[Federal Register Volume 78, Number 185 (Tuesday, September 24, 2013)]
[Rules and Regulations]
[Pages 58682-58752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-21228]



[[Page 58681]]

Vol. 78

Tuesday,

No. 185

September 24, 2013

Part III





Department of Labor





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 Office of Federal Contract Compliance Programs





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41 CFR Part 60-741





Affirmative Action and Nondiscrimination Obligations of Contractors and 
Subcontractors Regarding Individuals With Disabilities; Final Rule

  Federal Register / Vol. 78 , No. 185 / Tuesday, September 24, 2013 / 
Rules and Regulations  

[[Page 58682]]


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DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs

41 CFR Part 60-741

RIN 1250-AA02


Affirmative Action and Nondiscrimination Obligations of 
Contractors and Subcontractors Regarding Individuals With Disabilities

AGENCY: Office of Federal Contract Compliance Programs, Labor.

ACTION: Final rule.

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SUMMARY: The Office of Federal Contract Compliance Programs (OFCCP) is 
publishing revisions to the current regulations implementing the non-
discrimination and affirmative action regulations of section 503 of the 
Rehabilitation Act of 1973, as amended. Section 503 prohibits 
discrimination by covered Federal contractors and subcontractors 
against individuals on the basis of disability, and requires 
affirmative action on behalf of qualified individuals with 
disabilities.
    The final rule adopts several key revisions proposed in the notice 
of proposed rulemaking. The final rule strengthens the affirmative 
action provisions by, among other things, requiring data collection 
pertaining to applicants and hires with disabilities, and establishing 
a utilization goal for individuals with disabilities to assist in 
measuring the effectiveness of the contractor's affirmative action 
efforts. However, some of the NPRM's proposals, particularly with 
regard to the creation and maintenance of certain records and the 
conduct of certain affirmative action obligations, have been eliminated 
or made more flexible in order to reduce the compliance burden on 
contractors. To implement changes necessitated by the passage of the 
ADA Amendments Act (ADAAA) of 2008, the final rule also adopts 
revisions to the definitions and to the nondiscrimination provisions of 
the implementing regulations. The specific revisions made, and the 
rationale for making them, are set forth in the Section-by-Section 
Analysis below.

DATES: Effective Date: These regulations are effective March 24, 2014.

FOR FURTHER INFORMATION CONTACT: Debra A. Carr, Director, Division of 
Policy, Planning and Program Development, Office of Federal Contract 
Compliance Programs, at 200 Constitution Avenue NW., Room C-3325, 
Washington, DC 20210, or call (202) 693-0104 (voice) or (202) 693-1337 
(TTY). Copies of this rule in alternative formats may be obtained by 
calling (202) 693-0103 (voice) or (202) 693-1337 (TTY). The alternative 
formats available are large print and electronic file on computer disk. 
The rule also is available on the Internet on the Regulations.gov Web 
site at http://www.regulations.gov or on the OFCCP Web site at http://www.dol.gov/ofccp.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    The Office of Federal Contract Compliance Programs (OFCCP) is a 
civil rights, worker protection agency which enforces one Executive 
Order and two laws that prohibit employment discrimination and require 
affirmative action by companies doing business with the Federal 
Government.\1\ Specifically, Federal contractors must engage in 
affirmative action and provide equal employment opportunity without 
regard to race, color, religion, sex, national origin, disability, or 
status as a protected veteran. Executive Order 11246, as amended, 
prohibits employment discrimination on the basis of race, religion, 
color, national origin, and sex. The Vietnam Era Veterans' Readjustment 
Assistance Act of 1974 (VEVRAA), as amended, prohibits employment 
discrimination against certain protected veterans. Section 503 of the 
Rehabilitation Act of 1973 (section 503), as amended, prohibits 
employment discrimination against individuals with disabilities.
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    \1\ Executive Order 11246, as amended; Section 503 of the 
Rehabilitation Act of 1973, as amended, (section 503), and the 
Vietnam Era Veterans' Readjustment Assistance Act of 1974, as 
amended, 38 U.S.C. 4212 (VEVRAA).
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    OFCCP evaluates the employment practices of over 4,000 Federal 
contractors and subcontractors annually and investigates individual 
complaints. OFCCP also engages in outreach to employees of Federal 
contractors to educate them about their rights, and provides technical 
assistance to contractors on their nondiscrimination and affirmative 
action obligations. We estimate that our jurisdiction covers 
approximately 200,000 Federal contractor establishments, and more than 
45,000 parent companies.\2\
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    \2\ This establishment estimate is based on a review of FY 2009 
EEO-1 contractor establishment data and other contractor databases, 
including the Federal Procurement Data System (FPDS). Based on EEO-1 
data, we determined that the ratio of parent companies to the number 
of establishments is approximately four establishments per parent 
company.
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    Employment discrimination and underutilization of qualified 
workers, such as individuals with disabilities and veterans, contribute 
to broader societal problems such as income inequality and poverty. The 
median household income for ``householders'' with a disability, aged 18 
to 64, was $25,420 compared with a median income of $59,411 for 
households with a householder who did not report a disability.\3\ 
Controlling for age and race we find that workers with a disability, on 
average, earn less than private sector workers without a disability. 
The mean hourly wage of those with a disability is $17.62 (with a 
median of $13.73) compared to $21.67 (median $16.99) for those without 
a disability.\4\ Controlling for age and race, male workers with a 
disability earn 23 percent less than males without a disability. The 
disability gap for females is 20 percent.\5\ While 28.8 percent of 
individuals, ages 18 to 64, with a disability were in poverty in 2011, 
the data show that 12.5 percent of those individuals without a 
disability were in poverty.\6\
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    \3\ Income, Poverty and Health Insurance Coverage in the United 
States: 2011, Current Population Reports, issued September 2012, 
http://www.census.gov/prod/2012pubs/p60-243.pdf (last accessed July 
8, 2013), p. 10. A ``householder'' is the person (or one of the 
people) in whose name the home is owned or rented and the person to 
whom the relationship of other household members is recorded. 
Typically, it is the head of a household. Only one person per 
household is designated the ``householder.''
    \4\ OFCCP ran wage regressions using the natural log of 
effective hourly wages calculated as real income divided by usual 
hours per week and weeks per year. The weeks per year variable is 
categorical so the midpoint of each category was used as a proxy for 
the number of weeks worked. Explanatory variables include age and 
race. The sample was restricted to individuals aged 18 to 64 
employed in the private sector. Individuals currently in the armed 
forces were not included in the sample. All OFCCP models used ACS 
2008-2010 Public Use Microdata (PUMS).
    \5\ Id.
    \6\ Income, Poverty and Health Insurance Coverage in the United 
States: 2011, Current Population Reports, issued September 2012, 
http://www.census.gov/prod/2012pubs/p60-243.pdf (last accessed July 
8, 2013)
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    Based on our analysis of the American Community Survey (ACS) 2008-
2010 Public Use Microdata (PUMS), and controlling for age and race we 
found that: \7\
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    \7\ OFCCP ran wage regressions using the natural log of 
effective hourly wages calculated as real income divided by usual 
hours per week and weeks per year. The weeks per year variable is 
categorical so the midpoint of each category was used as a proxy for 
the number of weeks worked. Explanatory variables include age and 
race. The sample was limited to individuals aged 18 to 64 employed 
in the private sector. All OFCCP models used ACS 2008-2010 Public 
Use Microdata (PUMS).
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     Males with disability had a 7.2 percentage point higher 
unemployment rate than males without a disability.
     Females with disability had a 6.5 percentage point higher 
unemployment rate than females without a disability.

[[Page 58683]]

     Females with a disability had a 29.2 percentage point 
higher probability of not being in the labor force than females without 
a disability.

A 2009 report found that ``having a disability is associated with lower 
earnings due to decreased ability to work, prejudice, and other 
factors.'' \8\ There are a number of hypotheses concerning disparities 
in labor force participation, employment rates, and wages. While 
knowledge of opportunities, differences in access and attainment of 
training and education, and underutilization of individuals with 
disabilities likely contribute to these disparities, the culture of the 
typical workplace and discrimination are also factors in some 
employment settings. However, there is little empirical data upon which 
to base targeted interventions. Data collection remains a critical 
need.
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    \8\ Changing Demographic Trends that Affect the Workplace and 
Implications for People with Disabilities, Executive Summary (Nov. 
30, 2009), p. 4. ``Studies agree that disability incidence is 
related to income and earnings. A number of intertwined 
relationships, however, make it somewhat difficult to sort out cause 
and effect.''
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    The final rule is intended to provide contractors with the tools 
needed to evaluate their own compliance and proactively identify and 
correct any deficiencies in their employment practices. Because the 
existing regulations implementing section 503 do not provide 
contractors with adequate tools to assess whether they are complying 
with their nondiscrimination and affirmative action obligations to 
recruit and employ qualified individuals with disabilities, the 
revisions of the final rule will assist contractors in averting 
potentially expensive violation findings by OFCCP.

I. Statement of Legal Authority

    Enacted in 1973, the purpose of section 503 of the Rehabilitation 
Act, as amended, is twofold. First, section 503 prohibits employment 
discrimination on the basis of disability by Federal Government 
contractors and subcontractors. Second, it requires each covered 
Federal Government contractor and subcontractor to take affirmative 
action to employ and advance in employment qualified individuals with 
disabilities.
    The nondiscrimination and general affirmative action requirements 
of section 503 apply to all Government contractors with contracts or 
subcontracts in excess of $10,000 for the purchase, sale, or use of 
personal property or nonpersonal services (including construction). See 
41 CFR 60-741.4. The requirement to prepare and maintain an affirmative 
action program, the specific obligations of which are described at 41 
CFR 60-741.44, apply to those contractors that have a contract or 
subcontract of $50,000 or more and 50 or more employees.
    In the section 503 context, receipt of a Federal contract comes 
with a number of responsibilities, including compliance with the 
section 503 nondiscrimination and anti-retaliation provisions, 
meaningful and effective efforts to recruit and employ individuals with 
disabilities, creation and enforcement of personnel policies that 
support the contractor's affirmative action efforts, maintenance of 
accurate records on its affirmative action efforts, and OFCCP access to 
these records upon request. Failure to abide by these responsibilities 
may result in various sanctions, including withholding of progress 
payments, termination of contracts, and debarment from receiving future 
contracts.

II. Major Provisions

    The following major provisions in the Final Rule would:
     Establish, for the first time, a 7 percent workforce 
utilization goal for individuals with disabilities. This goal is not a 
quota or a ceiling that limits or restricts the employment of 
individuals with disabilities. Instead, the goal is a management tool 
that informs decision-making and provides real accountability. Failing 
to meet the disability utilization goal, alone, is not a violation of 
the regulation and it will not lead to a fine, penalty, or sanction. 
OFCCP is mindful that smaller contractors may find it more difficult to 
attain the goal in each of their job groups. Therefore, the final rule 
permits contractors with a total workforce of 100 or fewer employees to 
apply the 7 percent goal to their entire workforce, rather than to each 
job group.
     Require contractors to invite applicants to voluntarily 
self-identify as an individual with a disability at the pre-offer stage 
of the hiring process, in addition to the existing requirement that 
contractors invite applicants to voluntarily self-identify after 
receiving a job offer. The purpose of this data collection is to 
provide contractors with useful information about the extent to which 
their outreach and recruitment efforts are effectively reaching people 
with disabilities.
     Require contractors to invite incumbent employees to 
voluntarily self-identify on a regular basis. The status of employees 
may change and a regular invitation to self-identify provides employees 
a way to self-identify for the first time, or to change their 
previously reported status. Providing a regular invitation should 
contribute to increased self-identification rates. Improving data 
collection is important to assessing employment practices.
     Require contractors to maintain several quantitative 
measurements and comparisons for the number of individuals with 
disabilities who apply for jobs and the number of individuals with 
disabilities they hire in order to create greater accountability for 
employment decisions and practices. Having this data will enable 
contractors and OFCCP to evaluate the effectiveness of contractors' 
outreach and recruitment efforts, and examine hiring and selection 
processes related to individuals with disabilities.
     Require prime contractors to include specific, mandated 
language in their subcontracts in order to provide knowledge and 
increase compliance by alerting subcontractors to their 
responsibilities as Federal contractors.
     Implement changes necessitated by the passage of the ADA 
Amendments Act (ADAAA) of 2008 by revising the definition of 
``disability'' and certain nondiscrimination provisions of the 
implementing regulations.

