Federal Register, Volume 70 Issue 119 (Wednesday, June 22, 2005)

[Federal Register Volume 70, Number 119 (Wednesday, June 22, 2005)]
[Rules and Regulations]
[Pages 36262-36266]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12220]

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Part III

Department of Labor

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Office of Federal Contract Compliance Programs

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41 CFR Parts 60-1, 60-250 and 60-741

Affirmative Action and Nondiscrimination Obligations of Contractors and
Subcontractors; Compliance Evaluations in All OFCCP Programs; Final
Rule

Federal Register / Vol. 70, No. 119 / Wednesday, June 22, 2005 /
Rules and Regulations

[[Page 36262]]

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DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs

41 CFR Parts 60-1, 60-250 and 60-741

RIN 1215-AB28, 1215-AB27, 1215-AB23

Affirmative Action and Nondiscrimination Obligations of
Contractors and Subcontractors; Compliance Evaluations in All OFCCP
Programs

AGENCY: Office of Federal Contract Compliance Programs, Employment
Standards Administration, Labor.

ACTION: Final rule.

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SUMMARY: This final rule revises the regulations implementing Section
503 of the Rehabilitation Act of 1973, as amended (Section 503), to
give the Office of Federal Contract Compliance Programs (OFCCP)
authority to use additional investigative procedures to determine a
contractor's compliance with Section 503. In this regard, this rule
adopts the ``compliance evaluation approach'' that is incorporated in
the regulations implementing Executive Order 11246, as amended, and the
affirmative action provisions of the Vietnam Era Veterans' Readjustment
Assistance Act, as amended (VEVRAA), respectively.
In addition, this final rule revises the compliance check procedure
found in the current Executive Order 11246 and VEVRAA implementing
regulations. The compliance check is one of the four investigative
procedures currently used by OFCCP to determine a contractor's
compliance with Executive Order 11246 and the affirmative action
provisions of VEVRAA. This final rule makes a few other minor and non-
substantive revisions to the regulations in 41 CFR Parts 60-1, 60-250,
and 60-741.

DATES: Effective Date: These regulations are effective: July 22, 2005.

FOR FURTHER INFORMATION CONTACT: Joseph J. DuBray, Jr., Director,
Division of Policy, Planning and Program Development, OFCCP, Room C-
3325, 200 Constitution Avenue, NW., Washington, DC 20210. Telephone
(202) 693-0102 (voice), (202) 693-1337 (TTY). Copies of this rule,
including copies in alternative formats, may be obtained by calling
(202) 693-0102 (voice), or (202) 693-1337 (TTY). The alternate formats
available are large print, electronic file on computer disk, and
audiotape. The rule also is available on the Internet at http://www.dol.gov/esa/ofccp/index.html.

SUPPLEMENTARY INFORMATION:

