Title 23—Highways--Volume 1
PART 230—EXTERNAL PROGRAMS
§ 230.101   Purpose.
The purpose of the regulations in this subpart is to prescribe the policies, procedures, and guides relative to the implementation of an equal employment opportunity program on Federal and Federal-aid highway construction contracts, except for those contracts awarded under 23 U.S.C. 117, and to the preparation and submission of reports pursuant thereto.
§ 230.103   Definitions.
For purposes of this subpart—
Administrator means the Federal Highway Administrator.
Areawide Plan means an affirmative action plan to increase minority utilization of crafts in a specified geographical area pursuant to Executive Order 11246, and taking the form of either a “Hometown” or an “Imposed” plan.
Bid conditions means contract requirements which have been issued by OFCC for purposes of implementing a Hometown Plan.
Division Administrator means the chief Federal Highway Administration (FHWA) official assigned to conduct FHWA business in a particular State, the District of Columbia, or the Commonwealth of Puerto Rico.
Division Equal Opportunity Officer means an individual with staff level responsibilities and necessary authority by which to operate as an Equal Opportunity Officer in a Division office. Normally the Equal Opportunity Officer will be a full-time civil rights specialist serving as staff assistant to the Division Administrator.
Hometown Plan means a voluntary areawide plan which was developed by representatives of affected groups (usually labor unions, minority organizations, and contractors), and subsequently approved by the Office of Federal Contract Compliance (OFCC), for purposes of implementing the equal employment opportunity requirements pursuant to Executive Order 11246, as amended.
Imposed Plan means an affirmative action requirement for a specified geographical area made mandatory by OFCC and, in some areas, by the courts.
Journeyman means a person who is capable of performing all the duties within a given job classification or craft.
State highway agency means that department, commission, board, or official of any State charged by its laws with the responsibility for highway construction. The term State should be considered equivalent to State highway agency.
Suggested minimum annual training goals means goals which have been assigned to each State highway agency annually for the purpose of specifying training positions on selected Federal-aid highway construction projects.
Supportive services means those services provided in connection with approved on-the-job training programs for highway construction workers and highway contractors which are designed to increase the overall effectiveness of training programs through the performance of functions determined to be necessary in connection with such programs, but which are not generally considered as comprising part of actual on-the-job craft training.
Trainee means a person who received on-the-job training, whether through an apprenticeship program or other programs approved or accepted by the FHWA.
§ 230.105   Applicability.
(a) Federal-aid highway construction projects. This subpart applies to all Federal-aid highway construction projects and to Appalachian highway construction projects and other State supervised cooperative highway construction projects except:
(1) Federal-aided highway construction projects being constructed pursuant to 23 U.S.C. 117; and
(2) Those projects located in areas where the Office of Federal Contract Compliance has implemented an “Imposed” or a “Hometown” Plan, except for those requirements pertaining to specific provisions involving on-the-job training and those provisions pertaining to supportive services and reporting requirements.
(b) Direct Federal highway construction projects. This subpart applies to all direct Federal highway construction projects except:
(1) For those provisions relating to the special requirements for the provision of supportive services; and
(2) For those provisions relating to implementation of specific equal employment opportunity requirements in areas where the Office of Federal Contract Compliance has implemented an “Imposed” or “Hometown” plan.
§ 230.107   Policy.
(a) Direct Federal and Federal-aid highway construction projects. It is the policy of the FHWA to require that all direct Federal and Federal-aid highway construction contracts include the same specific equal employment opportunity requirements. It is also the policy to require that all direct Federal and Federal-aid highway construction subcontracts of $10,000 or more (not including contracts for supplying materials) include these same requirements.
(b) Federal-aid highway construction projects. It is the policy of the FHWA to require full utilization of all available training and skill-improvement opportunities to assure the increased participation of minority groups and disadvantaged persons and women in all phases of the highway construction industry. Moreover, it is the policy of the Federal Highway Administration to encourage the provision of supportive services which will increase the effectiveness of approved on-the-job training programs conducted in connection with Federal-aid highway construction projects.
§ 230.109   Implementation of specific Equal Employment Opportunity requirements.
(a) Federal-aid highway construction projects. The special provisions set forth in appendix A shall be included in the advertised bidding proposal and made part of the contract for each contract and each covered Federal-aid highway construction subcontract.
(b) Direct Federal highway construction projects. Advertising, award and contract administration procedures for direct Federal highway construction contracts shall be as set forth in Federal Acquisition Regulations (48 CFR, chapter 1, section 22.803(c)). In order to obtain information required by 48 CFR, chapter 1, § 22.804-2(c), the following requirement shall be included at the end of the bid schedule in the proposal and contract assembly:
I expect to employ the following firms as subcontractors on this project: (Naming subcontractors at this time does not constitute a binding commitment on the bidder to retain such subcontractors, nor will failure to enter names affect the contract award):
§ 230.111   Implementation of special requirements for the provision of on-the-job training.
(a) The State highway agency shall determine which Federal-aid highway construction contracts shall include the “Training Special Provisions” (appendix B) and the minimum number of trainees to be specified therein after giving appropriate consideration to the guidelines set forth in § 230.111(c). The “Training Special Provisions” shall supersede section 7(b) of the Special Provisions (appendix A) entitled “Specific Equal Employment Opportunity Responsibilities.” Minor wording revisions will be required to the “Training Special Provisions” in areas having “Hometown” or “Imposed Plan” requirements.
(b) The Washington Headquarters shall establish and publish annually suggested minimum training goals. These goals will be based on the Federal-aid apportioned amounts and the minority population. A State will have achieved its goal if the total number of training slots on selected federally aided highway construction contracts which have been awarded during each 12-month period equals or exceeds the State's suggested minimum annual goal. In the event a State highway agency does not attain its goal during a calendar year, the State highway agency at the end of the calendar year shall inform the Administrator of the reasons for its inability to meet the suggested minimum number of training slots and the steps to be taken to achieve the goal during the next calendar year. The information is to be submitted not later than 30 days from the end of the calendar year and should be factual, and should not only indicate the situations occurring during the year but show the project conditions at least through the coming year. The final determination will be made on what training goals are considered to be realistic based on the information submitted by a State.
(c) The following guidelines shall be utilized by the State highway agency in selecting projects and determining the number of trainees to be provided training therein:
(1) Availability of minorities, women, and disadvantaged for training.
(2) The potential for effective training.
(3) Duration of the contract.
(4) Dollar value of the contract.
(5) Total normal work force that the average bidder could be expected to use.
(6) Geographic location.
(7) Type of work.
(8) The need for additional journeymen in the area.
(9) Recognition of the suggested minimum goal for the State.
(10) A satisfactory ratio of trainees to journeymen expected to be on the contractor's work force during normal operations (considered to fall between 1:10 and 1:4).
(d) Training programs which are established shall be approved only if they meet the standards set forth in appendix B with regard to:
(1) The primary objectives of training and upgrading minority group workers, women and disadvantaged persons.
(2) The development of full journeymen.
(3) The minimum length and type of training.
(4) The minimum wages of trainees.
(5) Trainees certifications.
(6) Keeping records and furnishing reports.
(e)(1) Training programs considered by a State highway agency to meet the standards under this directive shall be submitted to the FHWA division Administrator with a recommendation for approval.
(2) Employment pursuant to training programs approved by the FHWA division Administrator will be exempt from the minimum wage rate provisions of section 113 of title 23 U.S.C. Approval, however, shall not be given to training programs which provide for employment of trainees at wages less than those required by the Special Training Provisions. (Appendix B.)
(f)(1) Apprenticeship programs approved by the U.S. Department of Labor as of the date of proposed use by a Federal-aid highway contractor or subcontractor need not be formally approved by the State highway agency or the FHWA division Administrator. Such programs, including their minimum wage provisions, are acceptable for use, provided they are administered in a manner reasonably calculated to meet the equal employment opportunity obligations of the contractor.