III. Cost and Benefits

    This is an economically significant and major rule. Individuals 
with disabilities make up 4.83 percent of the employed.\9\ The section 
503 rule establishes a utilization goal for employing individuals with 
disabilities of 7 percent. To meet the goal, OFCCP estimates that 
Federal contractors would hire an additional 594,580 individuals with 
disabilities. There are tangible and intangible benefits from investing 
in the recruitment and hiring of individuals with disabilities. Among 
them are employer tax credits, access to a broader talent pool, an 
expanded pool of job applicants, access to new markets by developing a 
workforce that mirrors the general customer base, lower turnover based 
on increased employee loyalty, and lower training costs resulting from 
lower staff turnover.\10\ According to the U.S. Business Leadership 
Network (USBLN), ``corporate CEOs understand that it's cost effective 
to recruit and retain the best talent regardless of

[[Page 58684]]

disability.'' \11\ Broad public policy considerations also exist 
related to the decreased demand for and cost of social services as more 
people move into jobs and pay taxes.
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    \9\ U.S. Census Bureau, 2011 American Community Survey. There 
are a variety of sources for this estimate. The Current Population 
Survey estimates a lower rate, 3.5 percent, and the Survey of Income 
and Program Participation estimates 9.4 percent.
    \10\ Job Accommodation Network, ``Workplace Accommodations: Low 
Cost, High Impact,'' Sept. 1, 2012. Accommodation and Compliance 
Series, http://askjan.org/media/lowcosthighimpact.html (last 
accessed Aug. 9, 2013).
    \11\ USBLN Disability at Work, and U.S. Chamber of Commerce, 
``Leading Practices on Disability Inclusion,'' http://www.usbln.org/pdf-docs/Leading_Practices_on_Disability_Inclusion.pdf (last 
accessed Aug. 9, 2013). The USBLN and Chamber report shares best 
practices from larger corporations for hiring and providing 
reasonable accommodations.
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    These projected hires, some of whom will require reasonable 
accommodation, will not add significant costs for the employers. The 
requirement to provide reasonable accommodation exists under the ADA, 
and now exists under the ADA Amendments Act for employers. This is not 
a new obligation created by this rule. According to a study conducted 
by the Job Accommodation Network (JAN), of the employers who gave the 
researchers cost information related to accommodations they had 
provided, 57 percent said the accommodations needed by employees cost 
absolutely nothing.\12\ For 43 percent of employers, the typical one-
time expenditure by employers to provide a reasonable accommodation was 
$500. Finally, 2 percent reported that accommodations required a 
combination of one-time and annual costs.
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    \12\ Job Accommodation Network, ``Workplace Accommodations: Low 
Cost, High Impact,'' Sept. 1, 2012. Accommodation and Compliance 
Series, http://askjan.org/media/lowcosthighimpact.html (last 
accessed Aug. 9, 2013), p.3; ``Fast Facts: Reasonable Accommodations 
& The Americans with Disabilities Act,'' U.S. Chamber of Commerce & 
the Virginia Commonwealth University, Rehabilitation Research and 
Training Center on Workplace Supports, http://www.worksupport.com/Topics/downloads/rrtcfactsheet2.pdf.
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    In projecting the overall increase in Federal contractor employment 
of protected veterans under the VEVRAA rule and individuals with 
disabilities under the section 503 rule, there is likely to be an 
interaction between the two categories. Some of the newly hired 
individuals with disabilities will likely be protected veterans. There 
are 5.78 million people 18 years or older in the labor force with a 
disability, 822,000, or 14.21 percent, of whom are veterans.\13\
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    \13\ Calculation based on unpublished table, Employment status 
of persons 18 years and over by veteran status, period of service, 
sex, race, Hispanic or Latino ethnicity, and disability status, 
Annual Average 2012 (Source: Current Population Survey).
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    To meet the section 503 rule's utilization goal of 7 percent, 
Federal contractors would have to hire an additional 594,580 
individuals with disabilities. Assuming that the number of disabled 
veterans hired will be proportional to their share of the disabled 
labor force, then we estimate that 84,490 of the newly hired 
individuals with disabilities will also be protected veterans.\14\ 
Subtracting 84,490 protected veterans from the target of 205,500 leaves 
121,010 non-disabled veterans needed to meet the hiring goal. Viewed 
independently, Federal contractors under VEVRAA would employ an 
additional 205,500 protected veterans and under section 503 employ an 
additional 594,580 individuals with disabilities. In the aggregate, we 
anticipate the overall number of hires across both rules will be closer 
to 715,590. We adjust the reasonable accommodation cost estimates based 
on the aforementioned assumptions. The total cost of providing 
reasonable accommodation to employees with disabilities who are not 
protected veterans is $114,770,291 in the year the target is met and 
$48,524,879 in recurring costs. The requirement to provide reasonable 
accommodation, however, existed under the ADA, and now exists under the 
ADAAA for employers. This is not a new obligation created by this rule. 
Nonetheless, the estimated cost of providing reasonable accommodations 
is included in this rule.
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    \14\ Because of data limitations, OFCCP is using the share of 
veterans as a proxy for ``protected'' veterans. For more information 
on the difference between protected and unprotected veterans, please 
visit, http://www.dol.gov/ofccp/regs/compliance/factsheets/vetrights.htm#Q2
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    Employers often think providing a reasonable accommodation is more 
costly than it actually is. Sometimes an accommodation may be something 
as simple as allowing someone to have their instructions tape recorded, 
or allowing someone to wear ear phones so they are not distracted by 
noise around them, or allowing someone an empty office as space when 
they have difficulty with concentration or attention span. Employers 
must provide effective accommodations but are not expected to create an 
undue hardship for themselves by doing so. Individuals seeking 
reasonable accommodation beyond what is effective have the option of 
paying the difference between the cost of the more expensive 
accommodation and the cost of what the employer will pay for the 
effective reasonable accommodation.

------------------------------------------------------------------------
                                      Final rule low
                                           \15\         Final rule high
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Total Cost........................       $349,510,926       $659,877,833
Cost Per Company..................              7,550              9,716
Cost Per Establishment............              2,040              2,626
Cost Per New Hire.................                588              1,110
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\15\ The high cost estimates in this chart are based on a contractor
  establishment count of 251.300 and 67,919 companies while the low
  estimates are based on 171,275 establishments and 46,291 companies.

    Present value costs over ten years for the final rule range from 
$1.84 billion to $3.91 billion using a 3 percent discount rate. If we 
use a 7 percent discount rate then the present value costs range from 
$1.53 billion to $3.25 billion. Annualizing these costs yields a cost 
range of $215 million to $459 million at the 3 percent discount rate 
and $218 million to $463 million using a 7 percent discount rate.

------------------------------------------------------------------------
                                   7% Discount rate    3% Discount rate
------------------------------------------------------------------------
Benefits........................  Not Quantified....  Not Quantified
Costs...........................  $1.53 billion to    $1.84 billion to
                                   $3.25 billion.      $3.91 billion
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Introduction

    Strengthening the implementing regulations of section 503, whose 
stated purpose ``requires Government contractors and subcontractors to 
take affirmative action to employ and advance in employment qualified 
individuals with disabilities,'' is an important means by which the 
Government can contribute to reducing the employment disparity between 
those with and without disabilities. The objective of these regulations 
is to ensure that employers doing business with the Federal Government 
do not discriminate and that they take affirmative action to recruit, 
hire, promote and retain individuals with disabilities. More 
specifically, the final

[[Page 58685]]

rule has the potential to reduce the employment gap in a number of 
ways. It adds and strengthens affirmative action requirements designed 
to improve outreach and recruitment of qualified individual with 
disabilities; establishes an aspirational goal for the employment of 
qualified individuals with disabilities that will allow contractors to 
measure and improve (where appropriate) the effectiveness of those 
affirmative efforts; provides for greater accountability regarding 
employment of individuals with disabilities through collection of 
several quantitative measures; and provides stronger dissemination of 
contractor obligations to subcontractors and unions. These measures, 
taken together, are designed to bring more qualified individuals with 
disabilities into the Federal contractor workforce and provide them 
with an equal opportunity to advance in employment.
    OFCCP published a Notice of Proposed Rulemaking (NPRM) in the 
Federal Register on December 9, 2011 (76 FR 77056), seeking comment on 
a number of proposals that would strengthen the regulations 
implementing section 503. The NRPM was published for a 60-day public 
comment period. The NPRM proposed specific actions that contractors and 
subcontractors must satisfy to meet their section 503 obligations, 
including increased data collection obligations, and the establishment 
of a utilization goal for individuals with disabilities. After 
receiving several requests to extend the public comment period, OFCCP 
published a subsequent notice in the Federal Register on February 10, 
2012 (77 FR 7108), extending the public comment period an additional 14 
days.
    OFCCP received more than 400 comments on the NPRM. Commenters 
represented diverse perspectives including: 185 individuals; 105 
contractors; 41groups representing contractors; 48 disability and 
veterans' rights advocacy groups; and 11 governmental entities. The 
commenters raised a broad range of issues, including concerns with the 
cost and burden associated with the proposed rule, the extended 
recordkeeping requirements, the proposed utilization goal, and the new 
categories of data collection and analyses. OFCCP carefully considered 
all comments in the development of this final rule.
    Pursuant to Executive Order (EO) 13563, the final rule was 
developed through a process that involved public participation. Indeed, 
prior to issuing an NPRM, OFCCP had previously issued an Advanced 
Notice of Proposed Rulemaking (ANPRM), 75 FR 43116 (July 23, 2010), 
requesting public comment regarding potential ways to strengthen the 
section 503 affirmative action regulations. During 2010 and 2011, OFCCP 
also conducted multiple town hall meetings, webinars, and listening 
sessions with individuals from the contractor community, state 
employment services, disability organizations, and other interested 
parties to understand the features of the section 503 regulations that 
work well, those that can be improved, and possible new requirements 
that could help to effectuate the overall objective of increasing 
employment opportunities for individuals with disabilities with Federal 
contractors.

Compliance With the Final Rule

    Although this final rule becomes effective 180 days after 
publication, full compliance with the requirements of this final rule 
by current contractors will be phased in as follows. Current 
contractors subject to subpart C of the existing 41 CFR part 60-741 
regulations that have written affirmative action programs (AAP) 
prepared pursuant to those regulations in place on the effective date 
of this final rule may maintain that AAP for the duration of their AAP 
year. Such contractors are required to update their affirmative action 
programs to come into compliance with the requirements of subpart C of 
this final rule at the start of their next standard 12-month AAP review 
and updating cycle. OFCCP will verify compliance with the requirements 
of this final rule when a contractor is selected for a compliance 
evaluation pursuant to Sec.  60-741.60 or subject to a complaint 
investigation pursuant to Sec.  60-741.61.

Overview of the Final Rule

    The final rule incorporates several of the changes proposed in the 
NPRM. However, in order to focus the scope of the final rule more 
closely on key issues, and in an effort to reduce the burden of 
compliance on contractors, the final rule also revises or declines to 
adopt some of the NPRM's proposals.
    The final rule strengthens the affirmative action provisions for 
Federal contractors in a number of ways. The rule addresses the 
increased use of technology in the workplace by allowing for the 
electronic posting of employee rights and contractor obligations, and 
by codifying contractors' reasonable accommodation obligation to ensure 
that any use of electronic job application systems do not result in the 
denial of equal employment opportunity to individuals with 
disabilities. Further, the regulations establish a utilization goal, 
and increase data collection pertaining to applicants and hires, 
including modifying and standardizing the requirement to invite 
applicants and existing employees to self-identify as individuals with 
a disability. These revisions will help contractors better evaluate 
their outreach and recruitment efforts, and to modify them as needed, 
toward the end of increasing employment opportunities for individuals 
with disabilities by Federal contractors and subcontractors. 
Additionally, as proposed in the NPRM, changes necessitated by the 
passage of the ADA Amendments Act (ADAAA) of 2008, Public Law110-325, 
and the subsequent amendment by the Equal Employment Opportunity 
Commission (EEOC) of their implementing regulations at 29 CFR part 1630 
have been made to the rule's definitions and nondiscrimination 
provisions.
    OFCCP revised or eliminated a number of provisions from the NPRM in 
response to the comments that were received, particularly with regard 
to the cost and burden of the rule, recordkeeping requirements, data 
collection and analyses, and the goal. These changes are discussed in 
full in the Section-by-Section Analysis. However, a summary of the most 
significant provisions is below.
    OFCCP received approximately 130 comments concerning the burdens 
and costs of the proposed rule from contractor groups, contractors, 
individuals and government entities. Many of these commenters stated 
that OFCCP's estimates of costs and hours were too low. A few 
commenters also suggested that OFCCP's contractor universe was too 
small. In response to these concerns, OFCCP modified the burden and 
cost estimates for the final rule. These changes provide a more 
accurate estimation of the burden and costs associated with the final 
rule. As discussed in the NPRM, the overall contractor universe of 
171,275 contractor and subcontractor establishments was derived from 
the Fiscal Year 2009 Employer Information Report EEO-1 (EEO-1), the 
Federal Procurement Data System-Next Generation (FPDS-NG) report data 
on contractor establishments, and other pertinent information. OFCCP 
notes that there were comments on the contractor universe recommending 
an establishment count of 285,390 using the Veterans Employment 
Training Services (VETS) annual report. While OFCCP declines to 
exclusively rely on the VETS report number, we present an estimated 
high end for the range of the cost of the rule based on a contractor