Current Regulations and Rulemaking History

Section 503 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. 793 (Section 503 of the Act), requires parties holding a
nonexempt Government contract or subcontract in excess of $10,000 to
take affirmative action to employ and advance in employment qualified
individuals with disabilities. The Department of Labor's Office of
Federal Contract Compliance Programs (OFCCP) administers Section 503
and has published implementing regulations at 41 CFR part 60-741, 61 FR
19336 (May 1, 1996).
The compliance review is used to evaluate contractor compliance
under all the laws administered and enforced by OFCCP. The compliance
review had been the primary method of evaluating compliance under
Executive Order 11246 and the affirmative action provisions of VEVRAA
until OFCCP, through amendments to both sets of regulations, introduced
additional procedures for evaluating contractors' compliance with their
nondiscrimination and affirmative action obligations. Prior to the
amendments, both the scope and content of compliance reviews were
prescribed in the Executive Order regulations. Compliance reviews were
to be a comprehensive evaluation of a contractor's employment practices
and were to consist of a desk audit, an on-site review and, if
necessary, an off-site analysis. The amendments made to the Executive
Order and VEVRAA regulations give OFCCP greater flexibility in the
manner in which it assesses a contractor's compliance.
The term ``compliance evaluation'' has been adopted in the
regulations implementing Executive 11246 and the affirmative action
provisions of VEVRAA. ``Compliance evaluation'' refers to any one of
the four investigative methods OFCCP may utilize to determine a
contractor's compliance with its nondiscrimination and affirmative
action obligations. In addition to the comprehensive compliance review,
three abbreviated methods for evaluating a contractor's compliance are
authorized under the regulations implementing Executive Order 11246 and
the affirmative action provisions of VEVRAA: Off-site review of
records, compliance check, and focused review. OFCCP has found that the
compliance evaluation approach for determining compliance has resulted
in improved efficiency and better targeting of agency resources.
Under the current regulations implementing Section 503 the
compliance review is still the primary method used to determine whether
a contractor maintains nondiscriminatory employment practices and is
taking affirmative action to employ and advance in employment qualified
individuals with disabilities. The current regulation at 41 CFR 60-
741.60 provides that the compliance review shall consist of a
comprehensive analysis and evaluation of the contractor's employment
practices. However, unlike the prior Executive Order regulations, the
current regulations do not prescribe the content of the compliance
review under Section 503. Thus, under the current Section 503
regulations, if OFCCP can make a determination about compliance based
upon a review and analysis of the documentation submitted in response
to the scheduling letter, the agency may complete the Section 503
compliance review without making an on-site visit to the contractor's
establishment.
On October 12, 2000, OFCCP issued a notice of proposed rulemaking
(NPRM), 65 FR 60816, to revise certain regulations implementing Section
503. The NPRM proposed to formally adopt the compliance evaluation
approach and expressly authorize off-site reviews of records,
compliance checks, and focused reviews under Section 503. In addition,
the NPRM proposed to revise the compliance check procedure found in the
regulations implementing Executive Order 11246 and the affirmative
action provisions of VEVRAA by removing the requirement that OFCCP
visit a contractor's establishment during a compliance check. The NPRM
proposed other minor and non-substantive revisions to the regulations
in 41 CFR parts 60-250 and 60-741. The comment period closed on
December 11, 2000. Comments were received from two organizations: One
representing Government contractors and the other representing human
resource professionals. Both sets of comments were considered in the
development of this final rule.

Overview of the Final Rule

The final rule, for the most part, adopts the revisions that were
proposed in the NPRM. The final rule revises the regulation at 41 CFR
60-741.60 to authorize the use of additional investigative procedures
for evaluating compliance under Section 503. In addition, the final
rule revises the compliance check provisions contained in 41 CFR 60-
1.20 and 41 CFR 60-250.60 by eliminating the on-site visit requirement.
The final rule replaces the term ``compliance review'' with
``compliance evaluation,'' as

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appropriate, in certain sections of the regulations. Further, the rule
corrects a drafting oversight by including the term ``compliance
evaluation'' in the definition section of the VEVRAA regulations at 41
CFR 60-250.2.
The final rule also makes substantive revisions to the compliance
evaluation regulations in response to the public comments. In
particular, the final rule revises the compliance check provisions by
conforming the scope of the procedure to OFCCP's current and historical
use of the compliance check, i.e., a determination of whether the
contractor maintains records, consistent with the record retention
regulations. In addition, in response to the commenters, the final rule
revises the confidentiality provision in the 41 CFR 60-1.20(g). These
changes are explained in more detail in the Analysis of the Comments
and Revisions.
Further, the final rule makes a ``housekeeping'' revision to the
regulations in 41 CFR Parts 60-1, 60-250, and 60-741 that was not
proposed in the NPRM. The final rule removes from the regulations all
references to the ``Letter of Commitment.'' In August 1998, OFCCP
discontinued the use of the Letter of Commitment as a resolution
document. (Transmittal Number 226, ADM Notice, ``Discontinuing the Use
of the Letter of Commitment,'' August 5, 1998). The minor technical
violations formerly incorporated into the Letter of Commitment are now
summarized in the closure letter. Since OFCCP no longer uses the Letter
of Commitment, the final rule removes the references to the term found
in the following regulations: 41 CFR 60-1.33, 60-1.34, 60-250.62, 60-
250.63, 60-741.62 and 60-741.63.
OFCCP has determined that the amendments to remove references to
the Letter of Commitment need not be published in an NPRM for public
comment, as generally required by the Administrative Procedure Act
(APA), 5 U.S.C. 553. These amendments are technical and non-
substantive, and do not affect any rights or interests of parties.
Further, removing references to the Letter of Commitment from the
regulations will ensure that the public has updated information about
the agency's enforcement procedures. Accordingly, there is good cause
for finding that the notice and public comment procedure is unnecessary
and contrary to the public interest, pursuant to section 553(b)(B) of
the APA.
The discussion below identifies the comments received in response
to the NPRM and provides OFCCP's response to those comments. For an
explanation of provisions adopted unchanged from the proposed rule and
on which no comments were made, see the NPRM preamble.

