and has assured me that the recommendations will be carried out to their fullest. The Secretary of Transportation has already given evidence to the State highway departments that he expects actual compliance with the requirements set forth in section 22 of the FederalAid Highway Act of 1968. Concern has been expressed on the part of some persons that a change in procedure at this time might adversely affect the attitudes of those involved in carrying out the program. It has been suggested that the Secretary's action, together with our critique of the program, might be interpreted by those who actively support civil rights efforts as well as those who oppose them as an attack on the underlying policy of equal employment opportunity. This interpretation is neither intended nor implied. The critique, to the extent that it calls prior agency efforts to task, concerns itself with designating procedural mistakes to be avoided in the future. Our avowed purpose is to strengthen the role of those employees of the Federal Highway Administration and the State highway departments who are responsible for carrying forward the program. The report recognizes that the program under review is new and relatively untested and that its success rests on effective administration. If the recommendations contained in it are implemented, it will be possible to have as many as 2,000 compliance reviews performed at the State level and another 750 by Federal employees. Under the program which we reviewed, there could have been only the 750 Federal reviews. Under the Department of Labor regulations |