[[Page 58686]]

establishment number of 251,300. This number is based on 2010 VETS data 
from their pending Information Collection Request.\16\ As discussed in 
more detail below, OFCCP also made key changes to the recordkeeping 
requirements to minimize the burden on contractors.
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    \16\ OMB Control Number 1293-0005, Federal Contractor Veterans' 
Employment Report, VETS-100/VETS-100A, http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201104-1293-003 (last accessed 
Aug. 13, 2013).
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    The NPRM proposed that contractors maintain data pursuant to 
Sec. Sec.  60-741.44(f)(4) (linkage agreements and other outreach and 
recruiting efforts) and 60-741.44(k) (collection of applicant and hire 
data) for five years. More than 50 commenters opposed these provisions. 
Several of the commenters were particularly concerned about the burden 
associated with the five-year requirement. In response, OFCCP has 
reduced the proposed five-year recordkeeping requirement to three years 
in the final rule. Further, in light of the comments we received, the 
final rule does not incorporate the proposal in Sec.  60-741.44(k) of 
the NPRM to maintain data related to referrals from State agencies and 
other organizations. Commenters expressed concern with this 
requirement, indicating that State agencies either cannot provide data 
or provide data inconsistently across the states. In reviewing the 
practical utility of the referral data in light of the burden that it 
would create on contractors, OFCCP has eliminated the requirement to 
collect and analyze referral data. Eliminating the referral data 
requirement and reducing the length of recordkeeping minimizes the 
burden on contractors, while still requiring contractors to keep 
adequate records to aid and inform their outreach and recruitment 
efforts.
    The NPRM also proposed to require many of the affirmative action 
efforts that are only suggested in Sec.  60-741.44 of the existing 
rule. Among these were proposals requiring contractors to: review 
personnel processes on an annual basis (Sec.  60-741.44(b)); review 
physical and mental qualification standards on an annual basis (Sec.  
60-741(c)); establish linkage agreements with three disability-related 
agencies or organizations to increase connections between contractors 
and individuals with disabilities seeking employment (Sec.  60-
741.44(f)); take certain specified actions to internally disseminate 
its affirmative action policy (Sec.  60-741.44(g)); and train personnel 
on specific topics related to the employment of individuals with 
disabilities (Sec.  60-741.44(j)). After consideration of the comments 
and taking into account the expected utility of these provisions in 
light of the burden that contractors would incur to comply with the 
proposals, OFCCP decided not to incorporate the majority of these 
proposals into the final rule, and instead retains the language in the 
existing rule. These NPRM proposals, for the most part, would have 
required certain specific actions contractors must take to fulfill 
their already existing, general affirmative action obligations. These 
general affirmative action obligations--reviewing personnel processes 
and qualification standards on a periodic basis, undertaking 
appropriate outreach and positive recruitment activities, developing 
internal procedures to disseminate affirmative action policies, and 
training its employees on these policies--remain in the final rule. By 
eliminating the specific provisions but maintaining the general 
affirmative action obligations, the final rule provides the contractor 
flexibility and lesser burden, while still requiring the maintenance 
and implementation of a robust affirmative action program.
    The final rule adopts, but modifies, the proposed establishment of 
a national utilization goal for individuals with disabilities. The NPRM 
proposed to establish a single utilization goal of 7 percent per job 
group. OFCCP also requested public comment on several issues, including 
the possible establishment of a sub-goal for specific targeted 
disabilities, the availability of alternative data sources, and a range 
of potential goal values between 4 percent and 10 percent and the 
justification for their use. As discussed in more detail in the 
preamble to Sec.  60-741.45, below, OFCCP received approximately 250 
comments on the proposed goal. Disability and veterans' organizations, 
as well as many individuals, supported the establishment of a goal, 
while most contractors and employer associations were generally 
opposed. Most commenters who opposed the proposed goal asserted that 
any goal would be arbitrary and ineffective because of deficiencies in 
source data regarding the availability of qualified individuals with 
disabilities. In addition, some commenters stated their belief that the 
goals were illegal quotas and would adversely impact other protected 
groups. Supporters of the goal argued that the establishment of a goal 
was long overdue, given the long history of employment discrimination 
against individuals with disabilities, and the extremely low 
participation rate of people with disabilities in the labor force. The 
final rule retains the 7 percent per job group national utilization 
goal, but declines to adopt a sub-goal at this time. In response to 
commenters, the final rule clarifies that the failure to meet the goal, 
in and of itself, is not a violation of this part, and what contractors 
must do when the goal is not met. More specifically, the final rule 
identifies steps for the contractor to take to ascertain whether there 
are impediments to equal employment opportunity and, if impediments are 
found, to correct any identified problems. If no impediments are 
identified, then no corrective action is required. The goal is not a 
rigid and inflexible quota which must be met, nor is it to be 
considered either a ceiling or a floor for the employment of particular 
groups. Quotas are expressly forbidden.
    The NPRM proposed substantial changes to the requirement that 
contractors invite applicants to self-identify as individuals with 
disabilities by adding to the existing post-offer invitation 
requirement both a pre-offer invitation requirement and an annual 
survey of all employees. It also detailed proposed mandatory language 
for these invitations. As discussed in detail in the Section-by-Section 
Analysis, OFCCP received more than 130 comments on this provision from 
a broad range of perspectives. The final rule adopts the NPRM 
requirement to invite self-identification from applicants both before 
and after a job offer has been made. Instead of adopting the proposal 
for annual self-identification, the final rule adopts an every five 
year invitation for employees to self-identify with an interim reminder 
to employees of their ability to change their status. In response to 
the comments, OFCCP will simplify the language of the invitations and 
consolidate them into a single form for contractors to use when 
inviting self-identification. When finalized, the form will be 
available on the OFCCP Web site.
    The NPRM proposed to require that contractors develop and implement 
written procedures for processing requests for reasonable accommodation 
and prescribed specific mandatory elements that the procedures must 
contain. This proposal prompted strong support and strong criticism 
from commenters. After consideration of the comments, OFCCP decided not 
to require the development of written reasonable accommodation 
procedures and eliminated proposed Sec.  60-741.45. Instead, the final 
rule notes that using written reasonable accommodation procedures is a 
best practice that may assist contractors in meeting their

[[Page 58687]]

reasonable accommodation obligations. The final rule states that 
contractors are not required to use such procedures and will not be 
found in violation of this part for not using such procedures. However, 
for the benefit of contractors that choose to adopt this best practice, 
the final rule also contains a new Appendix B that provides guidance 
for contractors on establishing written reasonable accommodation 
procedures.
    The final rule presents a significant revision of the section 503 
regulations. The detailed Section-by-Section Analysis below identifies 
and discusses all of the final changes in each section. For ease of 
reference, part 60-741 will be republished in its entirety in the final 
rule.

Section-By-Section Analysis

41 CFR Part 60-741

Subpart A--Preliminary Matters, Equal Opportunity Clause

Section 60-741.1 Purpose, Applicability, and Construction

    Section 60-741.1 of the current rule sets forth the scope of 
section 503 and the purpose of its implementing regulations. The NPRM 
proposed three minor changes to this section. Specifically, it proposed 
to add language to paragraph (a) referencing contractors' 
nondiscrimination obligation; to modify the citation to the ``Americans 
with Disabilities Act of 1990'' (ADA) in paragraph (c) to reflect that 
statute's amendments by the ADA Amendments Act of 2008; and to add a 
new paragraph (c)(2) (and renumber existing paragraph (c)(2) as (c)(3)) 
to reflect the ADAAA's affirmation, in section 6(a)(1), that nothing in 
the statute ``alters the standards for determining eligibility for 
benefits'' under State worker's compensation laws or under State and 
Federal disability benefit programs. We received no comments on these 
proposed changes. Accordingly, OFCCP adopts the proposed revisions in 
the final rule without alteration.

Section 60-741.2 Definitions

    The NPRM incorporated the vast majority of existing definitions 
contained in Sec.  60-741.2 without change. However, OFCCP proposed 
several changes to the substance and structure of this section. With 
regard to structure, OFCCP proposed to reorder the definitions so that 
they are primarily in alphabetical order, rather than in order by 
subject matter.
    With regard to substantive changes, the NPRM proposed several 
revisions relating to the definition of ``disability'' and its 
component parts resulting from the passage of the ADAAA, which became 
effective on January 1, 2009, and which amends both the ADA and Section 
503. These include revisions to the definitions of ``disability'' 
(paragraph (g)), ``major life activities'' (paragraph (m)), 
``mitigating measures'' (paragraph (n)), ``regarded as having such an 
impairment'' (paragraph (v)), and ``substantially limits'' (paragraph 
(z)). It is OFCCP's intention that these terms will have the same 
meaning as set forth in the ADAAA, and as implemented by the EEOC in 
its revised regulations published at 76 FR 16978 (March 25, 2011). In 
addition to revisions related to the definition of ``disability,'' the 
NPRM also proposed to replace the term ``Deputy Assistant Secretary'' 
with the term ``Director,'' and added a definition of ``linkage 
agreement.'' OFCCP received 18 comments on the proposed changes to 
Sec.  60-741.2 from a variety of entities including individuals, 
contractors, and associations.
     Definitions related to ``Disability''
    Commenters generally commended OFCCP for its efforts to bring 
consistency to the definitions used in section 503 and those in the 
ADAAA, noting, for example, that the ``contractor community and 
individuals with disabilities are well-served by a consistent and 
uniform approach.'' A few commenters asserted that the new definition 
of ``disability'' was overly broad and that, as a result, these 
commenters were concerned that ``a majority of individuals in the labor 
force may consider themselves as disabled.''
    In amending the ADA, Congress made clear its intent to ensure a 
``broad scope of protection'' for ``disability,'' and to ensure that 
this broad scope is not unduly ``narrowed'' by administrative or court 
rulings. See ADAAA at section 2. OFCCP's revised definitions 
incorporate the ADAAA's requirements, which, as previously noted, apply 
equally to section 503. We therefore adopt the NPRM's revised 
definitions related to ``disability'' into the final rule.
     Definition of ``Director''
    We received no comments on the new definition of ``Director,'' and 
it is adopted into the final rule as proposed.
     Definition of ``Linkage Agreement''
    We received no comments on the proposed definition of ``linkage 
agreement.'' However, as the final rule eliminates the requirement for 
contractors to enter into linkage agreements, there is no need for the 
regulation to contain a definition for it, and thus it is eliminated 
from the final rule. See discussion of Sec.  60-741.44(f) below.
     Additional Definitions
    Several commenters representing the contractor community requested 
that OFCCP add formal definitions for ``applicant'' and for ``Internet 
applicant,'' as those terms are defined in the Executive Order 11246 
(EO 11246) implementing regulations at 41 CFR part 60-1. While OFCCP 
does not formally adopt the definition of ``Internet applicant'' into 
the section 503 regulations, OFCCP is harmonizing the requirements of 
the section 503 regulations and the Internet Applicant Rule. OFCCP 
provides further guidance on this issue in the preamble discussion 
related to Sec.  60-741.42.

Section 60-741.3 Exceptions to the Definitions of ``Disability'' and 
``Qualified Individual''

    The NPRM proposed to modify this section by changing the terms 
``individual with a disability'' and ``qualified individual with a 
disability'' in the section title, as well as throughout the section, 
to ``disability'' and ``qualified individual,'' respectively, in 
accordance with the ADAAA. No comments were received regarding these 
non-substantive changes, and OFCCP therefore adopts them in the final 
rule.

Section 60-741.4 Coverage and Waivers

    The proposed rule removed the text of paragraph (a)(2) as the 
``contract work only'' exception applied to ``employment decisions and 
practices occurring before October 29, 1992'' and has now expired. 
Accordingly, the NPRM also renumbered paragraphs (3), (4), and (5) as 
paragraphs (2), (3), and (4). No comments were received on this 
proposed revision and OFCCP adopts it into the final rule.

Section 60-741.5 Equal Opportunity Clause

    The NPRM proposed several changes to the content of the Equal 
Opportunity (EO) Clause found in Sec.  60-741.5, and to the manner in 
which the EO Clause is included in Federal contracts. We received a 
total of 23 comments on these proposals. The proposals, the comments to 
these proposals, and the revisions made to the final rule are discussed 
in turn below.
     EO Clause Paragraph 1--Statement Requiring that 
Contractors Not Discriminate on the Basis of Disability
    In paragraph 1 of the EO clause, the NPRM proposed to modify the 
phrase ``to employ, advance in employment and otherwise treat qualified 
individuals with disabilities without discrimination based on their 
physical

[[Page 58688]]

or mental disability'' to read ``to employ and advance in employment 
individuals with disabilities, and to treat qualified individuals 
without discrimination on the basis of their physical or mental 
disability . . . .'' This formulation more closely mirrors the language 
and intent of the ADAAA. Only two comments were received regarding this 
change. One requested that we also delete the word ``because'' from the 
first sentence of paragraph 1 for consistency with the ADAAA, while the 
other asked that we add the word ``qualified'' before the phrase 
``individuals with disabilities.'' OFCCP does not believe that the 
first sentence of paragraph 1 is inconsistent with the ADAAA and 
declines to make this change. OFCCP also declines to add the word 
``qualified'' as requested. The phrase ``qualified individuals with 
disabilities'' is used in the ADAAA solely in the context of the 
entitlement to reasonable accommodation, which is not the subject of 
the revised sentence. Thus, it would not be consistent with the ADAAA 
to use that phrasing in this sentence. The NPRM's changes to paragraph 
1 of the NPRM are adopted and set forth in the final rule as proposed.
     EO Clause Paragraph 4--Electronic Notice Posting and 
Accessible Formats
    In paragraph 4, we proposed two revisions. First, the proposed 
regulation revised the parenthetical at the end of the third sentence 
of this paragraph to replace the outdated suggestion of reading the 
notice to a visually impaired individual as an accommodation with the 
suggestion to provide the notice in Braille, large print, or other 
alternative formats, so that the individual with a disability may read 
the notice him/herself. The proposed regulation also addressed the 
electronic posting of notices by contractors to satisfy the 
contractors' posting obligation in the context of telecommuting, work 
arrangements that do not include a physical office setting, and the use 
of electronic or Internet-based application systems. It proposed that 
the contractor be able to satisfy its posting obligation through 
electronic means for employees who telework, provided that the 
contractor provides computers to its employees or otherwise has actual 
knowledge that employees can access the notice. To clarify, ``actual 
knowledge'' does not mean actual knowledge that the employee accessed 
the notice, but rather actual knowledge that the notice was posted or 
disseminated in such a way that would be accessible to the employee. 
The NPRM further proposed that contractors that use an electronic 
application process be required to use an electronic posting, and be 
required to conspicuously store the electronic notice with, or as part 
of, the electronic application.
    OFCCP received two comments regarding paragraph 4 of the EO Clause. 
One commenter expressed uncertainty as to what point in the hiring 
process a contractor is required to provide an alternative version of 
the notice. A contractor must provide an alternate version of the 
notice to an applicant with a disability at the same point in the 
process that it would provide the notice to applicants without 
disabilities, and upon request. The second commenter recommended that 
the EO Clause require that electronic notices be available in an 
accessible format. Paragraph 4 of the EO Clause clearly states that 
``The contractor must ensure that applicants or employees with 
disabilities are provided the notice in a form that is accessible and 
understandable to the individual applicant or employee.'' Contractors 
are thus already expected to provide the notice in accessible format, 
if needed.
    In the final rule, OFCCP has adopted the proposed changes to 
paragraph 4 of the EO Clause. We have also added a clarification 
stating that a contractor is able to satisfy its posting obligation by 
electronic means for employees who do not work at a physical location 
of the contractor, provided that the contractor provides computers or 
access to computers that can access the electronically posted notices. 
This clarifies that electronic posting is appropriate not only for 
employees who telework, but also for those who share work space--and 
contractor provided computers- at a remote work center.
     EO Clause Paragraph 7--Contractor Solicitations and 
Advertisements
    The proposed rule added a new paragraph 7 to the EO clause that 
would require the contractor to state and thereby affirm in 
solicitations and advertisements that it is an equal employment 
opportunity employer of individuals with disabilities. A comparable 
clause already exists in the equal opportunity clause of Executive 
Order 11246 regulations. See 41 CFR 60-1.4(a)(2).
    OFCCP received three comments objecting to this proposal. These 
commenters asserted that this requirement would be too burdensome since 
newspapers and other publications charge for each word of a 
solicitation and that the word ``solicitation'' was undefined and thus 
open to broad interpretation.
    The word ``solicitation'' is also used, along with the word 
``advertisements,'' in the Executive Order regulations. It has been 
broadly construed for many years to refer to any job listing, 
announcement, or advertisement, and would have the same meaning in the 
section 503 regulations. With regard to the assertion of 
burdensomeness, as noted in the NPRM, contractors are already required 
under Executive Order 11246 to state in advertisements and 
solicitations that ``all qualified applicants will receive 
consideration for employment without regard to race, color, religion, 
sex, or national origin.'' See 41 CFR 60-1.4(a)(2). The requirement set 
forth in paragraph 7 of the NPRM would require adding the single word 
``disability'' to the language that contractors are already required to 
use in advertisements. This is a very minor change involving nominal 
time and expense to contractors that will affirm to jobseekers and the 
public the fact that individuals with disabilities are entitled to non-
discrimination and affirmative action in the workplaces of Federal 
contractors. Accordingly, the language in paragraph 7 of the NPRM is 
adopted into the final rule as proposed.
     Inclusion of EO Clause in Federal Contracts (proposed 60-
741.5(d)
    Finally, the NPRM proposed requiring that the entire EO Clause be 
included verbatim in Federal contracts. This proposed change was to 
ensure that the contractor, and particularly any subcontractor, who 
often relies on the prime contractor to inform it of its 
nondiscrimination and affirmative action obligations, reads and 
understands the language in this clause. OFCCP received nineteen 
comments, all opposing the verbatim inclusion of the EO Clause in 
contracts. The commenters primarily asserted that this requirement 
would be too burdensome, as the length of the contract would increase 
significantly to perhaps double or even triple its original length in 
some instances.
    In light of the comments and upon further consideration of the 
issue, the final rule does not require express inclusion of the entire 
EO Clause into Federal contracts. In addition to the burden concerns 
set forth by commenters, there is concern that the length of the EO 
Clause will dissuade, rather than promote, contractors and 
subcontractors from reading and taking note of their non-discrimination 
and affirmative action obligations. This is contrary to the intent 
behind the proposal in the NPRM.
    However, the requirement in the existing regulations does little to 
notify contractors and subcontractors of the nature of their 
obligations to employ and advance in employment qualified individuals 
with disabilities, which was

