i'm trackers reserve three minutes time for our rebuttal this is a challenge to specific fortunes of a new labor department affirmative action rule that conflicts with the plain language of section five zero three of the rehabilitation act our position has been somewhat mischaracterized apartment in the district court i let me say at the outset we are not here challenging affirmative action generally we're not challenging many aspects of the rule we are really challenging only two things the authority of the agency to go beyond what section five zero three allows it to do in particular with regard to data collection and analysis very burdensome provisions and the failure of the agency to recognize longstanding differences between types of industries namely construction and other industries the district court held with a sense of irony that the department has unqualified power to regulate this abilities in the affirmative act you have to demonstrate i think that this statute clearly limits the department's ability to collect this data well actually you have to be plain on its face because that's that is the i'm not misstating your argument might that your point is that about qualifications in order to fulfill or statutory obligation agree the hiring of qualified well that's their point but i submit in response to that and that that point is identical to arguments that have been made by many other plain language of the statute bars them from doing that it's a shared room one question absolutely and therefore there can't be any other reasonable interpretation supports the agency and so if you you you you have to show that his statute plainly prohibits the collection of his state that he can only be interpreted in that way right i do not agree with him quite with that wording it may be semantics but let me just point to for me this is very remarkably similar to the colorado river in the interest case on which you sat coincidentally and in which congress said they created the commission to regulate class to gain and the commission was created of the  individuals the question is what kind of affirmative action might advance the employment of qualified individuals and on that question the agency's view is that we need to know this kind of data because to take the data as an example in order in the end to figure out how to advance qualified individuals not that we're trying to advance non qualified individuals but before we can tell whether individuals are qualified or not whether you're taking appropriate affirmative recruitment  not we need a bunch of data about how many qualified people there are out there but how many disabled people there are about there why is this an unreasonable interpretation of the word shall take affirmative action to employ why is it there's no linkage between the data they are collecting and any determination saw a myth come of imagine that the data showed that there was a huge percentage of disabled people in the who are applying and you're hiring  now you don't think that they they might think from that that some of those huge number maybe even one was a qualified person and he just said just from the from your frat that there were a huge number of disabled people in raploch and pool and you are hiring not would be an inference that you're not taking affirmative action to employ qualified people you think that would be on reasonable inference it would be and in fact that's the fear that's what you rely on i think no no no th total misuse of statistics and we're not talking about using one it's the idea that you can collect information let's just take another had you want to measure let's say they want to measure the number of lines who are applying and they said well we can't really tell when it are so we want contractors to measure to take information all the people with care they're not related there is not a direct linkage between the number of this bill that he indeed applicants out there in the workplace and those who are qualified it can only be determined on a case and they say affirmative action is a tool designed to ensure equal employment opportunity and foster employment opportunities for individuals with disabilities and they say and regardless because they don't say they don't put in the work qualified regardless of individual  qualifications and right after that they say that's why we're seeking the measurable object this quantitative analysis and internal auditing it's because they have adopted this broad view to much broader than what congress is of who they are trying to help lofty goal is a burdensome goal congress struck a balance that said if you're going to do these things it needs to be to employ qualified individuals with disabilities so if you asked our contractors to measure all of these people who are disabled self identified with no relationship to their qualifications particularly in the construction industry where people are coming and going and this is not so much about the hazards in the industry that's one aspect it's about the transitory fluid nature of the employment process in the industry for contractors to try to be constantly picking up when jobs are coming and going on a daily basis who's in who's out and who was taking all these metrics together no linkage between this misuse of statistics to finding out who's qualified and who's not in the workplace and the department itself has disclaimed the intent to use this data for the purpose of determining whether there is world of what people were trying to do burdened already with many other obligations and so we're now mixing up the statutory language that the statute means what it says and it says that they're supposed to do something different than what their bill says  focusing on the recruiting aspect of it but am i right that under this statute an employer is required to make reasonable accommodation to a disability so yes ok so suppose for example an employer has a whole series of jobs disability people have who are applying might end up leading the employer on his own to take a look at the job didn't realize it because of technology or reasonable accommodation can be made to these members are doing that all the time for the say thank you thank you if you're from the government we interpret this statute is correct under the plain language of the statute congress's intent was clear to that it wanted to advance the employment of qualified individuals with disabilities the labor department's final rule does not do anything further than that though the agency's stated goal is to do that and it does certainly does not require any contractors to hire unqualified individuals and the data collection and utilization cold help it dance the ultimate purpose of hiring qualified individuals with disabilities and the department strengthened and revise its regulations in response to data that showed that there is still under existing