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the subject of the current initial peri remaining procedures for complaint inodic review.
vestigation, are detailed in $1534.4 im
mediately below. 81634.3 Initial stage of complaint investigation.
8 1634.4 Procedures for determination (a) Complaints alleging violation of
of compliance or noncompliance these regulations, in the nature of em
and for conciliation. ployment discrimination, will be han (a) This Section governs how the OFI dled by the Equal Employment Oppor will process cases of possible non-comtunity Commission (EEOC) with OFI pliance, whether generated through coordination, pursuant to the Memo compliance review or complaint invesrandum of Understanding informally tigation, initiated under $$ 1534.2 and agreed to and, after public comment, 1534.3 respectively. planned to be signed into effect by the (b) Upon finding reasonable cause to two agencies.
believe that there is noncompliance, (1) The EEOC will process all com during compliance review, or upon iniplaints alleging employment discrimi- tiating investigation, after receipt of a nation within its jurisdiction. All other complaint, the OFI will first notify the complaints will be processed, pursuant potentially noncompliant recipient, to paragraph (b) of this section.
contractor, or subcontractor of the fol(2) Under the MOU the OFI may be- lowing: come involved in two specific aspects (1) A request for pertinent informaof employment discrimination proceed- tion and data; ings handled by the EEOC. First, where (2) A statement of the practices to be it appears that the EEOC's efforts at reviewed, and the programs or activiconciliation may fail, the OFI may ties affected by the compliance review then attempt such conciliation. Sec or complaint investigation; ond, when EEOC and OFI efforts at (3) An opportunity to respond in conciliation have failed the OFI, after writing: consultation with the EEOC, may pur (i) To explain, support, or otherwise sue its own enforcement action.
address the practices to be reviewed or (b) For all other complaints alleging (ii) To rebut or deny the allegations violation of these regulations, the OFI made in the complaint; and will, within 35 calendar days of receipt, (4) The schedule for review or invesnotify the pertinent recipient, contrac tigation, including formal on-site retor, or subcontractor by letter (ap view or investigation to commence 15 pended to which will be a copy of the calendar days after the notice. complaint) of the initiation of an in- (c) Within 30 calendar days of comvestigation. For complaints just pletion of the formal on-site review or against a contractor and/or subcontrac- investigation (which itself will be contor, the OFI will also forward a copy of ducted expeditiously by the OFI but the complaint and notice to the cor under no set timetable), conducted as responding recipient. At the same time per paragraph (b)(4) of this section, the the OFI will notify the complainant of OFI will notify the pertinent recipient, this action and the procedures to be contractor, or subcontractor in writing followed. Complaints to be investigated of: by the OFI must be in writing and con (1) Preliminary findings as to complitain the following:
ance or noncompliance; any complain(1) Name, address, and telephone ant will receive notice of the preliminumber of the complainant;
nary findings; (2) Name and address of the recipient, (2) Where appropriate, recommendacontractor, or subcontractor charged tions for achieving voluntary compliby the complainant;
ance; (3) Description of the acts alleged to (3) The opportunity to request that violate these regulations; and
the OFI engage in voluntary compli(4) Any other pertinent information. ance negotiations (to be completed
(c) The contents of the letter initiat within 20 calendar days of this written ing investigation, issued under para- notice) prior to a final determination graph (b) of this section, as well as the of compliance or noncompliance; and
(4) Where a contractor or subcontrac- the appropriate recipient pursuant to tor alone appears to be in possible non- paragraphs (b), (c) and (e) of this seccompliance, the obligation on the part tion. of the appropriate recipient (after no- (8) All voluntary compliance agreetice of the preliminary finding directed ments, whether formed under parato the contractor or subcontractor) to graphs (c)(3) or (e) of this section, will assist the OFI in achieving voluntary have the following features: compliance, failure for which may also (1) The agreement shall: be processed through these procedures (1) Be in writing; to determine noncompliance with these (ii) Be signed by an authorized offiregulations.
cial of the recipient, contractor, or (d) The OFI will render a final deter- subcontractor and by the OFI desmination as to compliance or non- ignated official; compliance within 45 calendar days of (iii) Contain commitments regarding notice given under paragraph (c) of this the precise remedial action to be taken section.
and the dates for completion of those (1) A final determination of non remedial actions, including commitcompliance will be made in the follow ments to eliminate all discriminatory ing situations:
practices and conditions; and (1) The preliminary recommendation (iv) Include a provision that breach for voluntary compliance is not fol- of the agreement may result in further lowed;
enforcement actions by the OFI. (11) Voluntary compliance is not se- (2) Upon execution of the agreement, cured; or
the OFI will certify compliance, condi(iii) The preliminary finding of non tioned upon: compliance is not shown to be false.