[[Page 58689]]

a primary objective of the NPRM proposal. Accordingly, in order to draw 
greater attention to the contractors' obligations under section 503 
without the burden of including the entire section 503 EO Clause, the 
final rule revises paragraph (d) of this section to require the 
following text, set in bold text, in each contract, following the 
reference to the section 503 regulations: ``This contractor and 
subcontractor shall abide by the requirements of 41 CFR 60-741.5(a). 
This regulation prohibits discrimination against qualified individuals 
on the basis of disability, and requires affirmative action by covered 
prime contractors and subcontractors to employ and advance in 
employment qualified individuals with disabilities.''
Subpart B--Discrimination Prohibited

Section 60-741.21 Prohibitions

    This section of the rule describes types of conduct that would 
violate the non-discrimination requirements of section 503. The NPRM 
renumbered the section's paragraphs, captioning the introductory 
sentence as (a), and renumbering existing paragraphs (a) through (i) as 
paragraphs (1) through (9). The NPRM also proposed several substantive 
changes, most of which are necessitated by the ADAAA. A new paragraph 
(iv) was added to paragraph (a)(6) regarding reasonable accommodation 
(Sec.  60-741.21(f) of the existing regulations) to clarify that a 
contractor is ``not required'' to provide reasonable accommodation to 
individuals who ``satisfy only the `regarded as having such an 
impairment' prong of the definition of disability.'' A new paragraph 
(ii) was added to paragraph (a)(7) regarding qualification standards 
(Sec.  60-741.21(g) of the existing regulations) to incorporate the 
ADAAA's specific prohibition on the use of qualification standards, 
employment tests, or other selection criteria that are ``based on an 
individual's uncorrected vision'' unless the standard, test, or other 
selection criteria, as used by the contractor, ``is shown to be job-
related for the position in question and consistent with business 
necessity.'' We also proposed adding a sentence to paragraph (a)(9) 
regarding compensation (Sec.  60-741.21(i) of the existing regulations) 
to clarify that it would be impermissible for a contractor to reduce 
the compensation provided to an individual with a disability because of 
the ``actual or anticipated cost of a reasonable accommodation the 
individual needs or may request.'' Lastly, the NPRM added a new 
subsection (b) to incorporate the ADAAA's prohibition on claims of 
discrimination because of an individual's lack of disability.
    OFCCP received no comments regarding any of these proposed changes. 
We did, however, receive one comment suggesting we add ``disparate work 
assignments'' as an example of a method by which an employer may 
discriminate against an employee with a disability. While we agree with 
the point, we note that the nondiscrimination requirement of the rule 
already broadly encompasses ``any other term, condition, or privilege 
of employment,'' including work assignments, as well as every other 
aspect of employment. See Sec.  60-741.20(i). We therefore decline to 
make this suggested change, as discrimination in work assignments is 
already prohibited by the section 503 regulations. Accordingly, OFCCP 
adopts the revisions proposed in the NPRM into the final rule, except 
that proposed paragraph (a)(6)(iv) is renumbered paragraph (a)(6)(v) in 
the final rule.
    In addition, the final rule adds two new paragraphs to paragraph 
(a)(6). The NPRM proposed, in section Sec.  60-741.44(d), that as a 
matter of affirmative action, the contractor ``must ensure'' that its 
online job application systems are ``compatible with'' assistive 
technology used by individuals with disabilities. In response to 
concerns raised by commenters, OFCCP decided not to include this 
provision in the final rule and to instead codify its publicly stated 
position that the nondiscrimination obligation to make reasonable 
accommodation includes contractors' use of electronic or online job 
application systems and requires that contractors ensure equal access 
to job opportunities. Although we are not including the proposed 
provision in the final rule, OFCCP notes in paragraph (a)(6)(iii) that 
it is a best practice for contractors to make their online systems 
accessible and compatible with assistive technologies used by 
individuals with disabilities. See the preamble to Sec.  60-741.44(d), 
below, for a discussion of the comments. The codification of this 
position, first stated publicly in Directive 281, Federal Contractor's 
Online Application Selection System (July 10, 2008), on line at http://www.dol.gov/ofccp/regs/compliance/directives/dir281.htm, is in 
paragraph (a)(6)(iii) of the final rule.
    Paragraph (a)(6)(vi) of Sec.  60-741.21of the final rule is also 
new. The NPRM proposed a new Sec.  60-741.45 requiring contractors to 
develop and implement written procedures for processing requests for 
reasonable accommodation, and providing minimum elements that 
contractors' reasonable accommodation procedures must address. After 
further consideration of the burden associated with this provision, 
OFCCP has decided not to incorporate this obligation in the final rule. 
See the preamble to Sec.  60-741.45, below, for a discussion of the 
comments regarding this section. Instead, in new paragraph (vi) to 
paragraph (a)(6) of Sec.  60-741.21, the final rule notes that using 
written reasonable accommodation procedures is a best practice that may 
assist contractors in meeting their reasonable accommodation 
obligations. This paragraph states that contractors are not required to 
use such procedures and will not be found in violation of this part for 
not using such procedures. However, for the benefit of contractors that 
choose to adopt this best practice, the final rule also contains a new 
Appendix B that provides guidance for contractors on establishing 
written reasonable accommodation procedures.

Section 60-741.23 Medical Examinations and Inquiries

    The proposed rule modified paragraph (b)(4) to clarify that 
voluntary medical examinations and activities need not be job-related 
and consistent with business necessity, and revised paragraph (b)(5) to 
eliminate the existing paragraph's reference to (b)(4). We received no 
comments on these proposed changes and adopt them into the final rule 
as proposed.

Section 60-741.25 Health Insurance, Life Insurance and Other Benefit 
Plans

    The proposed rule revised paragraph (d) by changing the current 
rule's two references to ``qualified individual with a disability'' to 
``individual with a disability,'' as the ability to perform essential 
functions, inherent in the definition of ``qualified individual,'' is 
not relevant to insurance considerations. We received no comments on 
this proposed change and adopt it into the final rule as proposed.
Subpart C--Affirmative Action Program

Section 60-741.40 General Purpose and Applicability of the Affirmative 
Action Program Requirement

    The proposed rule proposed changes to the structure of this section 
by adding a statement of purpose in new paragraph (a), reordering and 
recaptioning existing paragraphs (a), (b), (c), and (d), and revising 
the language of existing paragraph (c), renumbered as paragraph (b)(3) 
in the final rule, to require that the affirmative action program be 
reviewed and updated annually ``by the official designated by

[[Page 58690]]

the contractor pursuant to Sec.  60-741.44(i).''
     Paragraph (a): General Purpose
    Proposed paragraph (a) stated that an affirmative action program is 
a management tool designed to ensure equal employment opportunity and 
foster employment opportunities for individuals with disabilities. The 
proposed paragraph also noted that an affirmative action program ``is 
more than a paperwork exercise,'' and ``includes measurable objectives, 
quantitative analyses, and internal auditing and reporting systems that 
measure the contractor's progress toward achieving equal employment 
opportunity for individuals with disabilities.''
    A total of 22 comments were received from disability, veteran and 
employer associations, and from several individual employers about 
paragraph (a). Eighteen of the 22 comments expressed support for 
proposed paragraph (a) as ``helpful,'' and asserted that the proposal 
would bring the section 503 regulations in line with the regulations 
implementing the affirmative action obligations of EO 11246 on behalf 
of minorities and women. These commenters also asserted that paragraph 
(a) would be strengthened by the addition of language that the AAP is 
designed to ``effectuate'' and measure the contractor's progress toward 
achieving equal employment opportunity for individuals with 
disabilities. In contrast, three comments from employers and an 
employer association expressed general opposition to the proposed 
paragraph. One commenter asserted the transportation industry should be 
exempt. Another commenter stated that the proposed changes to the 
regulations would impose financial burdens on small and medium sized 
businesses.
    OFCCP agrees with the majority of commenters that proposed 
paragraph (a) accurately describes the general purpose of contractors' 
affirmative action program obligations and is consistent with the 
implementing regulations of EO 11246. We believe it is important to 
clearly articulate OFCCP's expectation that contractors' affirmative 
action programs will result in progress toward effectuating equal 
employment opportunity objectives for individuals with disabilities. 
With respect to the comment requesting an exemption for the 
transportation industry, we note that such a request must be made to 
the Director as provided in Sec.  60-741.4(b) of the regulations and 
cannot be sought through a public comment on the NPRM. OFCCP therefore 
declines to grant the requested waiver. Consequently, proposed 
paragraph (a) is adopted without change.
     Paragraph (b): Applicability of the affirmative action 
program
    No comments were received regarding the addition to proposed new 
paragraph (b)(3), previously paragraph (c), indicating that the 
affirmative action program shall be reviewed and updated annually ``by 
the official designated by the contractor pursuant to Sec.  60-
741.44(i).'' Proposed paragraph (b) is adopted without change.
    No comments were received regarding the reordering of Sec.  60-
741.40, and these changes are, likewise, adopted without change.

Section 60-741.41 Availability of Affirmative Action Program

    The proposed regulation proposed requiring that, in instances where 
the contractor has employees who ``telework'' or otherwise do not work 
at the contractor's physical establishment, the contractor shall inform 
these employees about the availability of the affirmative action 
program by means other than a posting at its establishment. This 
proposal in many respects mirrored the electronic notice requirements 
set forth in paragraph 4 of the EO Clause at Sec.  60-741.5 of the 
rule.
    A few commenters from the contractor community asserted that the 
NPRM's inclusion in the AAP of the data required to be collected and 
analyzed by proposed Sec.  60-741.44(k) could result in the AAP 
including sensitive, trade secret, or proprietary information. These 
commenters expressed concern that this information would be available, 
under proposed Sec.  60-741.41 to any applicant or employee.
    In response to these comments, OFCCP revises the language for the 
final rule to state that ``[t]he full affirmative action program, 
absent the data metrics required by Sec.  60-741.44(k), shall be made 
available to any employee or applicant . . . '' (revisions emphasized). 
This balances the interest in confidentiality of the contractor and its 
employees with the need for transparency regarding the contractor's 
affirmative action efforts. In addition, as part of the effort to focus 
the final rule on those elements that are of critical importance to 
OFCCP, while reducing the burden on contactors where possible, the 
final rule does not incorporate the NPRM proposals regarding informing 
off-site individuals about the availability of the contractor's 
affirmative action program. Rather, the final rule retains the language 
in the existing Sec.  60-741.41 in that regard.