Analysis of the Comments and Revisions

Section 60-741.60 Compliance Evaluations

Proposed 41 CFR 60-741.60 authorizes OFCCP to use compliance
evaluations to determine if a contractor is complying with its
obligations under Section 503 and its implementing regulations.
Consistent with the regulations implementing Executive Order 11246 and
the affirmative action provisions of VEVRAA, proposed Sec. 60-
741.60(a) specified that the compliance evaluation methods available to
OFCCP include a compliance review, an off-site review of records, a
compliance check, and a focused review. Proposed Sec. 60-741.60(a)
also contained descriptions of the activities contemplated under each
of the four compliance evaluation methods.
OFCCP explained in the preamble discussion that the revisions to
the Section 503 regulations are necessary to harmonize the procedures
used when enforcing Section 503, the Executive Order, and VEVRAA. The
revisions would ensure that the agency could use parallel procedures to
simultaneously evaluate contractor compliance under all three laws. At
the same time, the revisions would give OFCCP leeway to develop and
pursue enforcement initiatives that focus only on contractor compliance
with Section 503 and its implementing regulations.
Both commenters favored the proposal to adopt the compliance
evaluation approach under Section 503. The commenters acknowledged that
conforming the compliance evaluation regulations under Section 503 to
those under the regulations implementing Executive Order 11246 and the
affirmative action provisions of VEVRAA would make for a consistent
regulatory enforcement structure. Aside from the statements in support,
there were no other specific comments on this aspect of the proposal.
Accordingly, Sec. 60-741.60 is adopted in the final rule as proposed.

Section 60-1.20 and 60-250.60 Compliance Evaluations

The current regulations at 41 CFR 60-1.20(a)(3) and 60-250.60(a)(3)
describe a compliance check as a ``visit to the [contractor's]
establishment'' to ascertain whether data and other information
previously submitted are accurate and complete; whether the contractor
has maintained records consistent with the record retention
requirements in Sec. 60-1.12 and Sec. 60-250.80; and whether the
contractor has developed affirmative action programs consistent with
the regulations. OFCCP proposed to revise the regulations at 41 CFR 60-
1.20(a)(3) and 60-250(a)(3) by eliminating the requirement that OFCCP
visit a contractor's establishment when the compliance check procedure
is used to assess compliance. OFCCP has found that, in many instances,
the assessments made with a compliance check procedure can be made
without making an on-site visit.
OFCCP stated in the NPRM that the proposed change would allow the
agency greater flexibility when using the compliance check method to
assess a contractor's compliance status. The NPRM explained that, with
the elimination of the on-site requirement, the contractor still would
be required to provide OFCCP access to the requested documents, but at
the contractor's option the documents may be provided either on-site or
off-site. One commenter believed that other statements in the preamble
implied that OFCCP, rather than the contractor, would decide how the
requirements of the compliance check would be satisfied. The commenter
stated that the final rule should unequivocally state that the
contractor could elect whether to provide documents on-site at the
establishment being evaluated or submit them to an OFCCP office. To
that end, the commenter recommended that the ``contractor's option'' be
added to the text of the compliance check regulation.
OFCCP wishes to clarify that contractors will have the option of
either providing requested documents on-site or submitting them to an
OFCCP office or other designated location when the compliance check is
the method used to investigate compliance. Accordingly, the final rule
adds the ``contractor's option'' language to the text of the compliance
check regulation.
The NPRM also explained that eliminating the on-site visit
requirement would not expand the scope of the examination contemplated
under the compliance check procedure. Under OFCCP's current procedure,
the compliance check involves a perfunctory assessment of whether the
contractor maintains certain records as required under the Executive
Order regulations. Procedures for conducting the ``Compliance Check to
Ensure Maintenance of Records Consistent with 41 CFR 60-1.12'' are set
forth in OFCCP's Federal Contract Compliance Manual (FCCM), which is
available on our Internet Web site at http://