(2) Other training programs approved by the U.S. Department of Labor as of the date of proposed use by a Federal-aid highway contractor or subcontractor are also acceptable for use without the formal approval of the State highway agency or the division Administrator provided:
(i) The U.S. Department of Labor has clearly approved the program aspects relating to equal employment opportunity and the payment of trainee wage rates in lieu of prevailing wage rates.
(ii) They are reasonably calculated to qualify the average trainees for journeyman status in the classification concerned by the end of the training period.
(iii) They are administered in a manner calculated to meet the equal employment obligations of the contractors.
(g) The State highway agencies have the option of permitting Federal-aid highway construction contractors to bid on training to be given under this directive. The following procedures are to be utilized by those State highway agencies that elect to provide a bid item for training:
(1) The number of training positions shall continue to be specified in the Special Training Provisions. Furthermore, this number should be converted into an estimated number of hours of training which is to be used in arriving at the total bid price for the training item. Increases and decreases from the estimated amounts would be handled as overruns or underruns;
(2) A section concerning the method of payment should be included in the Special Training Provisions. Some offsite training is permissible as long as the training is an integral part of an approved training program and does not comprise a substantial part of the overall training. Furthermore, the trainee must be concurrently employed on a federally aided highway construction project subject to the Special Training Provisions attached to this directive. Reimbursement for offsite training may only be made to the contractor where he does one or more of the following: Contributes to the cost of the training, provides the instruction to the trainee, or pays the trainee's wages during the offsite training period;
(3) A State highway agency may modify the special provisions to specify the numbers to be trained in specific job classifications;
(4) A State highway agency can specify training standards provided any prospective bidder can use them, the training standards are made known in the advertised specifications, and such standards are found acceptable by FHWA.
§ 230.113   Implementation of supportive services.
(a) The State highway agency shall establish procedures, subject to the availability of funds under 23 U.S.C. 140(b), for the provision of supportive services in support of training programs approved under this directive. Funds made available to implement this paragraph shall not be used to finance the training of State highway agency employees or to provide services in support of such training. State highway agencies are not required to match funds allocated to them under this section.
(b) In determining the types of supportive services to be provided which will increase the effectiveness of approved training programs. State highway agencies shall give preference to the following types of services in the order listed:
(1) Services related to recruiting, counseling, transportation, physical examinations, remedial training, with special emphasis upon increasing training opportunities for members of minority groups and women;
(2) Services in connection with the administration of on-the-job training programs being sponsored by individual or groups of contractors and/or minority groups and women's groups;
(3) Services designed to develop the capabilities of prospective trainees for undertaking on-the-job training;
(4) Services in connection with providing a continuation of training during periods of seasonal shutdown;
(5) Followup services to ascertain outcome of training being provided.
(c) State highway agencies which desire to provide or obtain supportive services other than those listed above shall submit their proposals to the Federal Highway Administration for approval. The proposal, together with recommendations of the division and regional offices shall be submitted to the Administrator for appropriate action.
(d) When the State highway agency provides supportive services by contract, formal advertising is not required by the FHWA, however, the State highway agency shall solicit proposals from such qualified sources as will assure the competitive nature of the procurement. The evaluation of proposals by the State highway agency must include consideration of the proposer's ability to effect a productive relationship with contractors, unions (if appropriate), minority and women groups, minority and women trainees, and other persons or organizations whose cooperation and assistance will contribute to the successful performance of the contract work.
(e) In the selection of contractors to provide supportive services, State highway agencies shall make conscientious efforts to search out and utilize the services of qualified minority or women organizations, or minority or women business enterprises.
(f) As a minimum, State highway agency contracts to obtain supportive services shall include the following provisions:
(1) A statement that a primary purpose of the supportive services is to increase the effectiveness of approved on-the-job training programs, particularly their effectiveness in providing meaningful training opportunities for minorities, women, and the disadvantaged on Federal-aid highway projects;
(2) A clear and complete statement of the services to be provided under the contract, such as services to construction contractors, subcontractors, and trainees, for recruiting, counseling, remedial educational training, assistance in the acquisition of tools, special equipment and transportation, followup procedures, etc.;
(3) The nondiscrimination provisions required by Title VI of the Civil Rights Act of 1964 as set forth in FHWA Form PR-1273, and a statement of nondiscrimination in employment because of race, color, religion, national origin or sex;
(4) The establishment of a definite perriod of contract performance together with, if appropriate, a schedule stating when specific supportive services are to be provided;
(5) Reporting requirements pursuant to which the State highway agency will receive monthly or quarterly reports containing sufficient statistical data and narrative content to enable evaluation of both progress and problems;
(6) A requirement that the contractor keep track of trainees receiving training on Federal-aid highway construction projects for up to 6 months during periods when their training is interrupted. Such contracts shall also require the contractor to conduct a 6 month followup review of the employment status of each graduate who completes an on-the-job training program on a Federal-aid highway construction project subsequent to the effective date of the contract for supportive services.
(7) The basis of payment;
(8) An estimated schedule for expenditures;
(9) The right of access to contractor and subcontractor records and the right to audit shall be granted to authorize State highway agency and FHWA officials;
(10) Noncollusion certification;
(11) A requirement that the contractor provide all information necessary to support progress payments if such are provided for in the contract;
(12) A termination clause.
(g) The State highway agency is to furnish copies of the reports received under paragraph (b)(5) of this section, to the division office.
§ 230.115   Special contract requirements for “Hometown” or “Imposed” Plan areas.
Direct Federal and Federal-aid contracts to be performed in “Hometown” or “Imposed” Plan areas will incorporate the special provision set forth in appendix G.
§ 230.117   Reimbursement procedures (Federal-aid highway construction projects only).
(a) On-the-job special training provisions. State highway agencies will be reimbursed on the same pro-rata basis as the construction costs of the Federal-aid project.
(b) Supportive services. (1) The State highway agency must keep a separate account of supportive services funds since they cannot be interchanged with regular Federal-aid funds. In addition, these funds may not be expended in a manner that would provide for duplicate payment of Federal or Federal-aid funds for the same service.
(2) Where a State highway agency does not obligate all its funds within the time specified in the particular year's allocation directive, the funds shall revert to the FHWA Headquarters Office to be made available for use by other State highway agencies, taking into consideration each State's need for and ability to use such funds.
§ 230.119   Monitoring of supportive services.
Supportive services procured by a State highway agency shall be monitored by both the State highway agency and the division office.
§ 230.121   Reports.
(a) Employment reports on Federal-aid highway construction contracts not subject to “Hometown” or “Imposed” plan requirements.
(1) Paragraph 10c of the special provisions (appendix A) sets forth specific reporting requirements. FHWA Form PR-1391, Federal-Aid Highway Construction Contractors Annual EEO Report, (appendix C) and FHWA Form PR 1392, Federal-Aid Highway Construction Summary of Employment Data (including minority breakdown) for all Federal-Aid Highway Projects for month ending July 31st, 19—, (appendix D) are to be used to fulfill these reporting requirements.
(2) Form PR 1391 is to be completed by each contractor and each subcontractor subject to this part for every month of July during which work is performed, and submitted to the State highway agency. A separate report is to be completed for each covered contract or subcontract. The employment data entered should reflect the work force on board during all or any part of the last payroll period preceding the end of the month. The State highway agency is to forward a single copy of each report to the FHWA division office.
(3) Form PR 1392 is to be completed by the State highway agencies, summarizing the reports on PR 1391 for the month of July received from all active contractors and subcontractors. Three (3) copies of completed Forms PR 1392 are to be forwarded to the division office.
(b) Employment reports on direct Federal highway construction contracts not subject to “Hometown” or “Imposed” plan requirements. Forms PR 1391 (appendix C) and PR 1392 (appendix D) shall be used for reporting purposes as prescribed in § 230.121(a).
(c) Employment reports on direct Federal and Federal-aid highway construction contracts subject to “Hometown” or “Imposed” plan requirements.