Section 60-741.42 Invitation to Self-Identify

    The NPRM proposed five significant revisions to this section of the 
regulation: (1) Requiring the contractor to invite all applicants to 
self-identify as having a disability prior to an offer of employment, 
using the language and manner prescribed by the Director (paragraph 
(a)); (2) retaining but modifying the post-offer self-identification 
invitation requirement in the existing regulation (paragraph (b)); (3) 
requiring contractors to annually, and anonymously, survey their 
employees, using the language and manner prescribed by the Director 
(paragraph (c)); (4) emphasizing that the contractor is prohibited from 
compelling or coercing individuals to self-identify (paragraph (d)); 
and (5) requiring contractors to keep all information regarding self-
identification as an individual with a disability confidential, and 
maintained in a data analysis file in accordance with Sec.  60-741.23 
of this part. The NPRM also proposed eliminating the sample invitation 
to self-identify in Appendix B of the existing rule, and invited public 
comment on potential language for the text of the mandated invitation 
to self-identify for contractors to use.
    OFCCP received 136 comments on this section from a broad array of 
perspectives, including contractors, law firms, government agencies and 
individuals, as well as from organizations representing individuals 
with disabilities, veterans, and contractors. By and large, individuals 
with disabilities, and disability advocacy organizations were 
supportive of the three-step approach to voluntary self-identification 
of disability proposed in the NPRM, while contractors and contractor 
organizations opposed the proposed approach.
    Commenters opposed to the proposed self-identification rubric 
raised various concerns, including: (1) That the pre-offer invitation 
to self-identify allegedly conflicts with the Americans with 
Disabilities Act (ADA); (2) the potential interplay between the pre-
offer data collection requirement and the Internet Applicant Rule set 
forth in regulations for Executive Order 11246; (3) the possibility of 
inaccurate self-reporting and underreporting; (4) the potential for 
contractors to be exposed to discrimination claims as a result of 
having knowledge about the existence of a disability; and (5) cost and 
burden issues. Additionally, some of those who favored the proposed 
self-identification approach joined those opposed in questioning the 
wording and readability

[[Page 58691]]

of the proposed invitation to self-identify included in the NPRM 
preamble. The proposals, the comments regarding these proposals, and 
the revisions made in the final rule are discussed in turn below (with 
the exception of some specific comments on burden, which are addressed 
in the Regulatory Procedures section of the final rule).
     Paragraph (a): Pre-offer invitation to self-identify
    Paragraph (a) of the NPRM proposed requiring the contractor to 
invite all applicants to voluntarily self-identify as individuals with 
disabilities whenever the applicant applies for or is considered for 
employment. As discussed in the NPRM, the primary reason for proposing 
a pre-offer invitation to voluntarily self-identify is to collect 
important data pertaining to the participation of individuals with 
disabilities in the contractor's applicant pools and workforces. This 
data would enable the contractor and OFCCP to better monitor and 
evaluate the contractor's hiring and selection practices with respect 
to individuals with disabilities. Furthermore, data related to the pre-
offer stage of the employment process would be particularly helpful, as 
it would provide the contractor and OFCCP with valuable information 
regarding the number of individuals with disabilities who apply for 
jobs with contractors. In turn, this data would assist OFCCP and the 
contractor in assessing the effectiveness of the contractor's 
recruitment efforts over time, and in refining and improving the 
contractor's recruitment strategies, where necessary.
    There was support for this provision, among individuals with 
disabilities and disability advocacy organizations. One commenter 
stated that a study conducted by the Cornell University ILR School and 
the American Association of People with Disabilities had found that 
applicants are most likely to self-identify as having a disability 
during the recruitment process. On the other hand, several other 
commenters expressed concern about this paragraph. Most prominently, 
commenters were concerned that requiring contractors to invite 
applicants to reveal whether they have a disability pre-offer could 
expose contractors to an increased risk of liability under the ADA, and 
that pre-offer self-identification conflicted with that statute's 
general ban on pre-offer inquiries about disability and guidance issued 
by EEOC and OFCCP.
    OFCCP believes that concerns regarding the possibility of a 
conflict with the ADA or related guidance are based on an incorrect 
reading of the ADA and its regulations. As discussed in the NPRM, the 
ADA and section 503 regulations specifically permit the contractor to 
conduct a pre-offer inquiry about disability if it is ``made pursuant 
to a Federal, state or local law requiring affirmative action for 
individuals with disabilities,'' such as section 503. Furthermore, EEOC 
has clearly stated that ``collecting information and inviting 
individuals to identify themselves as individuals with disabilities as 
required to satisfy the affirmative action requirements of section 503 
of the Rehabilitation Act is not restricted'' by the ADA or EEOC's 
implementing regulations. See 29 CFR 1630.13, 1630.14 and its Appendix; 
41 CFR 60-741.42. EEOC has reiterated this exception to the prohibition 
on pre-offer inquiries about disability in sub-regulatory technical 
assistance guidance.\17\ For example, EEOC's Title I Technical 
Assistance Manual, online at www.askjan.org/LINKS/ADAtam1.html, states:

    \17\ To assuage any remaining doubt on this matter, OFCCP 
obtained a letter from EEOC's Office of Legal Counsel in advance of 
the publication of this rule affirming that the pre-offer invitation 
to self-identify as an individual with a disability required by this 
final rule is permissible under the ADA and its implementing 
regulations. This letter will be posted on the OFCCP Web site.

    5.5(c) Exception for Federal Contractors Covered by Section 503 
of the Rehabilitation Act and Other Federal Programs Requiring 
Identification of Disability. Federal contractors and subcontractors 
who are covered by the affirmative action requirements of Section 
503 of the Rehabilitation Act may invite individuals with 
disabilities to identify themselves on a job application form or by 
other pre-employment inquiry, to satisfy the affirmative action 
requirements of Section 503 of the Rehabilitation Act. Employers who 
request such information must observe Section 503 requirements 
regarding the manner in which such information is requested and 
used, and the procedures for maintaining such information as a 
---------------------------------------------------------------------------
separate, confidential record, apart from regular personnel records.

    The ADA, thus, clearly allows the type of pre-offer self-
identification invitation proposed in the NPRM.
    Some commenters were also concerned that obtaining information 
about the disability status of an applicant could potentially expose 
contractors to claims of discrimination by disappointed job seekers. 
These commenters stated that obtaining information that an applicant 
has a disability would give them ``knowledge'' of the existence of a 
disability--a necessary component to any disparate treatment 
discrimination claim--and that the pre-offer invitation requirement 
eliminates an important protection for contractors.
    OFCCP acknowledges that knowledge of the existence of a disability, 
like knowledge of a person's race, ethnicity, or gender, which are 
regularly self-reported and collected by contractors, is a component of 
an intentional discrimination claim. However, to find intentional 
discrimination it must be proven not only that the contractor knew that 
a person had a disability (or was of a particular race, ethnicity, or 
gender), but that the contractor treated the person less favorably 
because of his or her disability (or race, ethnicity, or gender). We 
note, moreover, that contractors have long had knowledge of the 
disabilities of applicants who have visible disabilities, such as 
blindness, deafness, or paraplegia, but that OFCCP has had no means of 
knowing of their presence in the applicant pool or their experience in 
the application and selection process. Requiring contractors to invite 
pre-offer self-identification will help fill this void. Lastly, OFCCP 
points out that, generally, self-identification information will be 
obtained by, and reside with, Human Resources (HR) offices and will not 
be provided to interviewing, testing, or hiring officials, as it is 
confidential information that must be kept separate from regular 
personnel records. This will help ensure that these officials do not, 
in fact, have knowledge of which applicants have chosen to self-
identify as having a disability.
    Several commenters were concerned that self-identification would be 
unreliable in truly measuring the number of individuals with 
disabilities in the applicant pool, as many applicants will not self-
identify or will do so incorrectly. Indeed the same study cited above 
showed that at best, only about 50 percent of those with disabilities 
were likely to respond. Commenters also asked OFCCP to clarify whether 
contractors would be allowed to identify an individual as having a 
disability who does not self-identify. These commenters expressed 
concern that not permitting contractors to identify applicants with 
known or obvious disabilities who do not self-identify as having a 
disability, would only increase the degree of underreporting, make it 
more difficult for contractors to meet the NPRM's proposed utilization 
goal, and possibly result in erroneous findings that the goal has not 
been met.
    OFCCP concedes that there likely will be significant 
underreporting, especially at the beginning, meaning that self-reported 
data regarding disability will not give a full picture of the applicant

[[Page 58692]]

pool. We disagree, though, that this is alone sufficient reason to 
eliminate the pre-offer invitation. While not perfect, the data that 
will result from the pre-offer invitation requirement will provide the 
contractor and OFCCP with important data that does not now exist 
pertaining to the participation of individuals with disabilities in the 
contractor's applicant pools. The hope is that this will allow the 
contractor and OFCCP to better identify, monitor, and evaluate the 
contractor's hiring and selection practices with respect to individuals 
with disabilities. We also believe that the response rate to the 
invitation to self-identify will increase over time, as people become 
accustomed to the invitation and workplaces become more welcoming to 
individuals with disabilities.
    With regard to the question of contractors identifying individuals 
with disabilities who do not self-identify, we note that contractors 
subject to Executive Order 11246 have long been permitted to identify 
the race, gender, and ethnicity of applicants who do not voluntarily 
self-identify, but may not guess or speculate when so doing. See 
Frequently Asked Questions for the Employer, online at http://www.dol.gov/ofccp/regs/compliance/faqs/emprfaqs.htm#Q10. OFCCP believes 
that a comparable interpretation of the section 503 voluntary self-
identification provisions is appropriate. The final rule requires 
contractors to maintain several quantitative measurements regarding 
individuals with disabilities who have applied or been hired for jobs 
(Sec.  60-741.44(k)). Contractors are also required to annually assess 
their utilization of individuals with disabilities in each job group 
against a national utilization goal, and to take specific steps to 
ascertain the existence of, and correct, any impediments to equal 
employment opportunity if the goal is not met (Sec.  60-741.45). In 
light of these requirements and the overall objective of measuring 
progress toward equal employment opportunity for people with 
disabilities, it is important that the reporting of disability 
demographic information be as accurate as possible. OFCCP therefore 
believes that it is appropriate to allow contractors to identify an 
individual as having a disability for the purposes of Sec. Sec.  60-
741.44(k) and 60-741.45, if the individual does not voluntarily self-
identify when: (1) The disability is obvious (e.g., someone is blind or 
missing a limb) or (2) the disability is known to the contractor (e.g., 
an individual says that he or she has a disability or requests 
reasonable accommodation for a disability).
    OFCCP believes that this approach strikes the appropriate balance 
between the privacy concerns of those with disabilities and the need 
for reporting information to be as accurate as possible. Pursuant to 
the final rule, disability demographic information must be kept 
confidential and maintained in a data analysis file. Such information 
may not be included in an individual's personnel file. Contractors are 
also reminded that they may not guess or speculate when identifying an 
individual as having a disability. Nor may they assume that an 
individual has a disability because he or she ``looks sickly'' or 
behaves in an unusual way.
    Another concern raised by several commenters is that the 
requirement to collect and maintain self-identification data from 
applicants does not comport with the Internet Applicant Rule found in 
the regulations to Executive Order 11246. See 41 CFR 60-1.3, 1.12. 
These commenters recommended that OFCCP add a definition of 
``applicant'' and ``Internet applicant'' to this final rule and ensure 
that wherever in the regulations the term ``applicant'' is used, the 
term ``Internet applicant'' applies as well. OFCCP did not propose to 
add a definition of ``applicant'' or ``Internet applicant'' in its 
NPRM. Therefore, the final rule does not do so. However, the discussion 
that follows provides guidance about how contractors may invite 
Internet applicants to self-identify as an individual with a disability 
under section 503 in a manner consistent with demographic collection 
requirements under the Executive Order Internet Applicant Rule. Under 
this final rule, contractors will be able to invite applicants to self-
identify as an individual with a disability at the same time the 
contractor solicits demographic data on applicants under the Executive 
Order 112146 Internet Applicant Rule. For Internet applicants this 
generally will be after the contractor has determined the individual 
has been screened for basic qualifications and meets other requirements 
for being an Internet applicant.
    Therefore, this rule does not require contractors to change their 
existing systems for screening Internet applicants so long as those 
systems comply with existing law.
    By way of background, OFCCP's longstanding definition of 
``applicant'' is contained in agency subregulatory guidance. See the 
Uniform Guidelines on Employee Selection Procedures (UGESP), Question 
and Answer 15, 44 FR 11996 (March 2, 1979).\18\ According to that 
guidance, in general, an applicant is a person who has indicated an 
interest in being considered for hiring, promotion, or other employment 
opportunities, either in writing (by completing an application form or 
submitting a resume) or orally, depending upon the contractor's 
practice. The Internet Applicant Rule came into effect in February 
2006, and pertains to recordkeeping by contractors on Internet-based 
hiring processes and the solicitation of race, gender, and ethnicity 
data, in conjunction with their recordkeeping obligations under the 
Executive Order implementing regulation at Sec.  60-1.12. Under Sec.  
60-1.12, contractors' recordkeeping obligations include maintaining 
expressions of interest through the Internet that the contractor 
considered for a particular position, as well as applications and 
resumes. Contractors also are required to maintain, where possible, 
data about the race, sex, and ethnicity of applicants and Internet 
Applicants, as appropriate. The term Internet Applicant is defined in 
Sec.  60-1.3 and generally means an individual who: (1) Submitted an 
expression of interest in employment through the Internet; (2) is 
considered by the contractor for employment in a particular position; 
(3) possessed the basic qualifications for the position; and (4) did 
not remove himself or herself from consideration.
---------------------------------------------------------------------------

    \18\ Question and Answer 15 reads: ``Q. What is meant by the 
terms ``applicant'' and ``candidate'' as they are used in the 
Uniform Guidelines? A: The precise definition of the term 
``applicant'' depends upon the user's recruitment and selection 
procedures. The concept of an applicant is that of a person who has 
indicated an interest in being considered for hiring, promotion, or 
other employment opportunities. This interest might be expressed by 
completing an application form, or might be expressed orally, 
depending upon the employer's practice.''
---------------------------------------------------------------------------