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www2.dol.gov/esa/regs/compliance/ofccp/fccm/fccmanul.htm. The
Compliance Manual explains that the Compliance Officer is only
inspecting records to ensure compliance with 41 CFR 60-1.12 during the
compliance check, and identifies three categories of records to be
inspected during the compliance check: A report of results under the
prior Affirmative Action Program (AAP); examples of job advertisements,
including listings with state employment services; and examples of
accommodations made for persons with disabilities. See FCCM, Section
2T00. In contrast to OFCCP's historical and current procedures, the
regulations provide that the compliance check may be used to ascertain:
(1) Whether data and other information previously submitted by the
contractor are complete and accurate; (2) whether the contractor has
maintained records consistent with the regulations; and (3) whether the
contractor has developed AAPs consistent with the regulations.
Both commenters wanted to conform the scope of the compliance check
to what is and has been OFCCP's practices, as reflected in the
Compliance Manual. One commenter asked that OFCCP incorporate in the
final regulation the language from the Compliance Manual that states
that the compliance check is a limited inspection of certain records.
The other commenter requested assurances that OFCCP would maintain the
practice of requesting only the records that are currently specified in
the Compliance Manual.
As was stated in the NPRM, OFCCP has no intention of expanding the
scope of the examination contemplated under the compliance check
procedure. Accordingly, OFCCP has decided to adopt the recommendation
that the final rule state that the compliance check will be used to
determine whether the contractor is maintaining records, as required
under the regulations. However, OFCCP declines to adopt the
recommendation that the final rule limit the records inspected during
the compliance check to the three categories of records currently
specified in the Compliance Manual. OFCCP announced in the Compliance
Manual that the future procedures might focus on the review of other
records the contractor is required to retain. One of the records
currently identified in the Compliance Manual has been eliminated under
the new regulations in Part 60-2. Obviously, this regulatory change in
Part 60-2 will necessitate a change in the records currently identified
in the Compliance Manual. OFCCP would seek authorization under the
Paperwork Reduction Act prior to implementing any changes in the
records inspected during the compliance check. During the Paperwork
Reduction Act authorization, OFCCP would provide notice to the public
and an opportunity to comment on any change in the records to be
inspected during the compliance check.
Further, one commenter asked that OFCCP include in the compliance
check regulation a confidentiality provision similar to the one found
in the Part 60-2 regulations. The commenter presumably is referring to
the confidentiality provision included in the Equal Opportunity Survey
regulation at 41 CFR 60-2.18(d). The current compliance evaluation
regulation at 41 CFR 60-1.20(g) includes a confidentiality provision.
The language in Sec. 60-1.20(g) differs from the language in Sec. 60-
2.18(d), but OFCCP follows the same set of procedures when responding
to all requests to disclose information submitted by contractors. OFCCP
believes the language in Sec. 60-2.18(d) is preferable because it
clearly describes the agency's policy and practice regarding the
release of information provided by the contractor. Accordingly, the
final rule conforms the confidentiality provision in 41 CFR 60-1.20(g)
to the confidentiality provision in 41 CFR 60-2.18(d).
The additional changes made to the compliance evaluation regulation
today do not alter existing agency practice, nor do they affect the
substantive obligations of contractors under the laws OFCCP
administers.

Regulatory Procedures

Executive Order 12866

The Office of Management and Budget (OMB) has reviewed this rule
under Executive Order 12866, Regulatory Planning and Review. OMB has
determined that this rule is a ``significant regulatory action'' as
defined in section 3(f) of the Order. However, this rule is not an
economically significant regulatory action under the Order, and
therefore, no regulatory impact analysis has been prepared.

Regulatory Flexibility Act

This rule does not substantively change existing obligations for
Federal contractors; it will only specify the procedures the agency may
use to evaluate a Federal contractor's compliance with existing
requirements. Accordingly, the Department certifies that the rule will
not have a significant economic impact on a substantial number of small
business entities. The Secretary has certified to the Chief Counsel for
Advocacy of the Small Business Administration to this effect.
Therefore, a regulatory flexibility analysis under the Regulatory
Flexibility Act is not required.