(1) Reporting requirements for direct Federal and Federal-aid highway construction projects located in areas where “Hometown” or “Imposed” plans are in effect shall be in accordance with those issued by the U.S. Department of Labor, Office of Federal Contract Compliance.
(2) In order that we may comply with the U.S. Senate Committee on Public Works' request that the Federal Highway Administration submit a report annually on the status of the equal employment opportunity program, Form PR 1391 is to be completed annually by each contractor and each subcontractor holding contracts or subcontracts exceeding $10,000 except as otherwise provided for under 23 U.S.C. 117. The employment data entered should reflect the work force on board during all or any part of the last payroll period preceding the end of the month of July.
(d) [Reserved]
(e) Reports on supportive services contracts. The State highway agency is to furnish copies of the reports received from supportive services contractors to the FHWA division office which will furnish a copy to the regional office.
§ 230.201   Purpose.
To prescribe the policies, procedures, and guidance to develop, conduct, and administer supportive services assistance programs for minority, disadvantaged, and women business enterprises.
§ 230.202   Definitions.
(a) Minority Business Enterprise, as used in this subpart, refers to all small businesses which participate in the Federal-aid highway program as a minority business enterprise (MBE), women business enterprise (WBE), or disadvantaged business enterprise (DBE), all defined under 49 CFR part 23. This expanded definition is used only in this subpart as a simplified way of defining the firms eligible to benefit from this supportive services program.
(b) Supportive Services means those services and activities provided in connection with minority business enterprise programs which are designed to increase the total number of minority businesses active in the highway program and contribute to the growth and eventual self-sufficiency of individual minority businesses so that such businesses may achieve proficiency to compete, on an equal basis, for contracts and subcontracts.
(c) State highway agency means that department, commission, board, or official of any State charged by its laws with the responsibility for highway construction. The term State is considered equivalent to State highway agency if the context so implies.
§ 230.203   Policy.
Based on the provisions of Pub. L. 97-424, dated January 6, 1983, it is the policy of the Federal Highway Administration (FHWA) to promote increased participation of minority business enterprises in Federal-aid highway contracts in part through the development and implementation of cost effective supportive services programs through the State highway agencies.
§ 230.204   Implementation of supportive services.
(a) Subject to the availability of funds under 23 U.S.C. 140(c), the State highway agency shall establish procedures to develop, conduct, and administer minority business enterprise training and assistance programs specifically for the benefit of women and minority businesses. Supportive services funds allocated to the States shall not be used to finance the training of State highway agency employees or to provide services in support of such training. State highway agencies are not required to match funds allocated to them under this section. Individual States are encouraged to be actively involved in the provision of supportive services. Such involvement can take the form of staff, funding, and/or direct assistance to augment the supportive services efforts financed by Federal-aid funds.
(b) State highway agencies shall give preference to the following types of services:
(1) Services relating to identification, prequalification, and certification assistance, with emphasis on increasing the total number of legitimate minority business enterprises participating in the Federal-aid highway program;
(2) Services in connection with estimating, bidding, and technical assistance designed to develop and improve the capabilities of minority businesses and assist them in achieving proficiency in the technical skills involved in highway construction;
(3) Services designed to develop and improve the immediate and long-term business management, recordkeeping, and financial accounting capabilities;
(4) Services to assist minority business enterprises to become eligible for and to obtain bonding and financial assistance;
(5) Services relating to verification procedures to ensure that only bona fide minority business enterprises are certified as eligible for participation in the Federal-aid highway program;
(6) Follow-up services to ascertain the outcome of training and assistance being provided; and
(7) Other services which contribute to long-term development, increased opportunities, and eventual self-sufficiency of minority business enterprises.
(c) A detailed work statement of the supportive services which the State highway agency considers to meet the guidance under this regulation and a program plan for meeting the requirements of paragraph (b) of this section and accomplishing other objectives shall be submitted to the FHWA for approval.
(d) State highway agencies which desire to provide or obtain services other than those listed in paragraph (b) of this section shall submit their proposals to the FHWA for approval.
(e) When the State highway agency provides supportive services by contract, formal advertising is not required by FHWA; however, the State highway agency shall solicit proposals from such qualified sources as will assure the competitive nature of the procurement. The evaluation of proposals by the State highway agency must include consideration of the proposer's ability to effect a productive relationship with majority and minority contractors, contractors' associations, minority groups, and other persons or organizations whose cooperation and assistance will increase the opportunities for minority business enterprises to compete for and perform contracts and subcontracts.
(f) In the selection of contractors to perform supportive services, State highway agencies shall make conscientious efforts to search out, and utilize the services of qualified minority or women organizations, or minority or women enterprises.
(g) As a minimum, State highway agency contracts to obtain supportive services shall include the following provisions:
(1) A statement that a primary purpose of the supportive services is to increase the total number of minority firms participating in the Federal-aid highway program and to contribute to the growth and eventual self-sufficiency of minority firms;
(2) A statement that supportive services shall be provided only to those minority business enterprises determined to be eligible for participation in the Federal-aid highway program in accordance with 49 CFR part 23 and have a work specialty related to the highway construction industry;
(3) A clear and complete statement of the services to be provided under the contract, such as technical assistance, managerial assistance, counseling, certification assistance, and follow-up procedures as set forth in § 230.204(b) of this part;
(4) The nondiscrimination provisions required by Title VI of the Civil Rights Act of 1964 as set forth in Form FHWA-1273, Required Contract Provisions, Federal-Aid Construction Contracts, 1 and a statement of nondiscrimination in employment because of race, color, religion, sex, or national origin;
1 Form FHWA-1273 is available for inspection and copying at the locations given in 49 CFR part 7, appendix D, under Document Inspection Facilities, and at all State highway agencies.
(5) The establishment of a definite period of contract performance together with, if appropriate, a schedule stating when specific supportive services are to be provided;
(6) Monthly or quarterly reports to the State highway agency containing sufficient data and narrative content to enable evaluation of both progress and problems;
(7) The basis of payment;
(8) An estimated schedule for expenditures;
(9) The right of access to records and the right to audit shall be granted to authorize State highway agency and FHWA officials;
(10) Noncollusion certification;
(11) A requirement that the contractor provide all information necessary to support progress payments if such are provided for in the contract; and
(12) A termination clause.
(h) The State highway agency is to furnish copies of the reports received under paragraph (g)(6) of this section to the FHWA division office.
§ 230.205   Supportive services funds obligation.
Supportive services funds shall be obligated in accordance with the procedures set forth in § 230.117(b) of this part. The point of obligation is defined as that time when the FHWA has approved a detailed work statement for the supportive services.
§ 230.206   Monitoring supportive services.
Supportive services programs shall be continually monitored and evaluated by the State highway agency so that needed improvements can be identified and instituted. This requires the documentation of valid effectiveness measures by which the results of program efforts may be accurately assessed.
§ 230.207   Sources of assistance.
It is the policy of the FHWA that all potential sources of assistance to minority business enterprises be utilized. The State highway agency shall take actions to ensure that supportive services contracts reflect the availability of all sources of assistance in order to maximize resource utilization and avoid unnecessary duplication.
§ 230.301   Purpose.
The purpose of the regulations in this subpart is to set forth Federal Highway Administration (FHWA) Federal-aid policy and FHWA and State responsibilities relative to a State highway agency's internal equal employment opportunity program and for assuring compliance with the equal employment opportunity requirements of federally-assisted highway construction contracts.
§ 230.303   Applicability.
The provisions of this subpart are applicable to all States that receive Federal financial assistance in connection with the Federal-aid highway program.
§ 230.305   Definitions.
As used in this subpart, the following definitions apply:
(a) Affirmative Action Plan means:
(1) With regard to State highway agency work forces, a written document detailing the positive action steps the State highway agency will take to assure internal equal employment opportunity (internal plan).