    OFCCP has taken into account contractors' concerns about inviting 
self-identification for applications submitted electronically, 
particularly for those contractors who create resume databases which 
they mine for applicants when they have a job opening. In recognition 
of these concerns, and consistent with EO 13563's focus on simplifying 
and harmonizing requirements, OFCCP will permit contractors to invite 
applicants to self-identify as an individual with a disability at the 
same time as contractors collects the demographic data for applicants 
required under Executive Order 11246.
    The Internet Applicant rule under EO 11246 generally allows 
contractors to do a ``first cut'' and screen out individuals whom they 
believe do not meet the

[[Page 58693]]

basic qualifications of the position--without capturing or retaining 
any demographic documentation on these individuals. There is the 
concern, however, that in doing this ``first cut'' contractors may be 
engaging in discrimination (e.g., if they are incorrectly applying 
their basic qualifications, or the basic qualifications have an adverse 
impact on a protected group and are not job-related and consistent with 
business necessity), and by not keeping the demographic information on 
the individuals they screened out they are eliminating evidence to 
prove that discrimination may be occurring. This concern is even 
greater in the section 503 context because these Executive Order 
``first cuts'' are not designed to take into account the possibility 
that someone with a disability might be able to meet the qualification 
standard or perform the essential functions of the job with the 
provision of a reasonable accommodation.
    Under existing law, it is unlawful under section 503 to use 
qualification standards, including at the ``basic qualifications'' 
screen stage, that screen out or tend to screen out an individual with 
a disability or a class of individuals with disabilities unless the 
standard is shown to be job-related for the position in question and 
consistent with business necessity. Selection criteria that concern an 
essential function may not be used to exclude an individual with a 
disability if that individual could satisfy the criteria with a 
reasonable accommodation. See Sec.  60-741.21(a)(7). These 
requirements, therefore, apply when contractors design and implement 
their ``basic qualifications'' screens. In addition, after the initial 
screening for ``basic qualifications,'' contractors must also ensure 
that they are complying with their duty to evaluate all applicants for 
jobs based on the applicant's ability to perform the essential 
functions of the job with or without reasonable accommodation.
    OFCCP will treat the recordkeeping provisions of section 503 at 
Sec.  60-741.80 in the same manner as the recordkeeping requirements 
under Executive Order 11246 at 41 CFR 60-1.12 as applied to Internet 
applicants. These recordkeeping requirements are not new and will 
impose no additional burden on contractors. The record retention 
requirements exist independently of whether and when individuals are 
invited to self identify under section 503.
    The section 503 recordkeeping provisions require contractors to 
retain personnel or employment records made or kept by the contractor 
for one or two years depending on the size of the contractor and 
contract. Those records include the records contractors are required to 
maintain under 41 CFR 60-1.12. Section 60-1.12 requires contractors to 
maintain all expressions of interest through the Internet or related 
technologies considered by the contractor for a particular position, 
such as on-line resumes or internal resume databases, and records 
identifying job seekers contacted regarding their interest in a 
particular position. For purposes of recordkeeping with respect to 
internal resume databases, the contractor also must maintain a record 
of each resume added to the database, a record of the date each resume 
was added to the database, the position for which each search of the 
database was made, and corresponding to each search, the substantive 
search criteria used and the date of the search. For purposes of 
recordkeeping with respect to external databases the contractor must 
maintain a record of the position for which each search of the database 
was made, and corresponding to each search, the substantive criteria 
used, the date of the search, and the resumes of job seekers who met 
the basic qualifications for the particular position who are considered 
by the contractor. As with records retained under EO 11246 regulations, 
these records are to be maintained regardless of whether the job seeker 
is an Internet applicant.
    If a contractor has a practice of welcoming unsolicited resumes 
regardless of current job openings, OFCCP will permit the contractor to 
invite self-identification only of those considered for employment, 
consistent with requirements under Executive Order 11246 and its 
regulations at 41 CFR 60-1.3 and 60-1.12. The obligation to invite 
self-identification is triggered by considering the job seeker for 
employment, not by including the resume in the resume database. For 
example, if a contractor has an internal resume database with 1,000 
resumes and is looking for applicants to fill a job as an engineer in 
Omaha, the contractor could limit the pool of resumes under review by 
applying a ``basic qualifications'' screen that identifies those who 
have a masters degree in electrical engineering, at least three years 
of experience as an electrical engineer, and further limit the review 
to resumes submitted within the last three months. If that search 
produced a pool of 30 job seekers, the contractor might narrow the pool 
further by asking the 30 job seekers if they are interested in being 
considered for the job. If 10 job seekers indicate interest in being 
considered, they would be applicants and the contractor would invite 
the 10 job seekers to self-identify. In contrast, if a contractor has a 
practice of not accepting unsolicited resumes, job seekers who submit 
an unsolicited resume are not applicants. Accordingly, the contractor 
would have no obligation to invite them to self-identify as an 
individual with a disability.
    It is also possible that potential and qualified job applicants 
with disabilities may not apply for jobs posted on contractors' online 
application systems because, for example, they are not aware that 
selection criteria concerning essential functions may not be used to 
exclude them if they can satisfy the criteria with a reasonable 
accommodation. Contractors seeking to fill jobs should seek to attract 
the best possible pool of applicants; this includes applicants with 
disabilities who could perform the job with or without reasonable 
accommodations. OFCCP notes that a best practice for ensuring a 
diverse, qualified pool of applicants for contractors using online 
application systems is posting a notice on their human resources Web 
page or online application portal that notifies job applicants that may 
need a reasonable accommodation to perform the functions of a job that 
they are entitled to one under the ADAAA. This best practice encourages 
qualified individuals with disabilities to pursue job vacancies, and 
provides contractors with access to a wide range of skills and talents.
    In providing this guidance as to application of the self-
identification requirement under section 503, contractors should be 
able to operate as they have been using their existing systems and 
processes because this rule does not change how contractors handle 
Internet applicants. This should allow contractors to avoid creating 
separate data collection and storage systems as many contractors 
feared. For those contractors that need further help determining which 
individuals must be given a pre-offer self-identification inquiry, 
OFCCP is available to provide technical guidance.
     Paragraph (a)(1): Requirement that the contractor invite 
self-identification using the language and manner prescribed by the 
Director
    Paragraph (a)(1) of the NPRM proposed requiring contractors to 
invite applicants to self-identify using language prescribed by the 
Director and provided a sample of what that language might look like 
for public comment. Several commenters responded, the majority of which 
expressed support for

[[Page 58694]]

the proposed text, but suggested that modifications be made to it.
    Commenters asserted that the proposed language was too long, wordy 
and complex. Many of these commenters offered suggestions to simplify 
the language, thereby increasing the likelihood that the invitation 
would be read, understood and responded to. Commenters also suggested 
that we state that self-identifying is ``voluntary'' before, rather 
than after, individuals are asked to identify their disability status. 
OFCCP agrees with these criticisms and is developing a form that will 
address them. When finalized, the form will be available on the OFCCP 
Web site.
    Some commenters opposed the use of uniform language for the self-
identification invitation, arguing that uniform language will not allow 
contractors flexibility to modify the self-identification language as 
necessary based on geographic location. They recommended that we 
provide a framework with suggested language and allow contractors the 
flexibility to design invitations they believed would maximize response 
rates. Other commenters expressed a willingness to use self-
identification language prescribed by OFCCP, but only if the EEOC has 
approved the inquiry. As noted in the NPRM, OFCCP believes that the use 
of uniform language is needed to ensure consistency in all self-
identification invitations, and to reassure individuals with 
disabilities that the self-identification request is routine and 
executed pursuant to obligations created by OFCCP. Standardized 
language will also minimize any burden to contractors associated with 
this responsibility, and will facilitate contractor compliance. With 
respect to the concern about EEOC approval, pursuant to the rulemaking 
process, both the NPRM and this final rule were coordinated with EEOC, 
among other agencies, prior to their publication. EEOC will be asked 
for input in the process that Secretary uses to finalize the form.
    Finally, few commenters commented on the portion of the text 
inviting applicants to request any needed accommodation in the 
application process. Those who did suggested that we either separate 
language concerning reasonable accommodation from the invitation, or 
include clarification that applicants are not being asked to disclose 
accommodations they need to perform the job they are seeking. We will 
address this issue when finalizing the language of the form.
     Paragraph (b): Post-Offer Invitation to Self-identify
    Paragraph (b) of the NPRM proposed modifying, but retaining, the 
current rule's requirement that contractors invite individuals, after 
an offer of employment is extended, but before the applicant begins 
work, to voluntarily self-identify as an individual with a disability. 
As explained in the NPRM, we proposed to retain this requirement, in 
addition to the new pre-offer invitation requirement, so that 
individuals with hidden disabilities who fear potential discrimination 
if their disability is revealed prior to receiving a job offer will, 
nevertheless, have the opportunity to provide this valuable data. We 
received no comments on this paragraph. Accordingly, the language in 
the NPRM is adopted as proposed.
     Paragraph (c): Annual Employee Survey
    Paragraph (c) proposed requiring that, on an annual basis, 
contractors invite all of their employees to voluntarily and 
anonymously self-identify as having a disability using the language and 
manner prescribed by the Director.
    We received several comments that addressed whether the annual 
employee survey should be anonymous. Some of these commenters generally 
supported an anonymous survey. These commenters asserted that having 
the survey be anonymous would permit contractors to collect the data 
necessary to evaluate the effectiveness of their affirmative action 
efforts while ensuring that applicants and employees with disabilities 
are protected from discrimination. Others contended that an anonymous 
survey would be critical to increasing the likelihood that individuals 
would choose to self-identify.
    Several other commenters opposed the anonymity requirement, arguing 
that it would impede the ability of contractors to comply with the 
NPRM's proposed requirements for collecting and analyzing data 
regarding individuals with disabilities. These commenters pointed out 
that contractors would be unable to comply with the goal requirement of 
proposed Sec.  60-741.46 to determine their utilization of individuals 
with disabilities by job group from anonymous self-identification 
forms. Such assessments would require an individual's name and other 
identifying information. Moreover, without identifying information, it 
would not be possible for contractors to know whether any of the 
employees who self-identified had self-identified previously, leading 
to the possibility of double counting employees with disabilities.
    OFCCP agrees that identifying information is needed in order for 
contractors to assess their utilization of individuals with 
disabilities by job group. We have, accordingly, revised paragraph (c) 
to remove the word ``anonymous.'' However, as noted previously, 
disability demographic information must be kept strictly confidential, 
apart from regular personnel files. We have also recaptioned paragraph 
(c) as ``Employees'' and removed the word ``survey.'' This clarifies 
that contractors are to provide employees with the same invitation to 
voluntarily self-identify as an individual with a disability that is 
provided to applicants, and do not need to canvass their employees in 
some other fashion.
    Divergent views were also expressed by commenters regarding the 
proposal to invite employees to voluntarily self-identify on an annual 
basis. Commenters supporting the annual requirement contended that it 
would provide an opportunity for employees who have become disabled 
since employment, or who were hesitant to self-identify during the 
hiring process, to be counted for affirmative action purposes. They 
also asserted that an annual employee survey would provide contractors 
with current information and enable them to measure the impact of 
changes in their hiring and employment practices.
    Commenters opposed to the annual survey requirement contended that 
it would be superfluous in light of the requirement in the existing 
regulations for contractors to advise employees of their right to self-
identify at any time. They also argued that it is redundant to require 
contractors to survey all employees annually in addition to the pre- 
and post-offer invitations to self-identify. These commenters argued 
that a single solicitation of applicants post- offer would be more 
appropriate, and would provide an opportunity for interactive 
discussions about reasonable accommodation. Other commenters opposed to 
the annual survey asserted that the inclusion of individuals who become 
disabled after becoming employed would not help contractors in 
analyzing and improving recruiting and outreach efforts. These 
commenters also contended the annual survey would deter employees from 
participating in the interactive reasonable accommodation process, and 
make employees suspicious of management's persistence in asking them to 
identify their disability status, making them less likely to self-
identify.
    Finally, some commenters opposed to the annual employee survey 
proposed