(1) Performance of the commitments (2) A final determination of non- given under paragraph (1)(1)(iii) of this compliance will contain the following section, and provisions:
(ii) The full facts being known at the (1) A statement with specificity of time the agreement was executed. how the recipient, contractor, or sub (h) In the case of complaints, the OFI contractor has violated these regula- will notify the complainant of actions tions;
taken, including: (11) A detailed basis for this finding of (1) Final determination of nonnoncompliance, including how the re compliance, and subsequent enforcecipient, contractor, or subcontractor ment efforts; failed to follow the recommendations (2) Finding of compliance; contained in the OFI's preliminary
(3) Achieving voluntary compliance finding, rendered pursuant to para- through conciliation; or graph (c) of this section; and
(4) Closing the investigation due to (111) Final recommendations on reme- complainant's failure to cooperate or dial actions to bring the recipient, con provide necessary information. tractor, or subcontractor into compliance.
$ 1534.5 Enforcement procedures. (e) Where a final determination of (a) The OFI will act pursuant to this noncompliance has been made under section when it has rendered a final deparagraph (d) of this section, the OFI termination of noncompliance, under will so advise the pertinent recipient, $1534.4(d), and the noncompliant recipicontractor, subcontractor, and any ent, contractor, or subcontractor has complainant in writing, giving an addi- failed to comply voluntarily within 10 tional 10 calendar days in which to days thereafter, under $1534.4(e). In adcomply voluntarily. If the recipient, dition, the OFI will act pursuant to contractor, or subcontractor has not so this section when acting against cercomplied, the OFI will institute en- tain employment discrimination, based forcement proceedings under $1534.5 of on determinations of the EEOC, as per this part.
$ 1534.3(a)(2). (f) In cases where complaints have (b) Except as provided in paragraph been filed against contractors or sub- (c) of this section, the OFI will seek jucontractors only, the OFI will notify dicial enforcement in the United
States District Court having venue, seeking appropriate injunctive and civil fine relief, as provided in 43 CFR 34.11(b) of the 43 CFR part 34 regulations. Such civil action will be commenced following consultation and coordination between the OFI General Counsel and the Civil Rights Division of the Department of Justice and where appropriate, the EEOC.
(c) In the event that the OFI finds, as part of its final determination made under $ 1534.4(d), that a recipient, contractor, or subcontractor has so consistently and substantially failed to meet its approved affirmative action plan that the overall equal opportunity goals of section 17 of ANGTA and the 43 CFR part 34 regulations are in jeopardy, the OFI may issue a compliance
Day 18sue a compliance order stopping work on the particular ANGTS activity until compliance is assured. The procedure for issuing such a compliance order entails the following:
(1) Within 10 calendar days of the final determination of noncompliance and related 10-day compliance period (as defined in paragraph (a) of this section), the OFI will issue a show cause order why the noncompliant recipient, contractor, or subcontractor should not immediately be subject to a compliance order and work stoppage. The show cause order will contain the following:
(1) A summary of the final determination of noncompliance;
(ii) A statement of the recipient, contractor, or subcontractor's subsequent failure to achieve voluntary compliance;
(iii) A statement explaining why the violation of the approved affirmative action plan is so serious as to warrant work stoppage; and
(iv) Notice that the OFI will hold an informal conference within 10 calendar days.
(2) The noncompliant recipient, contractor, or subcontractor must present oral argument and documentary sup port in rebuttal at this informal conference:
(1) If the Director of the OFI Otrice of Equal Opportunity Minority Business Enterprise or designee, who will pre
side over the informal conference, concludes that there are no material facts in issue, he or she will render in writing a recommended decision on the compliance order within 15 calendar days of the close of the informal co ference.
(11) If the Director or designee concludes, however, that there are material facts in issue which cannot be ascertained without a hearing on the record, he or she will set the proceeding for hearing.
(A) The General Counsel of the OFI or designee will preside over and conduct any such hearing on the record, under procedures established by the OFI for similar proceedings (10 CFR part 1508).
(B) Following the presentation of oral and written evidence, an opportunity for cross-examination, and the filing of briefs, the General Counsel will render in writing a recommended decision on the compliance order within 15 calendar days of the close of the hearing.
(3) The Federal Inspector or delegate will render a final decision on the compliance order. The following process will be employed:
(i) Within 10 calendar days of issuance of a recommended decision, under either paragraph (c)(2)(i) or (c)(2)(11) of this section, the respondent recipient, contractor, or subcontractor and, in the case of a complaint investigation, the complainant may file a brief agreeing with or contesting the recommended decision.
(ii) Except when the record is unduly voluminous and complex, the Federal Inspector or delegate will issue in writing a final decision within 20 days of receiving the briefs.
(iii) When the final decision is to issue a compliance order and to stop work, the Federal Inspector or delegate will institute the prescribed sanctions, unless the respondent has complied within 10 calendar days of the compliance order.