(2) With regard to Federal-aid construction contract work forces, the Federal equal employment opportunity bid conditions, to be enforced by a State highway agency in the plan areas established by the Secretary of Labor and FHWA special provisions in nonplan areas (external plan).
(b) Equal employment opportunity program means the total State highway agency program, including the affirmative action plans, for ensuring compliance with Federal requirements both in State highway agency internal employment and in employment on Federal-aid construction projects.
(c) Minority groups. An employee may be included in the minority group to which he or she appears to belong, or is regarded in the community as belonging. As defined by U.S. Federal agencies for employment purposes, minority group persons in the U.S. are identified as Blacks (not of Hispanic origin), Hispanics, Asian or Pacific Islanders, and American Indians or Alaskan Natives.
(d) Racial/ethnic identification. For the purpose of this regulation and any accompanying report requirements, an employee may be included in the group to which he or she appears to belong, identifies with, or is regarded in the community as belonging. However, no person should be counted in more than one racial/ethnic category. The following group categories will be used:
(1) The category White (not of Hispanic origin): All persons having origins in any of the original peoples of Europe, North Africa, the Middle East, or the Indian Subcontinent.
(2) The category Black (not of Hispanic origin): All persons having origins in any of the Black racial groups.
(3) The category Hispanic: All persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race.
(4) The category Asian or Pacific Islanders: All persons having origins in any of the original peoples of the Far East, Southeast Asia, or the Pacific Islands. This area includes, for example, China, Japan, Korea, the Philippine Islands, and Samoa.
(5) The category American Indian or Alaskan Native: All persons having origins in any of the original peoples of North America.
(e) State means any of the 50 States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, and the Virgin Islands.
(f) State highway agency means that department, commission, board, or official of any State charged by its laws with the responsibility for highway construction. The term State should be considered equivalent to State highway agency if the context so implies.
§ 230.307   Policy.
Every employee and representative of State highway agencies shall perform all official equal employment opportunity actions in an affirmative manner, and in full accord with applicable statutes, executive orders, regulations, and policies enunciated thereunder, to assure the equality of employment opportunity, without regard to race, color, religion, sex, or national origin both in its own work force and in the work forces of contractors, subcontractors, and material suppliers engaged in the performance of Federal-aid highway construction contracts.
§ 230.309   Program format.
It is essential that a standardized Federal approach be taken in assisting the States in development and implementation of EEO programs. The format set forth in appendix A provides that standardized approach. State equal employment opportunity programs that meet or exceed the prescribed standards will comply with basic FHWA requirements.
§ 230.311   State responsibilities.
(a) Each State highway agency shall prepare and submit an updated equal employment opportunity program, one year from the date of approval of the preceding program by the Federal Highway Administrator, over the signature of the head of the State highway agency, to the Federal Highway Administrator through the FHWA Division Administrator. The program shall consist of the following elements:
(1) The collection and analysis of internal employment data for its entire work force in the manner prescribed in part II, paragraph III of appendix A; and
(2) The equal employment opportunity program, including the internal affirmative action plan, in the format and manner set forth in appendix A.
(b) In preparation of the program required by § 230.311(a), the State highway agency shall consider and respond to written comments from FHWA regarding the preceding program.
§ 230.313   Approval procedure.
After reviewing the State highway agency equal employment opportunity program and the summary analysis and recommendations from the FHWA regional office, the Washington Headquarters Office of Civil Rights staff will recommend approval or disapproval of the program to the Federal Highway Administrator. The State highway agency will be advised of the Administrator's decision. Each program approval is effective for a period of one year from date of approval.
§ 230.401   Purpose.
The purpose of the regulations in this subpart is to prescribe policies and procedures to standardize the implementation of the equal opportunity contract compliance program, including compliance reviews, consolidated compliance reviews, and the administration of areawide plans.
§ 230.403   Applicability.
The procedures set forth hereinafter apply to all nonexempt direct Federal and Federal-aid highway construction contracts and subcontracts, unless otherwise specified.
§ 230.405   Administrative responsibilities.
(a) Federal Highway Administration ( FHWA ) responsibilities. (1) The FHWA has the responsibility to ensure that contractors meet contractural equal opportunity requirements under E.O. 11246, as amended, and title 23 U.S.C., and to provide guidance and direction to States in the development and implementation of a program to assure compliance with equal opportunity requirements.
(2) The Federal Highway Administrator or a designee may inquire into the status of any matter affecting the FHWA equal opportunity program and, when considered necessary, assume jurisdiction over the matter, proceeding in coordination with the State concerned. This is without derogation of the authority of the Secretary of Transportation, Department of Transportation (DOT), the Director, DOT Departmental Office of Civil Rights (OCR) or the Director, Office of Federal Contract Compliance Programs (OFCCP), Department of Labor.
(3) Failure of the State highway agency (SHA) to discharge the responsibilities stated in § 230.405(b)(1) may result in DOT's taking any or all of the following actions (see appendix A to 23 CFR part 630, subpart C “Federal-aid project agreement”):
(i) Cancel, terminate, or suspend the Federal-aid project agreement in whole or in part;
(ii) Refrain from extending any further assistance to the SHA under the program with respect to which the failure or refusal occurred until satisfactory assurance of future compliance has been received from the SHA; and
(iii) Refer the case to an appropriate Federal agency for legal proceedings.
(4) Action by the DOT, with respect to noncompliant contractors, shall not relieve a SHA of its responsibilities in connection with these same matters; nor is such action by DOT a substitute for corrective action utilized by a State under applicable State laws or regulations.
(b) State responsibilities. (1) The SHA's, as contracting agencies, have a responsibility to assure compliance by contractors with the requirements of Federal-aid construction contracts, including the equal opportunity requirements, and to assist in and cooperate with FHWA programs to assure equal opportunity.
(2) The corrective action procedures outlined herein do not preclude normal contract administration procedures by the States to ensure the contractor's completion of specific contract equal opportunity requirements, as long as such procedures support, and sustain the objectives of E.O. 11246, as amended. The State shall inform FHWA of any actions taken against a contractor under normal State contract administration procedures, if that action is precipitated in whole or in part by noncompliance with equal opportunity contract requirements.
§ 230.407   Definitions.
For the purpose of this subpart, the following definitions shall apply, unless the context requires otherwise:
(a) Actions, identified by letter and number, shall refer to those items identified in the process flow chart. (Appendix D);
(b) Affirmative Action Plan means a written positive management tool of a total equal opportunity program indicating the action steps for all organizational levels of a contractor to initiate and measure equal opportunity program progress and effectiveness. (The Special Provisions [23 CFR part 230 A, appendix A] and areawide plans are Affirmative Action Plans.);
(c) Affirmative Actions means the efforts exerted towards achieving equal opportunity through positive, aggressive, and continuous result-oriented measures to correct past and present discriminatory practices and their effects on the conditions and privileges of employment. These measures include, but are not limited to, recruitment, hiring, promotion, upgrading, demotion, transfer, termination, compensation, and training;
(d) Areawide Plan means an Affirmative Action Plan approved by the Department of Labor to increase minority and female utilization in crafts of the construction industry in a specified geographical area pursuant to E.O. 11246, as amended, and taking the form of either a “Hometown” or an “Imposed” Plan.