[[Page 58695]]

alternative ways to achieve the desired result. For example, one 
commenter recommended that we allow the contractor to post the 
invitation to self-identify in a conspicuous location and allow 
employees to self-identify at any time, rather than once per year, and 
require the contractor to record the data annually. Another proposal 
was to reduce the frequency of the survey to every two or three years 
instead of annually, or to make the annual survey optional, rather than 
mandatory.
    As stated in the NPRM, because baseline data regarding the number 
of individuals with disabilities in the contractor's workforce is not 
available, it is important to provide all employees with an initial 
opportunity to self-identify. It is also important that contractors 
continue to have the most accurate data possible in order to be able to 
conduct meaningful self-assessments of their employment practices and 
recruitment efforts. This is especially important in the disability 
context because the status of employees may change over time and the 
snapshot of the makeup of the contractor's workforce may become 
outdated for planning and self-assessment purposes. In light of both 
the importance of employee data and the concerns raised by commenters, 
the final rule revises the requirement to invite employee self-
identification as follows: The contractor is to invite employee self-
identification during the first year it becomes subject to the 
requirements of this section, and at five year intervals, thereafter. 
At least once during the years between each invitation, the contractor 
must remind their employees that they may voluntarily update their 
disability status at any time.
     Paragraph (d): Prohibits contractor from compelling or 
coercing individuals to self-identify
    Proposed paragraph (d) emphasized that the contractor is prohibited 
from compelling or coercing individuals to self-identify. While a 
majority of commenters supported this proposal, a few commenters 
opposed it. Commenters opposing this paragraph argued that the adoption 
of any utilization goal should be predicated upon mandatory self-
identification for applicants and employees to eliminate inaccurate 
reporting.
    The language of the NPRM is adopted into the final rule as 
proposed. OFCCP notes that self-identification for affirmative action 
purposes has always been voluntary under section 503, and is, likewise, 
voluntary with regard to race, gender, and ethnicity under Executive 
Order 11246, which OFCCP also enforces. While the final rule adds a 
goal requirement to section 503 for the first time, we find this an 
insufficient reason to mandate self-identification by applicants and 
employees. Executive Order 11246 has long had a goal requirement, but 
has never mandated self-reporting by applicants or employees. Moreover, 
such a mandate would be virtually unenforceable as many disabilities 
are hidden and would not be known to the contractor. In addition, as 
previously discussed, OFCCP will permit contractors to identify as 
individuals with disabilities applicants and employees with known or 
obvious disabilities who decline to voluntarily self-identify. 
Permitting such identification by contractors for affirmative action 
purposes, we believe, adequately addresses the concerns of commenters 
seeking a mandatory self-identification requirement. OFCCP, therefore, 
adopts paragraph (d) into the final rule as proposed.
     Paragraph (e): Requirement that information concerning 
disability be kept confidential
    Proposed paragraph (e) emphasized that all information regarding 
self-identification as an individual with a disability shall be kept 
confidential and maintained in a data analysis file in accordance with 
Sec.  60-741.23 of this part.
    Some commenters offered recommendations to modify paragraph (e). 
Commenters suggested that a clear definition of what constitutes a 
``data analysis file'' be provided and include clarification regarding 
who may have access to the information in such a file. It was also 
suggested that OFCCP expand the language of paragraph (e) to state that 
self-identification information should not be placed in an individual's 
personnel file. Still others suggested that self-identification 
information should be kept in the confidential medical file required by 
the ADA and the Genetic Information Nondiscrimination Act (GINA), and 
the implementing regulations for those statutes. OFCCP believes that 
paragraph (e) is sufficiently descriptive to instruct contractors to 
maintain self-identification information in a single confidential file 
maintained solely for the purpose of conducting data analysis required 
by section 503 and this part, and that a definition of ``data analysis 
file'' is not necessary. As section 503 already prohibits the 
maintenance of disability-related information in personnel files, there 
is no need to so state in this paragraph. See 41 CFR 60-741.23(d). 
Lastly, OFCCP rejects the suggestion that contractors be permitted to 
maintain self-identification information in employees' individual 
confidential medical files. This would impede contractors' ability to 
use the data for the collective analysis for which the data are 
collected, and to provide the self-identification information to OFCCP 
when requested to do so.

Section 60-741.44 Required Contents of Affirmative Action Programs

    The proposed rule contained significant revisions to several 
paragraphs of this section. These proposals, the comments to these 
proposals, and the revisions made to the final rule are discussed 
below.
    A total of 133 comments addressed the required contents of a 
section 503 affirmative action program (AAP). Commenters included 
disability, employer, veterans and other groups and associations, 
contractors, law firms, government offices, and individuals.
     Paragraph (a): Affirmative action policy statement
    Proposed Sec.  60-741.44(a) requires contractors to state their 
equal employment opportunity policy in the company's AAP. The NPRM 
proposed revising the second sentence of the existing paragraph to 
clarify the contractor's duty to provide notice of employee rights and 
contractor obligations in a manner that is accessible and 
understandable to persons with disabilities. It also proposed revising 
the parenthetical at the end of the sentence, replacing the outdated 
suggestion of ``hav[ing] the notice read to a visually disabled 
individual'' as an accommodation with the suggestion to provide 
Braille, large print, or other versions of the notice that allow 
persons with disabilities to read the notice themselves. The NPRM also 
proposed revising paragraph (a) to require the contractor's chief 
executive officer to clearly articulate his or her support for the 
company's AAP in the policy statement.
    OFCCP received sixteen comments on these proposed revisions, most 
of which supported the changes. Commenters noted that the requirement 
for contractors to provide accommodations such as large print, Braille 
and other means to enable individuals with visual impairments to read 
for themselves brings the regulation in line with current practice 
under the ADA and Rehabilitation Act.
    An employer association questioned the feasibility of obtaining the 
required notice in Braille. This comment also stated that the proposed 
requirement would impose an insurmountable burden because providing 
notices that are understandable to an individual with a disability 
requires identification, understanding, and anticipation of the

[[Page 58696]]

varying types and degrees of learning disabilities that individuals may 
possess.
    OFCCP declines to revise Sec.  60-741.44(a) with regard to the 
provision of alternative formats that are accessible and understandable 
to persons with disabilities. The proposed wording indicates that the 
listed alternative formats are simply examples of reasonable 
accommodation that may be needed by particular individuals; there may 
be other ways to comply with this requirement, depending on the 
specific circumstances. With regard to the concern that there may be 
varying types and degrees of learning disabilities requiring 
accommodation, OFCCP notes that paragraph (a) is consistent with the 
existing section 503 reasonable accommodation obligation that requires 
contractors to accommodate the specific limitations of their applicants 
and employees with disabilities, unless to do so would impose an undue 
hardship on its operations. See 41 CFR 60-741.21(f).
    OFCCP, however, agrees with commenters' suggestion to revise the 
language of paragraph (a) to clarify the level of company leadership 
that must demonstrate their support for the company's AAP. The purpose 
of this paragraph is to ensure that the statement of policy 
communicates to employees that support for the AAP goes to the very top 
of the contractor's organization. For contractors with foreign-based 
parent companies, it is appropriate to require the company leadership 
that is based in the United States to express that support. Therefore, 
Sec.  60-741.44(a) of the final rule is revised to state ``[t]he policy 
statement shall indicate the top United States executive's (such as the 
Chief Executive Officer or the President of the United States Division 
of a foreign company) support for the contractor's affirmative action 
program . . .''
     Paragraph (b): Review of personnel processes
    The NPRM proposed three changes to this paragraph. First, it 
required that the contractor review its personnel processes on at least 
an annual basis, rather than ``periodically,'' to ensure that its 
obligations are being met.
    Second, proposed paragraph (b) mandated certain specific steps 
(based on existing Appendix C) that the contractor must take, at a 
minimum, in the review of its personnel processes, including: (1) 
Identifying the vacancies and training programs for which protected 
applicants and employees were considered; (2) providing a statement of 
reasons explaining the circumstances for rejecting individuals with 
disabilities for vacancies and training programs and a description of 
considered accommodations; and (3) describing the nature and type of 
accommodations for individuals with disabilities who were selected for 
hire, promotion, or training programs.
    Third, the NPRM proposed to require that the contractor ``ensure 
that its use of information and communication technology is accessible 
to applicants and employees with disabilities.'' A footnote citing 
resources related to technological accessibility, such as the Web 
Content Accessibility Guidelines (WCAG 2.0) and the regulations 
implementing the accessibility requirements for Federal agencies 
prescribed in section 508 of the Rehabilitation Act was also included.
    OFCCP received 56 comments regarding these proposals. Some 
supported an annual review of personnel processes, while other 
commenters suggested a less frequent review, occurring every three or 
five years, would be sufficient. Several comments asserted that 
significant burden and costs would result from the proposed 
requirement, much greater than that calculated by OFCCP in the NPRM's 
Regulatory Procedures section. The comments also asserted that 
promotion and training opportunities, unlike hiring, are not as readily 
distinguishable for individual candidates. Such opportunities may be 
available to all employees, take a number of different forms, and may 
be noncompetitive. These commenters further objected to the requirement 
to create and maintain a statement of reasons for every instance in 
which an individual with a disability is denied a position or training 
as tantamount to requiring a drafted legal defense before any claims 
were brought, and warned that it could serve to ``drive underground'' 
the real reason for rejection. Lastly, the comments raised 
confidentiality concerns and cited difficulties the proposed 
requirement would create in terms of recordkeeping and access to human 
resource information systems currently used by contractors. The 
comments asserted that it would therefore be unreasonable to make the 
proposed procedures mandatory.
    Based on the comments submitted, and questions about the efficacy 
of these requirements toward the end of increasing employment 
opportunities for individuals with disabilities, OFCCP does not adopt 
the proposal as drafted in the NPRM. Instead, the final rule retains 
the language in existing Sec.  60-741.44(b) that contractors shall 
review their personnel processes ``periodically,'' but eliminates 
existing Appendix C. However, in so doing, OFCCP reiterates that 
existing paragraph (b) contains several requirements--including 
ensuring that its personnel processes are careful, thorough, and 
systematic; ensuring that these processes do not stereotype individuals 
with disabilities; and designing procedures that facilitate a review of 
the implementation of these requirements--that continue to apply to 
contractors. OFCCP will vigorously enforce these requirements.
    With respect to the proposed technological accessibility 
requirement, some disability advocacy groups supported the proposed 
requirement. However, other commenters asserted that this requirement 
was too vague, and asked for clarification as to what they would have 
to do to comply and how OFCCP intended to enforce it. These commenters 
also asserted that there is not a single, accepted standard of 
``accessibility,'' that technology is constantly changing, and that it 
could be tremendously expensive and time-consuming for contractors to 
have to ensure on an annual basis that all of its information and 
communication technology are fully accessible and technologically up-
to-date.
    In response to these comments OFCCP has revised and clarified 
paragraph (b) in the final rule. It requires that the ``contractor 
shall ensure'' that applicants and employees with disabilities have 
``equal access to its personnel processes, including those implemented 
through information and communication technologies.'' The final rule 
requires, further, that contractors must provide ``necessary reasonable 
accommodation to ensure applicants and employees with disabilities 
receive equal employment opportunity in the operation of personnel 
processes.'' Contractors are also ``encouraged'' to make their 
information and communication systems accessible, even in the absence 
of a specific accommodation request. To assist contractors in making 
their systems accessible, the final rule retains the footnote 
highlighting the Web Content Accessibility Guidelines (WCAG 2.0) and 
the regulations implementing the Federal sector accessibility 
requirements of section 508 of the Rehabilitation Act as examples of 
readily available accessibility resources.
     Paragraph (c): Physical and mental qualifications
    The NPRM proposed three substantive revisions to this paragraph. 
First, it required that all physical and mental job qualification 
standards must be reviewed and updated, as necessary, on an annual, as 
opposed to a

[[Page 58697]]

``periodic,'' basis. Second, paragraph (c)(1) of the NPRM required the 
contractor to document its annual review of physical and mental job 
qualification standards. Third, paragraph (c)(3) of the NPRM required 
the contractor to timely document those instances in which it believes 
that an individual would constitute a ``direct threat'' as understood 
under the ADA and defined in these regulations, and to maintain this 
document as set forth in the recordkeeping requirements in Sec.  60-
741.80.
    OFCCP received 37 comments addressing the proposal to require 
annual reviews of physical and mental job qualification standards. 
Comments from disability and other associations, as well as a few law 
firms, supported the annual review requirement. Some of these 
commenters stated that all qualifications that needlessly screen out 
people with disabilities should be reviewed including such 
qualifications as having a driver's license. Contrasting comments from 
contractors, employer associations, and other law firms stated that the 
requirement to review physical and mental qualifications of all jobs 
with openings during the AAP period would be burdensome because of the 
number of job openings, variety of jobs, time, staff and needed changes 
to HR systems. Several comments suggested less burdensome approaches. 
Most of these comments suggested reviewing the qualifications only when 
it is a new position or a significant change in the job occurs. Other 
commenters suggested that reviews occur on a three or five year basis.
    With regard to the second proposed change in paragraph (c)(1) 
requiring that the contractor document its job qualification standard 
reviews, commenters questioned what evidence will be necessary to 
demonstrate that a review has been completed, including whether a job 
analysis and validation are needed. One of these comments noted that 
the proposed regulation lacks clarity as to how job-relatedness is 
evidenced and asserted that the ADA practice of examining ``essential 
functions'' of a job should be sufficient.
    Finally, the third proposed change requires the contractor to 
timely document those instances in which it believes that an individual 
would constitute a ``direct threat.'' Comments on this proposal were 
limited. One comment asserted that this proposed requirement would be 
burdensome and other comments expressed concern that contractors may 
become overzealous in documenting incidents involving persons with 
disabilities. In contrast, another commenter stated that documentation 
should be subject to disclosure to the individual.
    We note at the outset that the existing regulation clearly 
prohibits the contractor from using a job qualification standard that 
screens out or tends to screen out an individual or class of 
individuals on the basis of disability unless the standard is job-
related and consistent with business necessity. See 41 CFR 60-
741.21(g), 60-741.44(c)(2). This is a primary reason that the existing 
regulations require the contractor to periodically review its physical 
and mental job qualification standards. To the extent that contractors 
are not currently conducting these reviews at all, they are already in 
violation of the existing regulations.
    With this in mind, and taking into account commenters' concerns 
about the burden associated with the proposal, the final rule does not 
adopt the proposal as drafted in the NPRM. Instead, the final rule 
retains the language in existing Sec.  60-741.44(c), requiring that 
contractors adhere to a schedule for the ``periodic review of all 
physical and mental job qualification standards,'' and providing that 
contractors have the burden to demonstrate that qualification standards 
that tend to screen out qualified individuals with disabilities are 
job-related and consistent with business necessity. The burden analysis 
in the Regulatory Procedures section of the final rule has been amended 
accordingly.
     Paragraph (d): Reasonable accommodation to physical and 
mental limitations.
    The NPRM proposed a single revision to this provision of the 
regulations. The proposed change required the contractor to ensure that 
its electronic or online job application systems are compatible with 
assistive technology commonly used by individuals with disabilities, 
such as screen reading and speech recognition software.
    Thirteen comments were received on this proposed change. One of 
these comments asserted that OFCCP should require adoption of a 
universal design approach or of a regulatory scheme such as section 
508. Commenters who opposed the requirement spoke to the potential 
burden the requirement would impose. One comment submitted by an 
employer association asserted that OFCCP's proposed change is premature 
and pointed out that the Department of Justice and the Access Board are 
currently examining requiring Web site and technology accessibility and 
the availability of processes or technology to facilitate such access.
    OFCCP has revised and clarified this requirement in the final rule, 
and determined that, as revised, this obligation is more appropriately 
addressed in Sec.  60-741.21(a)(6)(iii) as part of the fundamental, 
nondiscrimination reasonable accommodation obligation of all 
contractors subject to section 503. This revised provision makes clear 
that the reasonable accommodation obligation extends to contractors' 
``use of electronic or online application systems.'' A contractor using 
such a system must provide necessary reasonable accommodation to 
``ensure'' that qualified individuals with disabilities who are unable 
to fully utilize the system are provided ``equal opportunity to apply 
and be considered for all jobs.''
     Paragraph (f): Outreach and recruitment efforts
    Existing paragraph (f) requires contractors to engage in outreach 
and recruitment of individuals with disabilities and suggests a number 
of outreach and recruitment efforts that the contractor could undertake 
to comply with this obligation. The NPRM proposed several changes to 
this paragraph: proposed paragraph (f)(1)(i) required that contractors 
promptly list all of their employment opportunities, with limited 
exceptions, with the nearest Employment One-Stop Career Center; 
paragraph (f)(1)(ii) required that the contractor enter into three 
linkage agreements with various entities to serve as sources of 
potential applicants with disabilities; paragraph (f)(2) included a 
list of additional suggested outreach and recruitment efforts that 
contractors could take; paragraph (f)(3) proposed a new requirement 
that the contractor conduct an annual self-assessment of their outreach 
and recruitment efforts; and paragraph (f)(4) clarified the 
contractor's recordkeeping obligations with regard to these outreach 
and recruitment efforts.
    Overall, OFCCP received 112 comments on the proposed changes to 
Sec.  60-741.44(f). While a number of commenters praised OFCCP's 
efforts to strengthen Federal contractors' recruitment and outreach 
efforts, the majority of the comments expressed concerns about the 
proposed requirements. Commenters raised a variety of issues, including 
concerns about the burden associated with the proposed mandatory 
requirements, technical questions regarding the drafting of the 
proposed rule language, and the utility of some of the recommended 
provisions. We address the proposals in each subparagraph, and