PART 1535-ENFORCEMENT OF Auriliary aids means services or de
NONDISCRIMINATION ON THE vices that enable persons with imBASIS OF HANDICAP IN PRO. paired sensory, manual, or speaking GRAMS OR ACTIVITIES CON
skills to have an equal opportunity to DUCTED BY OFFICE OF THE FED
participate in, and enjoy the benefits
of, programs or activities conducted by ERAL INSPECTOR FOR THE ALAS
the agency. For example, auxiliary aids KA NATURAL GAS TRANSPOR
useful for persons with impaired vision TATION SYSTEM
include readers, Brailled materials,
audio recordings, telecommunications Sec.
devices and other similar services and 1535.101 Purpose.
devices. Auxiliary aids useful for per1535.102 Application.
sons with impaired hearing include 1535.103 Definitions.
telephone handset amplifiers, tele1535.104—1535.109 (Reserved)
phones compatible with hearing aids, 1535.110 Self-evaluation.
telecommunication devices for deaf 1535.111 Notice. 1535.112—1535.129 (Reserved]
persons (TDD's), interpreters, 1535.130 General prohibitions against dis
notetakers, written materials, and crimination.
other similar services and devices. 1535.131–1535.138 (Reserved)
Complete complaint means a written 1535.140 Employment.
statement that contains the complain1535.141—1535.148 (Reserved)
ant's name and address and describes 1535.149 Program accessibility: Discrimina the agency's alleged discriminatory action prohibited.
tion in sufficient detail to inform the 1535.150 Program accessibility: Existing fa
agency of the nature and date of the alcilities 1535.151 Program accessibility: New con
leged violation of section 504. It shall struction and alterations.
be signed by the complainant or by 1535.152–1535.159 (Reserved)
someone authorized to do so on his or 1535.160 Communications.
her behalf. Complaints filed on behalf 1535.161–1535.169 (Reserved)
of classes or third parties shall describe 1535.170 Compliance procedures.
or identify (by name, if possible) the 1535.171–1535.999 (Reserved)
alleged victims of discrimination. AUTHORITY: 29 U.S.C. 794.
Facility means all or any portion of
buildings, structures, equipment, SOURCE: 51 FR 4579, Feb. 5, 1986, unless oth
roads, walks, parking lots, rolling erwise noted.
stock or other conveyances, or other 8 1535.101 Purpose.
real or personal property.
Handicapped person means any person This part effectuates section 119 of
who has a physical or mental impairthe Rehabilitation, Comprehensive
ment that substantially limits one or Services, and Developmental Disabil
more major life activities, has a record ities Amendments of 1978, which
of such an impairment, or is regarded amended section 504 of the Rehabilita
as having such an impairment. tion Act of 1973 to prohibit discrimina
As used in this definition, the phrase: tion on the basis of handicap in pro
(1) Physical or mental impairment ingrams or activities conducted by Exec
cludes utive agencies or the United States
(1) Any physiological disorder or conPostal Service.
dition, cosmetic disfigurement, or ana
tomical loss affecting one of more of g 1535.102 Application.
the following body systems: NeuroThis part applies to all programs or logical; musculoskeletal; special sense activities conducted by the agency. organs; respiratory, including speech
organs; cardiovascular; reproductive; 8 1635.103 Definitions.
digestive; genitourinary; hemic and For purposes of this part, the term lymphatic; skin; and endocrine; or
Assistant Attorney General means the (ii) Any mental or psychological disAssistant Attorney General, Civil order, such as mental retardation, orRights Division, United States Depart ganic brain syndrome, emotional or ment of Justice.
mental illness, and specific learning
Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub. L. 93– 112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), and the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 (Pub. L. 95 602, 92 Stat. 2955). As used in this part, Section 504 applies only to programs or activities conducted by Executive agencies and not to federally assisted programs. (51 FR 4579, Feb. 5, 1986; 51 FR 7543, Mar. 3, 1986)
disabilities. The term “physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and drug addition and alcholism.
(2) Major life activities includes functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or has been misclassified as having, & mental or physical impairment that substantially limits one or more major Ufe activities.
(4) Is regarded as having an impairment means
(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the agency as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits major Ufe activities only as a result of the at titudes of others toward such impairment; or
(iii) Has none of the impairments defined in subparagraph (1) of this definition but is treated by the agency as having such an impairment.
Qualified handicapped person means
(1) With respect to any agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, a handicapped person who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the agency can demonstrate would result in a fundamental alteration in its nature; or
(2) With respect to any other program or activity, a handicapped person who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity.
(3) Qualified handicapped person is defined for purposes of employment in 29 CFR 1613.702(1), which is made applicable to this part by 8 1535.140.
88 1636.104–1685.109 (Reserved) 1635.110 Self-evaluation.
(a) The agency shall, by April 9, 1987, evaluate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this part, and, to the extent modification of any such policies and practices is required, the agency shall proceed to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons, including handicapped persons or organizations representing handicapped persons, to participate in the self-evaluation process by submitting comments (both oral and written).
(c) The agency shall, until three years following the completion of the self-evaluation, maintain on file and make available for public inspections:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
$ 1535.111 Notice.
The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the programs or activities conducted by the agency, and make such information available to them in such manner as the head of the agency finds necessary to apprise such persons of the protections against discrimination assured them by section 504 and this regulation.