(1) Hometown Plan means a voluntary areawide agreement usually developed by representatives of labor unions, minority organizations, and contractors, and approved by the OFCCP for the purpose of implementing the equal employment opportunity requirements pursuant to E.O. 11246, as amended;
(2) Imposed Plan means mandatory affirmative action requirements for a specified geographical area issued by OFCCP and, in some areas, by the courts;
(e) Compliance Specialist means a Federal or State employee regularly employed and experienced in civil rights policies, practices, procedures, and equal opportunity compliance review and evaluation functions;
(f) Consolidated Compliance Review means a review and evaluation of all significant construction employment in a specific geographical (target) area;
(g) Construction shall have the meanings set forth in 41 CFR 60-1.3(e) and 23 U.S.C. 101(a). References in both definitions to expenses or functions incidental to construction shall include preliminary engineering work in project development or engineering services performed by or for a SHA;
(h) Corrective Action Plan means a contractor's unequivocal written and signed commitment outlining actions taken or proposed, with time limits and goals, where appropriate to correct, compensate for, and remedy each violation of the equal opportunity requirements as specified in a list of deficiencies. (Sometimes called a conciliation agreement or a letter of commitment.);
(i) Contractor means, any person, corporation, partnership, or unincorporated association that holds a FHWA direct or federally assisted construction contract or subcontract regardless of tier;
(j) Days shall mean calendar days;
(k) Discrimination means a distinction in treatment based on race, color, religion, sex, or national origin;
(l) Equal Employment Opportunity means the absence of partiality or distinction in employment treatment, so that the right of all persons to work and advance on the basis of merit, ability, and potential is maintained;
(m) Equal Opportunity Compliance Review means an evaluation and determination of a nonexempt direct Federal or Federal-aid contractor's or subcontractor's compliance with equal opportunity requirements based on:
(1) Project work force —employees at the physical location of the construction activity;
(2) Area work force —employees at all Federal-aid, Federal, and non-Federal projects in a specific geographical area as determined under § 230.409 (b)(9); or
(3) Home office work force —employees at the physical location of the corporate, company, or other ownership headquarters or regional managerial, offices, including “white collar” personnel (managers, professionals, technicians, and clericals) and any maintenance or service personnel connected thereto;
(n) Equal Opportunity Requirements is a general term used throughout this document to mean all contract provisions relative to equal employment opportunity (EEO), subcontracting, and training;
(o) Good Faith Effort means affirmative action measures designed to implement the established objectives of an Affirmative Action Plan;
(p) Show Cause Notice means a written notification to a contractor based on the determination of the reviewer (or in appropriate cases by higher level authority) to be in noncompliance with the equal opportunity requirements. The notice informs the contractor of the specific basis for the determination and provides the opportunity, within 30 days from receipt, to present an explanation why sanctions should not be imposed;
(q) State highway agency (SHA) means that department, commission, board, or official of any State charged by its laws with the responsibility for highway construction. The term State should be considered equivalent to State highway agency. With regard to direct Federal contracts, references herein to SHA's shall be considered to refer to FHWA regional offices, as appropriate.
§ 230.409   Contract compliance review procedures.
(a) General. A compliance review consists of the following elements:
(1) Review Scheduling (Actions R-1 and R-2).
(2) Contractor Notification (Action R-3).
(3) Preliminary Analysis (Phase I) (Action R-4).
(4) Onsite Verification and Interviews (Phase II) (Action R-5).
(5) Exit Conference (Action R-6).
(6) Compliance Determination and Formal Notification (Actions R-8, R-9, R-10, R-11, R-12).
(b) Review scheduling. ( Actions R-1 and R-2 ). Because construction work forces are not constant, particular attention should be paid to the proper scheduling of equal opportunity compliance reviews. Priority in scheduling equal opportunity compliance reviews shall be given to reviewing those contractor's work forces:
(1) Which hold the greatest potential for employment and promotion of minorities and women (particularly in higher skilled crafts or occupations);
(2) Working in areas which have significant minority and female labor forces within a reasonable recruitment area;
(3) Working on projects that include special training provisions; and
(4) Where compliance with equal opportunity requirements is questionable. (Based on previous PR-1391's (23 CFR part 230, subpart A, appendix C) Review Reports and Hometown Plan Reports).
(5) Reviews specifically requested by the Washington Headquarters shall receive priority scheduling;
(6) Compliance Reviews in geographical areas covered by areawide plans would normally be reviewed under the Consolidated Compliance Review Procedures set forth in § 230.415.
(7) Reviews shall be conducted prior to or during peak employment periods.
(8) No compliance review shall be conducted that is based on a home office work force of less than 15 employees unless requested or approved by Washington Headquarters; and
(9) For compliance reviews based on an area work force (outside of areawide plan coverage), the Compliance Specialist shall define the applicable geographical area by considering:
(i) Union geographical boundaries;
(ii) The geographical area from which the contractor recruits employees, i.e. , reasonable recruitment area;
(iii) Standard Metropolitan Statistical Area (SMSA) or census tracts; and
(iv) The county in which the Federal or Federal-aid project(s) is located and adjacent counties.
(c) Contractor notification ( Action R-3 ). (1) The Compliance Specialist should usually provide written notification to the contractor of the pending compliance review at least 2 weeks prior to the onsite verification and interviews. This notification shall include the scheduled date(s), an outline of the mechanics and basis of the review, requisite interviews, and documents required.
(2) The contractor shall be requested to provide a meeting place on the day of the visit either at the local office of the contractor or at the jobsite.
(3) The contractor shall be requested to supply all of the following information to the Compliance Specialist prior to the onsite verification and interviews.
(i) Current Form PR-1391 developed from the most recent payroll;
(ii) Copies of all current bargaining agreements;
(iii) Copies of purchase orders and subcontracts containing the EEO clause;
(iv) A list of recruitment sources available and utilized;
(v) A statement of the status of any action pertaining to employment practices taken by the Equal Employment Opportunity Commission (EEOC) or other Federal, State, or local agency regarding the contractor or any source of employees;
(vi) A list of promotions made during the past 6 months, to include race, national origin, and sex of employee, previous job held, job promoted into; and corresponding wage rates;
(vii) An annotated payroll to show job classification, race, national origin and sex;
(viii) A list of minority- or female-owned companies contacted as possible subcontractors, vendors, material suppliers, etc.; and
(ix) Any other necessary documents or statements requested by the Compliance Specialist for review prior to the actual onsite visit.
(4) For a project review, the prime contractor shall be held responsible for ensuring that all active subcontractors are present at the meeting and have supplied the documentation listed in § 230.409(c)(3).
(d) Preliminary analysis ( Phase I ) ( Action R-4 ). Before the onsite verification and interviews, the Compliance Specialist shall analyze the employment patterns, policies, practices, and programs of the contractor to determine whether or not problems exist by reviewing information relative to:
(1) The contractor's current work force;
(2) The contractor's relationship with referral sources, e.g., unions, employment agencies, community action agencies, minority and female organizations, etc.;
(3) The minority and female representation of sources;
(4) The availability of minorities and females with requisite skills in a reasonable recruitment area;
(5) Any pending EEOC or Department of Justice cases or local or State Fair Employment Agency cases which are relevant to the contractor and/or the referral sources; and
(6) The related projects (and/or contractor) files of FHWA regional or division and State Coordinator's offices to obtain current information relating to the status of the contractor's project(s), value, scheduled duration, written corrective action plans, PR-1391 or Manpower Utilization Reports, training requirements, previous compliance reviews, and other pertinent correspondence and/or reports.
(e) Onsite verification and interviews ( Phase II ) ( Action R-5 ). (1) Phase II of the review consists of the construction or home office site visit(s). During the initial meeting with the contractor, the following topics shall be discussed:
(i) Objectives of the visit;
(ii) The material submitted by the contractor, including the actual implementation of the employee referral source system and any discrepancies found in the material; and
(iii) Arrangements for the site tour(s) and employee interviews.
(2) The Compliance Specialist shall make a physical tour of the employment site(s) to determine that:
(i) EEO posters are displayed in conspicuous places in a legible fashion;
(ii) Facilities are provided on a nonsegregated basis (e.g. work areas, washroom, timeclocks, locker rooms, storage areas, parking lots, and drinking fountains);
(iii) Supervisory personnel have been oriented to the contractor's EEO commitments;
(iv) The employee referral source system is being implemented;
(v) Reported employment data is accurate;
(vi) Meetings have been held with employees to discuss EEO policy, particularly new employees; and
(vii) Employees are aware of their right to file complaints of discrimination.