regulations there is still a significant disparity between individuals with disabilities and non disabled workers and employment and poverty levels and wages and so it was necessary to pay something for and i also i think there be another example of how the data collection when when someone applies for a job there is no way of determining in a vacuum whether that person is qualified to date you need to their particular jobs that have different policy caissons and by gathering the data th labor department wanted to provide a tool for both the contractors themselves and the agency to better about the way on how the affirmative action steps were actually working and at and one example the court has already given or you can have an example where there are many individuals with disabilities and community and if a contractor finds that they have no output hence that may also indicate a problem with recruitment or outreach and lead to self evaluation the agency on the face of the regulation stated at the beginning that it the that these measures taken together are designed to bring more qualified individuals with disabilities into the federal contract work force that's on page ten of the joint appendix and you know we think we think the district court with completely correct in saying that the well within it statutory authority and reasonably promulgated these measures as your question of utilization call fifty two of your brief you say no record keeping so such as i'm assuming that utilization goal is triggered such or such assessments are independently required of contracts whether contractors whether or not the percentage of individuals with disabilities in one of  e groups or within a contractor's entire workforce is less than the goal you know mean or do you mean that when it's discovered that they're not within the gall that nothing more is required than would ordinarily be required anyway in which case it would seem foolish to have a go at all well if you look at the provision that the bill is a shingle but what it says however when you look at the specific things like that so it triggers a need to look at these things but the step these steps are independently required for your time utilization goal is really totally irrelevant doesn't make any difference at all because they have to do this anyway that can't be because if that can be then what's the point because it gives them a benchmark and a quantitative measure you're saying they're already doing the goal there or they may not realize that it's not i think it helps it is a  a useful data driven benchmark that they can compare their efforts against which they did not have before and it may be that they actually don't have to moment they see that are below some percent because of it was an example they don't have to do anything any more than they were doing before well they at that point they need to do the things that as i said are these are independent really required know i've already been doing these things because you tell me i'm already doing these things but if what the hope is that's going to be a tool to make the contractor realize that maybe what we're doing under this isn't good enough well isn't that i want to do this at the  of your annual periodic reviews well it isn't that the utilization announces itself as an annual if it's an annual ration so it does are you can wait until all in the next january well i mean depending how you know i don't know if different contractor this would have different schedules but i think what this does is when you do and you only have to do this and you can do your audit utilization goal of a contractor must take steps to determine whether impediments and then i've described what the steps are but are you saying that it is as the government's position that those steps are steps that already ha to take anyway so there actually is not no no burden because there is nothing more that needs to be don that was already being done and an american than a contractor was on a on a regular year basis doing this on january and it discovered i don't know march that it was below the goal they could wait until february the next january before its regular periodic review well i think the difference is that these measures are taken together and taken together they now hopefully through the pre our first help identify haitian requirement and through the data collection analysis provisions will actually have data that they can use to get so so what it does require that is new and the department has been clear it did not previously have the utilization goal under the five zero three regs though so construction contractors were subject to such goals under the executive order regulations but in any event they is does give them different data that they can look at and they're required to do it annually it's just that the review the permanent action requirements under five or three had already required them to do this sort of review they now hopefully just have much better tools to do it with them west bank staffs language then you're saying adds nothing at all t having to be sanctioned or to get them and i'm trying to stress where there is any burden at all and what you're telling me is there is no burden at all because failure to meet this utilization goal doesn't require you to do anything to take any steps that you weren't already taking well it doesn't terms that i guess just in terms of the timing of it you need once you make that determination which you're required to do annually you then do the things you are required to do anyway but it triggers that point and processes at that time when you don't meet the goal but the important it doesn't impose an additional burden at that point in that whether or not you meet the goal these are things contractors need to be doing finding out whether you've met utilization dollars at a burden that happens after all and that's what i was asking about the burn afterwards right where they describe it as utilization analysis i guess are not totally specific about that it seems clear to us from a plain reading of it that they are requiring analysis to take place specific to the goal that was never before required and then on top of that there's after the action oriented programs that are also supposed to take place and i guess our point in the limited time hundred buddle here is simply  there's no discussion or explanation for why the same goal would be applied to radically different industries and radically different job groups within industries that's arbitrary and capricious argument  there's there's really no sounds from the usual word century calculations and methodology to come to any particular number why is that number being applied it's never been done before in any of these other kind not now or beyond or bottle is sort of opening up a new set of questions so must ask if anybody on the panel has questions thank you very