Unfunded Mandates Reform

For purposes of the Unfunded Mandates Reform Act of 1995, as well
as Executive Order 12875, the rule does not include any Federal
mandates that may result in increased expenditures by state, local, and
tribal governments, or increased expenditures by the private sector, of
$100,000,000 or more in any one year.

Paperwork Reduction Act

Today's rule will have a negligible impact, if any, on the
information collection requirements currently approved by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act (44
U.S.C. 3501, et seq.). Information collection requirements for
compliance evaluations are currently approved under OMB control number
1215-0072. The currently approved inventory includes a burden estimate
for compliance checks, which is based on the assumption that it takes
the average contractor approximately four-tenths of an hour to find and
make available the documents requested during a compliance check. OFCCP
intends to perform 2,500 compliance checks per year. OFCCP queried its
field staff and estimates that a contractor will take approximately .5
hours to find and make available the necessary material. The reporting
burden is 2,500 x .5 hours = 1,250 hours. The rule to revise the
compliance check procedure by removing the on-site visit requirement
will mean that, during some compliance checks, contractors will submit
documents to an OFCCP office rather than make them available for an
OFCCP compliance officer to review on-site. OFCCP estimates that the
revision to the compliance check procedure will not result in a net
change in the burden hours associated with compliance checks. OFCCP
will submit for approval to OMB the information collection provisions
of this rule as necessary.

Executive Order 13132 (Federalism)

OFCCP has reviewed this rule in accordance with Executive Order
13132 regarding federalism, and has determined that it does not have
``federalism implications.'' The rule does not ``have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''

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List of Subjects

41 CFR Part 60-1

Administrative practice and procedure, Equal employment
opportunity, Government contracts, Reporting and recordkeeping
requirements.

41 CFR Part 60-250

Administrative practice and procedure, Equal employment
opportunity, Government contracts, Veterans, Reporting and
recordkeeping requirements.

41 CFR Part 60-741

Administrative practice and procedure, Equal employment
opportunity, Government contracts, Individuals with disabilities,
Reporting and recordkeeping requirements.

Signed at Washington, DC, this 15th day of June 2005.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Charles E. James, Sr.
Deputy Assistant Secretary for Federal Contract Compliance

0
Accordingly, for the reasons set forth in the Preamble, this rule
amends Title 41 of the Code of Federal Regulations, chapter 60, Parts
60-1, 60-250 and 60-741, under authorities cited as set forth below:

PART 60-1--OBLIGATIONS OF CONTRACTORS AND SUBCONTRACTORS

0
1. The authority citation for part 60-1 continues to read as follows:

Authority: Sec. 201, E.O. 11246 (30 FR 12319), as amended by
E.O. 11375 (32 FR 14303) and E.O. 12086 (43 FR 46501).

0
2. In Sec. 60-1.20 paragraph (a)(3) and paragraph (g) are revised to
read as follows:

Sec. 60-1.20 Compliance evaluations.

(a) * * *
(3) Compliance check. A determination of whether the contractor has
maintained records consistent with Sec. 60-1.12; at the contractor's
option the documents may be provided either on-site or off-site; or
* * * * *
(g) Public Access to Information. OFCCP will treat information
obtained in the compliance evaluation as confidential to the maximum
extent the information is exempt from public disclosure under the
Freedom of Information Act, 5 U.S.C. 552. It is the practice of OFCCP
not to release data where the contractor is still in business, and the
contractor indicates, and through the Department of Labor review
process it is determined, that the data are confidential and sensitive
and that the release of data would subject the contractor to commercial
harm.

Sec. 60-1.33 [Amended]

0
3. Section 60-1.33 is amended by removing paragraph (b), and by
removing the designation ``(a)'' from the first paragraph.

0
4. Section 60-1.34 is amended by removing paragraph (b), removing the
paragraph (a) designation, redesignating paragraphs (a)(1) through
(a)(4) as paragraphs (a) through (d) respectively, and revising the
section heading to read as follows:

Sec. 60-1.34 Violation of a Conciliation Agreement.