(3) The Compliance Specialist should interview at least one minority, one nonminority, and one woman in each trade, classification, or occupation. The contractor's superintendent or home office manager should also be interviewed.
(4) The Compliance Specialist shall, on a sample basis, determine the union membership status of union employees on the site (e.g. whether they have permits, membership cards, or books, and in what category they are classified [e.g., A, B, or C]).
(5) The Compliance Specialist shall also determine the method utilized to place employees on the job and whether equal opportunity requirements have been followed.
(6) The Compliance Specialist shall determine, and the report shall indicate the following:
(i) Is there reasonable representation and utilization of minorities and women in each craft, classification or occupation? If not, what has the contractor done to increase recruitment, hiring, upgrading, and training of minorities and women?
(ii) What action is the contractor taking to meet the contractual requirement to provide equal employment opportunity?
(iii) Are the actions taken by the contractor acceptable? Could they reasonably be expected to result in increased utilization of minorities and women?
(iv) Is there impartiality in treatment of minorities and women?
(v) Are affirmative action measures of an isolated nature or are they continuing?
(vi) Have the contractor's efforts produced results?
(f) Exit conference ( Action R-6 ). (1) During the exit conference with the contractor, the following topics shall be discussed:
(i) Any preliminary findings that, if not corrected immediately or not corrected by the adoption of an acceptable voluntary corrective action plan, would necessitate a determination of noncompliance;
(ii) The process and time in which the contractor shall be informed of the final determination (15 days following the onsite verification and interviews); and
(iii) Any other matters that would best be resolved before concluding the onsite portion of the review.
(2) Voluntary corrective action plans may be negotiated at the exit conference, so that within 15 days following the exit portion of the review, the Compliance Specialist shall prepare the review report and make a determination of either:
(i) Compliance, and so notify the contractor; or
(ii) Noncompliance, and issue a 30-day show cause notice.
(g) Compliance determinations ( Action R-8 ). (1) The evidence obtained at the compliance review shall constitute a sufficient basis for an objective determination by the Compliance Specialist conducting the review of the contractor's compliance or noncompliance with contractual provisions pursuant to E.O. 11246, as amended, and FHWA EEO Special Provisions implementing the Federal-Aid Highway Act of 1968, where applicable.
(2) Compliance determinations on contractors working in a Hometown Plan Area shall reflect the status of those crafts covered by part II of the plan bid conditions. Findings regarding part I crafts shall be transmitted through channels to the Washington Headquarters, Office of Civil Rights.
(3) The compliance status of the contractor will usually be reflected by positive efforts in the following areas:
(i) The contractor's equal employment opportunity (EEO) policy;
(ii) Dissemination of the policy and education of supervisory employees concerning their responsibilities in implementing the EEO policy;
(iii) The authority and responsibilities of the EEO officer;
(iv) The contractor's recruitment activities, especially establishing minority and female recruitment and referral procedures;
(v) The extent of participation and minority and female utilization in FHWA training programs;
(vi) The contractor's review of personnel actions to ensure equal opportunities;
(vii) The contractor's participation in apprenticeship or other training;
(viii) The contractor's relationship (if any) with unions and minority and female union membership;
(ix) Effective measures to assure nonsegregated facilities, as required by contract provisions;
(x) The contractor's procedures for monitoring subcontractors and utilization of minority and female subcontractors and/or subcontractors with substantial minority and female employment; and
(xi) The adequacy of the contractor's records and reports.
(4) A contractor shall be considered to be in compliance (Action R-9) when the equal opportunity requirements have been effectively implemented, or there is evidence that every good faith effort has been made toward achieving this end. Efforts to acheive this goal shall be result-oriented, initiated and maintained in good faith, and emphasized as any other vital management function.
(5) A contractor shall be considered to be in noncompliance (Action R-10) when:
(i) The contractor has discriminated against applicants or employees with respect to the conditions or privileges of employment; or
(ii) The contractor fails to provide evidence of every good faith effort to provide equal opportunity.
(h) Show cause procedures —(1) General. Once the onsite verification and exit conference (Action R-5) have been completed and a compliance determination made, (Action R-8), the contractor shall be notified in writing of the compliance determination. (Action R-11 or R-12) This written notification shall be sent to the contractor within 15 days following the completion of the onsite verification and exit conference. If a contractor is found in noncompliance (Action R-10), action efforts to bring the contractor into compliance shall be initiated through the issuance of a show cause notice (Action R-12). The notice shall advise the contractor to show cause within 30 days why sanctions should not be imposed.
(2) When a show cause notice is required. A show cause notice shall be issued when a determination of noncompliance is made based upon:
(i) The findings of a compliance review;
(ii) The results of an investigation which verifies the existence of discrimination; or
(iii) Areawide plan reports that show an underutilization of minorities (based on criteria of U.S. Department of Labor's Optional Form 66 “Manpower Utilization Report”) throughout the contractor's work force covered by part II of the plan bid conditions.
(3) Responsibility for issuance. (i) Show cause notices will normally be issued by SHA's to federally assisted contractors when the State has made a determination of noncompliance, or when FHWA has made such a determination and has requested the State to issue the notice.
(ii) When circumstances warrant, the Regional Federal Highway Administrator or a designee may exercise primary compliance responsibility by issuing the notice directly to the contractor.
(iii) The Regional Federal Highway Administrators in Regions 8, 10, and the Regional Engineer in Region 15, shall issue show cause notices to direct Federal contractors found in noncompliance.
(4) Content of show cause notice. The show cause notice must: (See sample—appendix A of this subpart)
(i) Notify the contractor of the determination of noncompliance;
(ii) Provide the basis for the determination of noncompliance;
(iii) Notify the contractor of the obligation to show cause within 30 days why formal proceedings should not be instituted;
(iv) Schedule (date, time, and place) a compliance conference to be held approximately 15 days from the contractor's receipt of the notice;
(v) Advise the contractor that the conference will be held to receive and discuss the acceptability of any proposed corrective action plan and/or correction of deficiencies; and
(vi) Advise the contractor of the availability and willingness of the Compliance Specialist to conciliate within the time limits of the show cause notice.
(5) Preparing and processing the show cause notice. (i) The State or FHWA official who conducted the investigation or review shall develop complete background data for the issuance of the show cause notice and submit the recommendation to the head of the SHA or the Regional Federal Highway Administrator, as appropriate.
(ii) The recommendation, background data, and final draft notice shall be reviewed by appropriate State or FHWA legal counsel.
(iii) Show cause notices issued by the SHA shall be issued by the head of that agency or a designee.
(iv) The notice shall be personally served to the contractor or delivered by certified mail, return receipt requested, with a certificate of service or the return receipt filed with the case record.
(v) The date of the contractor's receipt of the show cause notice shall begin the 30-day show cause period. (Action R-13).
(vi) The 30-day show cause notice shall be issued directly to the noncompliant contractor or subcontractor with an informational copy sent to any concerned prime contractors.
(6) Conciliation efforts during show cause period. (i) The Compliance Specialist is required to attempt conciliation with the contractor throughout the show cause time period. Conciliation and negotiation efforts shall be directed toward correcting contractor program deficiencies and initiating corrective action which will maintain and assure equal opportunity. Records shall be maintained in the State, FHWA division, or FHWA regional office's case files, as appropriate, indicating actions and reactions of the contractor, a brief synopsis of any meetings with the contractor, notes on verbal communication and written correspondence, requests for assistance or interpretations, and other relevant matters.
(ii) In instances where a contractor is determined to be in compliance after a show cause notice has been issued, the show cause notice will be recinded and the contractor formally notified (Action R-17). The FHWA Washington Headquarters, Office of Civil Rights, shall immediately be notified of any change in status.
(7) Corrective action plans. (i) When a contractor is required to show cause and the deficiencies cannot be corrected within the 30-day show cause period, a written corrective action plan may be accepted. The written corrective action plan shall specify clear unequivocal action by the contractor with time limits for completion. Token actions to correct cited deficiencies will not be accepted. (See Sample Corrective Action Plan—appendix B of this subpart)
(ii) When a contractor submits an acceptable written corrective action plan, the contractor shall be considered in compliance during the plan's effective implementation and submission of required progress reports. (Action R-15 and R-17).
(iii) When an acceptable corrective action plan is not agreed upon and the contractor does not otherwise show cause as required, the formal hearing process shall be recommended through appropriate channels by the compliance specialist immediately upon expiration of the 30-day show cause period. (Action R-16, R-18, R-19)
(iv) When a contractor, after having submitted an acceptable corrective action plan and being determined in compliance is subsequently determined to be in noncompliance based upon the contractor's failure to implement the corrective action plan, the formal hearing process must be recommended immediately. There are no provisions for reinstituting a show cause notice.
(v) When, however, a contractor operating under an acceptable corrective action plan carries out the provisions of the corrective action plan but the actions do not result in the necessary changes, the corrective action plan shall be immediately amended through negotiations. If, at this point, the contractor refuses to appropriately amend the corrective action plan, the formal hearing process shall be recommended immediately.
(vi) A contractor operating under an approved voluntary corrective action plan ( i.e. , plan entered into prior to the issuance of a show cause) must be issued a 30-day show cause notice in the situations referred to in paragraphs (h) (7) (iv) and (v) of this section, i.e. , failure to implement an approved corrective action plan or failure of corrective actions to result in necessary changes.
(i) Followup reviews. (1) A followup review is an extension of the initial review process to verify the contractors performance of corrective action and to validate progress report information. Therefore, followup reviews shall only be conducted of those contractors where the initial review resulted in a finding of noncompliance and a show cause notice was issued.
(2) Followup reviews shall be reported as a narrative summary referencing the initial review report.
(j) Hearing process. (1) When such procedures as show cause issuance and conciliation conferences have been unsuccessful in bringing contractors into compliance within the prescribed 30 days, the reviewer (or other appropriate level) shall immediately recommend, through channels, that the Department of Transportation obtain approval from the Office of Federal Contract Compliance Programs for a formal hearing (Action R-19). The Contractor should be notified of this action.
(2) Recommendations to the Federal Highway Administrator for hearing approval shall be accompanied by full reports of findings and case files containing any related correspondence. The following items shall be included with the recommendation:
(i) Copies of all Federal and Federal-aid contracts and/or subcontracts to which the contractor is party;
(ii) Copies of any contractor or subcontractor certifications;
(iii) Copy of show cause notice;
(iv) Copies of any corrective action plans; and
(v) Copies of all pertinent Manpower Utilization Reports, if applicable.
(3) SHA's through FHWA regional and division offices, will be advised of decisions and directions affecting contractors by the FHWA Washington Headquarters, Office of Civil Rights, for the Department of Transportation.
(k) Responsibility determinations. (1) In instances where requests for formal hearings are pending OFCCP approval, the contractor may be declared a nonresponsible contractor for inability to comply with the equal opportunity requirements.
(2) SHA's shall refrain from entering into any contract or contract modification subject to E.O. 11246, as amended, with a contractor who has not demonstrated eligibility for Government contracts and federally assisted construction contracts pursuant to E.O. 11246, as amended.
§ 230.411   Guidance for conducting reviews.
(a) Extensions of time. Reasonable extensions of time limits set forth in these instructions may be authorized by the SHA's or the FHWA regional office, as appropriate. However, all extensions are subject to Washington Headquarters approval and should only be granted with this understanding. The Federal Highway Administrator shall be notified of all time extensions granted and the justification therefor. In sensitive or special interest cases, simultaneous transmittal of reports and other pertinent documents is authorized.
(b) Contract completion. Completion of a contract or seasonal shutdown shall not preclude completion of the administrative procedures outlined herein or the possible imposition of sanctions or debarment.
(c) Home office reviews outside regions. When contractor's home offices are located outside the FHWA region in which the particular contract is being performed, and it is determined that the contractors' home offices should be reviewed, requests for such reviews with accompanying justification shall be forwarded through appropriate channels to the Washington Headquarters, Office of Civil Rights. After approval, the Washington Headquarters, Office of Civil Rights, (OCR) shall request the appropriate region to conduct the home office review.
(d) Employment of women. Executive Order 11246, as amended, implementing rules and regulations regarding sex discrimination are outlined in 41 CFR part 60-20. It is the responsibility of the Compliance Specialist to ensure that contractors provide women full participation in their work forces.
(e) Effect of exclusive referral agreements. (1) The OFCCP has established the following criteria for determining compliance when an exclusive referral agreement is involved;
(i) It shall be no excuse that the union, with which the contractor has a collective bargaining agreement providing for exclusive referral, failed to refer minority or female employees.
(ii) Discrimination in referral for employment, even if pursuant to provisions of a collective bargaining agreement, is prohibited by the National Labor Relations Act and Title VII of the Civil Rights Act of 1964, as amended.
(iii) Contractors and subcontractors have a responsibility to provide equal opportunity if they want to participate in federally involved contracts. To the extent they have delegated the responsibility for some of their employment practices to some other organization or agency which prevents them from meeting their obligations, these contractors must be found in noncompliance.
(2) If the contractor indicates that union action or inaction is a proximate cause of the contractor's failure to provide equal opportunity, a finding of noncompliance will be made and a show cause notice issued, and:
(i) The contractor will be formally directed to comply with the equal opportunity requirements.
(ii) Reviews of other contractors with projects within the jurisdiction of the applicable union locals shall be scheduled.
(iii) If the reviews indicate a pattern and/or practice of discrimination on the part of specific union locals, each contractor in the area shall be informed of the criteria outlined in § 230.411(e)(1) of this section. Furthermore, the FHWA Washington Headquarters, OCR, shall be provided with full documentary evidence to support the discriminatory pattern indicated.
(iv) In the event the union referral practices prevent the contractor from meeting the equal opportunity requirements pursuant to the E.O. 11246, as amended, such contractor shall immediately notify the SHA.
§ 230.413   Review reports.
(a) General. (1) The Compliance Specialist shall maintain detailed notes from the beginning of the review from which a comprehensive compliance review report can be developed.
(2) The completed compliance review report shall contain documentary evidence to support the determination of a contractor's or subcontractor's compliance status.
(3) Findings, conclusions, and recommendations shall be explicitly stated and, when necessary, supported by documentary evidence.
(4) The compliance review report shall contain at least the following information. 1 (Action R-20)
1 The Federal Highway Administration will accept completed Form FHWA-86 for the purpose. The form is available at the offices listed in 49 CFR part 7, appendix D.
(i) Complete name and address of contractor.
(ii) Project(s) identification.
(iii) Basis for the review, i.e. , area work force, project work force, home office work force, and target area work force.
(iv) Identification of Federal or Federal-aid contract(s).
(v) Date of review.
(vi) Employment data by job craft, classification, or occupation by race and sex in accordance with (iii) above. This shall be the data verified during the onsite.
(vii) Identification of local unions involved with contractor, when applicable.
(viii) Determination of compliance status: compliance or noncompliance.
(ix) Copy of show cause notice or compliance notification sent to contractor.
(x) Name of the Compliance Specialist who conducted the review and whether that person is a State, division or regional Compliance Specialist.
(xi) Concurrences at appropriate levels.
(5) Each contractor (joint venture is one contractor) will be reported separately. When a project review is conducted, the reports should be attached, with the initial report being that of the prime contractor followed by the reports of each subcontractor.
(6) Each review level is responsible for ensuring that required information is contained in the report.
(7) When a project review is conducted, the project work force shall be reported. When an areawide review is conducted (all Federal-aid, Federal, and non-Federal projects in an area), then areawide work force shall be reported. When a home office review is conducted, only home office work force shall be reported. Other information required by regional offices shall be detached before forwarding the reports to the Washington Headquarters, OCR.