* * * * *

PART 60-250--AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS
OF CONTRACTORS AND SUBCONTRACTORS REGARDING SPECIAL DISABLED
VETERANS AND VETERANS OF THE VIETNAM ERA

0
5. The authority citation for part 60-250 continues to read as follows:

Authority: 29 U.S.C. 793: 38 U.S.C. 4211 and 4212; E.O. 11758 (3
CFR, 1971-1975 Comp., p. 841.)

0
6. In Sec. 60-250.2 paragraph (v) is added to read as follows:

Sec. 60-250.2 Definitions.

* * * * *
(v) Compliance evaluation means any one or combination of actions
OFCCP may take to examine a Federal contractor or subcontractor's
compliance with one or more of the requirements of the Vietnam Era
Veterans' Readjustment Assistance Act.

0
7. In Sec. 60-250.60 paragraph (a)(3) is revised to read as follows:

Sec. 60-250.60 Compliance evaluations.

(a) * * *
(3) Compliance check. A determination of whether the contractor has
maintained records consistent with Sec. 60-250.80; at the contractor's
option the documents may be provided either on-site or off-site; or
* * * * *

0
8. Section 60-250.62 is amended by removing paragraph (b) and paragraph
(a) designation, and by revising the section heading and the first
sentence of former paragraph (a) to read as follows:

Sec. 60-250.62 Conciliation Agreements.

If a compliance evaluation, complaint investigation or other review
by OFCCP finds a material violation of the Act or this part, and if the
contractor is willing to correct the violations and/or deficiencies,
and if OFCCP determines that settlement on that basis (rather than
referral for consideration of formal enforcement) is appropriate, a
written conciliation agreement shall be required. * * *

0
9. Section Sec. 60-250.63 is amended by removing paragraph (d), and by
revising the section heading to read as follows:

Sec. 60-250.63 Violations of Conciliation Agreements.

* * * * *

PART 60-741--AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS
OF CONTRACTORS AND SUBCONTRACTORS REGARDING INDIVIDUALS WITH
DISABILITIES

0
10. The authority citation for part 60-741 continues to read as
follows:

Authority: 29 U.S.C. 706 and 793; and E.O. 11758 (3 CFR 1971-
1975 Comp., p. 841.)

0
11. Section 60-741.2 is amended by adding a new paragraph (z) to read
as follows:

Sec. 60-74l.2 Definitions.

* * * * *
(z) Compliance evaluation means any one or combination of actions
OFCCP may take to examine a Federal contractor's or subcontractor's
compliance with one or more of the requirements of Section 503 of the
Rehabilitation Act of 1973.

0
12. In Sec. 60-741.44 paragraph (a)(2) is revised to read as follows:

Sec. 60-741.44 Required contents of affirmative action programs.

* * * * *
(a) * * *
0
(2) Assisting or participating in an investigation, compliance
evaluation, hearing, or any other activity related to the
administration of Section 503 of the Rehabilitation Act of 1973, as
amended (Section 503) or any other Federal, State or local law
requiring equal opportunity for disabled persons;
* * * * *

0
13. In Sec. 60-741.60 the section heading and paragraph (a) are
revised to read as follows:

Sec. 60-74l.60 Compliance evaluations.

(a) OFCCP may conduct compliance evaluations to determine if the
contractor maintains nondiscriminatory hiring and employment practices
and is

[[Page 36266]]

taking affirmative action to ensure that applicants are employed and
that employees are placed, trained, upgraded, promoted, and otherwise
treated in accordance with this part during employment. A compliance
evaluation may consist of any one or any combination of the following
investigative procedures:
(1) Compliance review. A comprehensive analysis and evaluation of
the hiring and employment practices of the contractor, the written
affirmative action program, and the results of the affirmative action
efforts undertaken by the contractor. A compliance review may proceed
in three stages:
(i) A desk audit of the written affirmative action program and
supporting documentation to determine whether all elements required by
the regulations in this part are included, whether the affirmative
action program meets agency standards of reasonableness, and whether
the affirmative action program and supporting documentation satisfy
agency standards of acceptability. The desk audit is conducted at OFCCP
offices;
(ii) An on-site review, conducted at the contractor's establishment
to investigate unresolved problem areas identified in the affirmative
action program and supporting documentation during the desk audit, to
verify that the contractor has implemented the affirmative action
program and has complied with those regulatory obligations not required
to be included in the affirmative action program, and to examine
potential instances or issues of discrimination. An on-site review
normally will involve an examination of the contractor's personnel and
employment policies, inspection and copying of documents related to
employment actions, and interviews with employees, supervisors,
managers, hiring officials; and
(iii) Where necessary, an off-site analysis of information supplied
by the contractor or otherwise gathered during or pursuant to the on-
site review;
(2) Off-site review of records. An analysis and evaluation of the
affirmative action program (or any part thereof) and supporting
documentation, and other documents related to the contractor's
personnel policies and employment actions that may be relevant to a
determination of whether the contractor has complied with the
requirements of Section 503 of the Rehabilitation Act of 1973 and
regulations;
(3) Compliance check. A determination of whether the contractor has
maintained records consistent with Sec. 60-741.80; at the contractor's
option the documents may be provided either on-site or off-site; or
(4) Focused review. An on-site review restricted to one or more
components of the contractor's organization or one or more aspects of
the contractor's employment practices.
* * * * *

0
14. Section 60-741.62 is amended by removing paragraph (b) and the
paragraph (a) designation, and by revising the section heading and the
first sentence of former paragraph (a) to read as follows:

Sec. 60-741.62 Conciliation agreements.

0
15. Section 60-741.63 is amended by removing paragraph (d), and by
revising the section heading to read as follows:

Sec. 60-250.63 Violations of Conciliation Agreements.

* * * * *

0
16. In Sec. 60-741.65, the first sentence of paragraph (a)(1) is
revised to read as follows:

Sec. 60-741.65 Enforcement proceedings.

(a) General. (1) If a compliance evaluation, complaint
investigation or other review by OFCCP finds a violation of the act or
this part, and the violation has not been corrected in accordance with
the conciliation procedures in this part, or OFCCP determines that
referral for consideration of formal enforcement (rather than
settlement) is appropriate, OFCCP may refer the matter to the Solicitor
of Labor with a recommendation for the institution of enforcement
proceedings to enjoin the violations, to seek appropriate relief, to
impose appropriate sanctions, or any combination of these outcomes. * *
*
* * * * *

0
17. In Sec. 60-741.68, the fourth sentence of paragraph (a) is revised
to read as follows:

Sec. 60-741.68 Reinstatement of ineligible contractors.

(a) * * * Before reaching a decision, the Deputy Assistant
Secretary may conduct a compliance evaluation of the contractor and may
require the contractor to supply additional information regarding the
request for reinstatement. * * *

0
18. In Sec. 60-741.69, paragraph (a)(2) is revised to read as follows:

Sec. 60-741.69 Intimidation and interference.

(a)* * *
(2) Assisting or participating in any manner in an investigation,
compliance evaluation, hearing, or any other activity related to the
administration of the act or any other Federal, State or local law
requiring equal opportunity for disabled persons;
* * * * *

0
19. In Sec. 60-741.80, the last two sentences of paragraph (a) are
revised to read as follows:

Sec. 60-741.80 Recordkeeping.

(a) * * * Where the contractor has received notice that a complaint
of discrimination has been filed, that a compliance evaluation has been
initiated, or that an enforcement action has been commenced, the
contractor must preserve all personnel records relevant to the
complaint, compliance evaluation or action until final disposition of
the complaint, compliance evaluation or action. The term ``personnel
records relevant to the complaint, compliance evaluation or action''
will include, for example, personnel or employment records relating to
the aggrieved person and to all other employees holding positions
similar to that held or sought by the aggrieved person and application
forms or test papers completed by an unsuccessful applicant and by all
other candidates for the same position as that for which the aggrieved
person applied and was rejected.
* * * * *

0
20. In Sec. 60-741.81, the first sentence is revised to read as
follows:

Sec. 60-741.81 Access to records.

Each contractor must permit access during normal business hours to
its places of business for the purpose of conducting on-site compliance
evaluations and complaint investigations and inspecting and copying
such books and accounts and records, including computerized records,
and other material as may be relevant to the matter under investigation
and pertinent to compliance with the act or this part. * * *
[FR Doc. 05-12220 Filed 6-21-05; 8:45 am]
BILLING CODE 4510-CM-P