(8) The Washington Headquarters, OCR, shall be provided all of the following:
(i) The compliance review report required by § 230.413(a)(4).
(ii) Corrective action plans.
(iii) Show cause notices or compliance notifications.
(iv) Show cause recissions.
(b) Administrative requirements —(1) State conducted reviews. (i) Within 15 days from the completion of the onsite verification and exit conference, the State Compliance Specialist will:
(A) Prepare the compliance review report, based on information obtained;
(B) Determine the contractor's compliance status;
(C) Notify the contractor of the compliance determination, i.e. , send the contractor either notification of compliance or show cause notice; and
(D) Forward three copies of the compliance review report, and the compliance notification or show cause notice to the FHWA division EEO Specialist.
(ii) Within 10 days of receipt, the FHWA division EEO Specialist shall:
(A) Analyze the State's report, ensure that it is complete and accurate;
(B) Resolve nonconcurrence, if any;
(C) Indicate concurrence, and, where appropriate, prepare comments; and
(D) Forward two copies of the compliance review report, and the compliance notification or show cause notice to the Regional Civil Rights Director.
(iii) Within 15 days of receipt, the FHWA Regional Civil Rights Director shall:
(A) Analyze the report, ensure that it is complete and accurate;
(B) Resolve nonconcurrence, if any;
(C) Indicate concurrence, and, where appropriate, prepare comments; and
(D) Forward one copy of the compliance review report, and the compliance notification or show cause notice to the Washington Headquarters, OCR.
(2) FHWA division conducted reviews. (i) Within 15 days from the completion of the onsite verification and exit conference, the division EEO Specialist shall:
(A) Prepare compliance review report, based on information obtained;
(B) Determine the contractor's compliance status;
(C) Notify the State to send the contractor the compliance determination, i.e. , either notification of compliance or show cause notice; and
(D) Forward two copies of the compliance review report and the compliance notification or show cause notice to the Regional Civil Rights Director.
(ii) Within 15 days of receipt, the FHWA Regional Civil Rights Director will take the steps outlined in § 230.413(b)(1)(iii).
(3) FHWA region conducted reviews. (i) Within 15 days from the completion of the onsite verification and exit conference the regional EEO Specialist shall:
(A) Prepare the compliance review report, based on information obtained;
(B) Determine the contractor's compliance status;
(C) Inform the appropriate division to notify the State to send the contractor the compliance determination i.e. , either notification of compliance or show cause notice; and
(D) Forward one copy of the compliance review report, and the compliance notification or show cause notice to the Washington Headquarters, OCR.
(4) Upon receipt of compliance review reports, the Washington Headquarters, OCR, shall review, resolve any nonconcurrences, and record them for the purpose of:
(i) Providing ongoing technical assistance to FHWA regional and division offices and SHA's;
(ii) Gathering a sufficient data base for program evaluation;
(iii) Ensuring uniform standards are being applied in the compliance review process;
(iv) Initiating appropriate changes in FHWA policy and implementing regulations; and
(v) Responding to requests from the General Accounting Office, Office of Management and Budget, Senate Subcommittee on Public Roads, and other agencies and organizations.
§ 230.415   Consolidated compliance reviews.
(a) General. Consolidated compliance reviews shall be implemented to determine employment opportunities on an areawide rather than an individual project basis. The consolidated compliance review approach shall be adopted and directed by either Headquarters, region, division, or SHA, however, consolidated reviews shall at all times remain a cooperative effort.
(b) OFCCP policy requires contracting agencies to ensure compliance, in hometown an imposed plan areas, on an areawide rather than a project basis. The consolidated compliance review approach facilitates implementation of this policy.
(c) Methodology —(1) Selection of a target area. In identifying the target area of a consolidated compliance review (e.g. SMSA, hometown or imposed plan area, a multicounty area, or an entire State), consideration shall at least be given to the following facts:
(i) Minority and female work force concentrations;
(ii) Suspected or alleged discrimination in union membership or referral practices by local unions involved in highway construction;
(iii) Present or potential problem areas;
(iv) The number of highway projects in the target area; and
(v) Hometown or imposed plan reports that indicate underutilization of minorities or females.
(2) Determine the review period. After the target area has been selected, the dates for the actual onsite reviews shall be established.
(3) Obtain background information. EEO-3's Local Union Reports, should be obtained from regional offices of the EEOC. Target area civilian labor force statistics providing percent minorities and percent females in the target area shall be obtained from State employment security agencies or similar State agencies.
(4) Identify contractors. Every nonexempt federally assisted or direct Federal contractor and subcontractor in the target area shall be identified. In order to establish areawide employment patterns in the target area, employment data is needed for all contractors and subcontractors in the area. However, only those contractors with significant work forces (working prior to peak and not recently reviewed) may need to be actually reviwed onsite. Accordingly, once all contractors are identified, those contractors which will actually be reviewed onsite shall be determined. Compliance determinations shall only reflect the status of crafts covered by part II of plan bid conditions. Employment data of crafts covered by part I of plan bid conditions shall be gathered and identified as such in the composite report, however, OFCCP has reserved the responsibility for compliance determinations on crafts covered by part I of the plan bid conditions.
(5) Contractor notification. Those contractors selected for onsite review shall be sent a notification letter as outlined in § 230.409(c) along with a request for current workforce data 2 for completion and submission at the onsite review. Those contractors in the target area not selected for onsite review shall also be requested to supply current workforce data as of the onsite review period, and shall return the data within 15 days following the onsite review period.
2 The Consolidated Workforce Questionnaire is convenient for the purpose and appears as attachment 4 to volume 2, chapter 2, section 3 of the Federal-Aid Highway Program Manual, which is available at the offices listed in 49 CFR part 7, appendix D.
(6) Onsite reviews. Compliance reviews shall then be conducted in accordance with the requirements set forth in § 230.409. Reviewers may use Form FHWA-86, Compliance Data Report, if appropriate. It is of particular importance during the onsite reviews that the review team provide for adequate coordination of activities at every stage of the review process.
(7) Compliance determinations. Upon completion of the consolidated reviews, compliance determinations shall be made on each review by the reviewer. Individual show cause notices or compliance notifications shall be sent (as appropriate) to each reviewed contractor.
(d) Reporting —(1) Composite report. A final composite report shall be submitted as a complete package to the Washington Headquarters, OCR, within 45 days after the review period and shall consist of the following:
(i) Compliance review report, for each contractor and subcontractor with accompanying show cause notice or compliance notification.
(ii) Work force data to show the aggregate employment of all contractors in the target area.
(iii) A narrative summary of findings and recommendations to include the following:
(A) A summary of highway construction employment in the target area by craft, race, and sex. This summary should explore possible patterns of discrimination or underutilization and possible causes, and should compare the utilization of minorities and females on contractor's work forces to the civilian labor force percent for minorities and females in the target area.
(B) If the target area is a plan area, a narrative summary of the plan's effectiveness with an identification of part I and part II crafts. This summary shall discuss possible differences in minority and female utilization between part I and part II crafts, documenting any inferences drawn from such comparisons.
(C) If applicable, discuss local labor unions' membership and/or referral practices that impact on the utilization of minorities and females in the target area. Complete and current copies of all collective bargaining agreements and copies of EEO-3, Local Union Reports, for all appropriate unions shall accompany the composite report.
(D) Any other appropriate data, analyses, or information deemed necessary for a complete picture of the areawide employment.
(E) Considering the information compiled from the summaries listed above, make concrete recommendations on possible avenues for correcting problems uncovered by the analyses.
(2) Annual planning report. The proper execution of consolidated compliance reviews necessitates scheduling, along with other fiscal program planning. The Washington Headquarters, OCR, shall be notified of all planned consolidated reviews by August 10 of each year and of any changes in the target area or review periods, as they become known. The annual consolidated planning report shall indicate:
(i) Selected target areas:
(ii) The basis for selection of each area; and
(iii) The anticipated review period (dates) for each target area.