[[Page 58698]]

the comments to these proposals, in turn below.
    Commenters voiced several concerns with the (f)(1)(i) proposed 
requirement that contractors promptly list all of their employment 
opportunities with the nearest Employment One-Stop Career Center. 
Commenters stated that the requirement to provide information about 
each job vacancy in the manner and format required by the appropriate 
One-Stop would be extremely burdensome because the One-Stops have a 
wide variety of different manners of submission and required formats. 
Some commenters suggested that OFCCP should establish a uniform format 
and manner for job listings or reestablish the national ``job bank'' 
that previously existed under VEVRAA.
    As stated above, paragraph (f)(1)(ii) required contractors to enter 
into three linkage agreements with three different entities: 
Specifically, the proposal required linkage agreements with (1) the 
State Vocational Rehabilitation Agency nearest the contractor's 
establishment or a local organization listed in the Social Security 
Administration's Ticket to Work Employment Network Directory; (2) at 
least one of several other listed organizations and agencies for 
purposes of recruitment and developing training opportunities; and (3) 
an organization listed in the Employer Resources section of the 
National Resource Directory (NRD), an online collaboration among the 
Departments of Labor, Defense, and Veterans Affairs. Commenters 
expressed concern about the administrative and financial burden related 
to the linkage agreement requirement. Several commenters also opined 
that requiring contractors to have three linkage agreements per 
establishment could result in a Federal contractor with multiple 
establishments having to enter into hundreds of linkage agreements. 
Commenters also questioned the capacity of some of the organizations 
mentioned in the proposed rule to enter into a significant number of 
linkage agreements with contractors. Additionally, we received comments 
from contractors that were already party to linkage agreements with 
various groups. These commenters asked whether they would need to enter 
into three additional linkage agreements, or if their existing 
agreements could be used to satisfy the requirement. Some commenters 
stated that contractors should be allowed the flexibility to develop 
relationships with potential resource organizations that may better 
meet their needs but that were not among those listed in the NPRM. 
Finally, many commenters suggested adding other specific recruitment 
sources to those listed in the NPRM or on the NRD, such as State 
developmental disability, and mental health agencies. These commenters 
also suggested that the NPRM's reference to career offices of 
educational institutions and private recruitment sources be revised to 
specify that these be offices and recruitment sources that ``specialize 
in the placement of individuals with disabilities.''
    In light of these comments, and in order to reduce the burden on 
contractors, the final rule does not incorporate the proposal to 
mandate contractors' listing of employment opportunities with the One 
Stop Career Centers. Additionally, the final rule does not incorporate 
the proposal to require contractors to enter into linkage agreements. 
Rather, the final rule retains the existing language of Sec.  60-
741.44(f)(1)(i) which requires the contractor to undertake 
``appropriate outreach and positive recruitment activities,'' and 
provides a number of suggested resources, in paragraph (f)(2)(i), that 
contractors may utilize to carry out this general outreach and 
recruitment obligation. The final rule also includes, as suggested 
resources, the Employment One-Stop Career Centers (One-Stops) and 
American Job Centers, State mental health agencies, and State 
developmental disability agencies. Additionally, language was added to 
the recommended resources of ``placement or career offices of 
educational institutions'' and ``private recruitment sources, such as 
professional organizations or employment placement services'' to 
clarify that these should be resources ``that specialize in the 
placement of individuals with disabilities.''
    The final rule's approach requires contractors to engage in 
outreach and recruitment efforts, but allows each individual contractor 
the flexibility to choose the specific resources they believe will be 
most helpful in identifying and attracting protected individuals with 
disabilities, given their particular needs and circumstances. It will 
also enhance contractors' capability to switch between and among 
different resources in order to find and maintain the resource ``mix'' 
that is most effective.
    Lastly with regard to paragraph (f)(1), several commenters argued 
that OFCCP underestimated the burden hours associated with complying 
with the proposed paragraph (f)(1)(iii) (paragraph (f)(1)(ii) in the 
final rule), which requires the contractor to send written notification 
of company policy related to its affirmative action efforts to all 
subcontractors, including subcontracting vendors and suppliers. OFCCP 
retains this requirement as proposed, as we believe it is crucial to 
effective implementation and enforcement of the regulations that 
subcontractors are aware of their section 503 affirmative action 
obligations. A discussion of commenters' concerns regarding the burden 
of compliance with this requirement is found in the Regulatory 
Procedures section of this final rule.
    OFCCP received several comments regarding proposed paragraph 
(f)(2), which set forth additional suggested outreach efforts that 
contractors could engage in to increase the effectiveness of its 
recruitment efforts. These comments centered on paragraph (f)(2)(vi), 
which stated that contractors, in making hiring decisions, ``shall'' 
consider applicants who are known individuals with disabilities for all 
available positions for which they may be qualified when the 
position(s) applied for is unavailable. Commenters indicated that 
despite paragraph (f)(2)'s language that it contains ``suggested 
outreach efforts,'' the word ``shall'' suggested that the contents of 
paragraph (f)(2)(vi) were mandatory. The use of ``shall'' in this 
paragraph was an inadvertent error in the NPRM. The content of proposed 
paragraph (f)(2) appears in paragraph (f)(2)(ii) of the final rule. The 
content of proposed (f)(2)(vi) appears in paragraph (f)(2)(ii)(F) of 
the final rule, revised to state that contractors ``should consider 
applicants[hellip]'' We also note that this suggested activity is 
intended to be a limited one. Contractors who choose to consider 
individuals with disabilities for jobs other than those for which they 
applied may exercise discretion to limit this consideration based on 
geography, the qualifications of the applicant, and other factors. 
Contractors may also exercise discretion with respect to the time 
period for which they will consider applicants for other positions. 
This provision is intended to be flexible and is not required of 
contractors.
    Paragraph (f)(3) of the NPRM proposed to require the contractor, on 
an annual basis, to review the outreach and recruitment efforts it has 
undertaken over the previous twelve months and evaluate their 
effectiveness in identifying and recruiting individuals with 
disabilities, and document its review. Some commenters supported the 
proposed requirement, some suggested less frequent review, and others 
opposed this proposed requirement. Several commenters expressed concern 
about the utility of the suggested metrics for analyzing external 
outreach and recruitment efforts. One commenter stated that if the

[[Page 58699]]

only standard used for assessing outreach and recruitment is the number 
of individuals with disabilities who are hired, the proposed rule would 
effectively become a quota system for hiring individuals with 
disabilities. Another commenter questioned whether overall hiring 
statistics would provide much useful information about the 
effectiveness of specific outreach efforts. Commenters also expressed 
concerns about the requirement to analyze hiring data for the current 
year as well as the previous two years. Commenters argued that the most 
recent year is the most relevant year in measuring effectiveness of 
affirmative action efforts. Finally, commenters also questioned OFCCP's 
calculation of the cost of compliance with this provision.
    OFCCP declines to make changes to the proposed paragraph (f)(3). 
The purpose of the mandated self-assessment is to ensure that the 
contractor thinks critically about its recruitment and outreach 
efforts, and modifies its efforts as needed to ensure that its 
obligations are being met. OFCCP disagrees that the number of 
individuals with disabilities who are hired is the ``only'' standard 
for analyzing the effectiveness of outreach efforts. The proposed rule 
made clear that the number of individuals with disabilities who are 
hired is to be a primary factor considered, given section 503's stated 
purpose to ``employ and advance in employment'' individuals with 
disabilities, but is not the only metric for contractors to use for 
analyzing the effectiveness of external outreach and recruitment 
efforts. Rather, as stated in the NPRM, the regulation requires the 
contractor to consider all the metrics required by Sec.  60-741.44(k) 
(which includes both applicant and hiring data), and also clearly 
allows the contractor to consider any other criteria, including factors 
that are unique to a particular contractor, in determining the 
effectiveness of its outreach, so long as the criteria are reasonable 
and documented by the contractor so that OFCCP compliance officers can 
understand the rationale behind the contractor's self-assessment and 
the conclusions reached. OFCCP believes that this self-assessment is 
crucial to the contractor's section 503 affirmative action obligations, 
and that the final rule provides the contractor a significant amount of 
flexibility in meeting this requirement.
    With regard to the lengthened timeframe of applicant and hire data 
that the contractor must consider when evaluating its outreach efforts, 
OFCCP notes that in response to comments, it has reduced this time 
period from 5 years to 3 years. As explained in the NPRM, the purpose 
of requiring consideration of additional data for the self-assessment 
is to provide more complete information with which a contractor can 
assess the effectiveness of its outreach and recruitment efforts over 
time. In short, the additional information will enable the contractor 
and OFCCP to more accurately review outreach and recruitment efforts to 
ensure that the affirmative action obligations of paragraph (f) are 
satisfied. Accordingly, we retain paragraph (f)(3) in the final rule as 
proposed in the NPRM. The comments regarding the burden imposed by this 
provision, including a revised calculation of its cost, can be found in 
the Regulatory Procedures section of this final rule.
    The final rule makes one minor change to the second to last 
sentence in paragraph (f)(3). As explained in the preamble to the NPRM, 
OFCCP proposed that the contractor's conclusion as to the effectiveness 
of its outreach efforts ``shall be reasonable as determined by OFCCP in 
light of these regulations.'' The final rule replaces the word 
``shall'' with ``must,'' which more clearly describes the requirement.
     Paragraph (g): Internal dissemination of affirmative 
action policy
    Paragraph (g) of the existing rule requires contractors to develop 
internal procedures to communicate to employees their obligation to 
engage in affirmative action efforts to employ and advance in 
employment qualified individuals with disabilities. The NPRM proposed 
requiring the contractor to undertake many specific actions that are 
only suggested in the existing rule, including incorporating the 
affirmative action policy in company policy manuals, discussing the 
affirmative action policy during management training programs to ensure 
they are informed about the contractor's obligations, and if the 
contractor is a party to a collective bargaining agreement, meeting 
with union officials and employee representatives to inform them of the 
policy and ask for their cooperation. OFCCP received nine comments 
regarding Sec.  60-741.44(g), including comments from a disability 
association, employer associations, contractors, and a law firm.
    Several of these comments supported the proposed requirement, while 
others sought some clarification, and still others indicated that the 
requirement imposed an unnecessary burden.
    Some commenters requested alternative options to including the 
affirmative action policy in the contractor's policy manual pursuant to 
the proposed 60-741.44(g)(2)(i). One commenter suggested instead, for 
example, that contractors be permitted to post the policy on the 
company's intranet where similar human resources and EEO pronouncements 
are found. One comment requested that OFCCP clarify how contractors 
could post their policy in the absence of having a policy manual.
    The final rule adopts the proposed language in Sec.  60-
741.44(g)(1) without change. This paragraph sets out the general 
requirement that contractors internally disseminate their affirmative 
action policy and explains the reasons for the requirement. It clearly 
states that the procedures for internally disseminating affirmative 
action policies ``shall be designed to foster understanding, acceptance 
and support among the contractor's executive, management, supervisory 
and other employees and to encourage such persons to take the necessary 
actions to aid the contractor in meeting this obligation.''
    The remainder of paragraph (g) is streamlined and revised in the 
final rule to ease the burden on contractors, while ensuring that 
contractors must communicate their affirmative action obligations and 
policies internally. Two of the three actions the NPRM proposed in 
paragraph (g)(2) are maintained as requirements in paragraph (g)(2) of 
the final rule: (1) including the policy in the contractor's policy 
manual; and (2) informing union officials of the policy and requesting 
their cooperation, if the contractor is party to a collective 
bargaining agreement. However, these requirements are modified 
slightly, based on the comments received. The first has been modified 
to allow contractors to include the affirmative action policy either in 
the contractor's policy manual, or to ``otherwise make the policy 
available to employees.'' We believe that most companies generally have 
some form of document that provides guidance on human resources 
policies and procedures--either a policy manual, employee handbook, or 
similar document--that is available to employees that is an appropriate 
place to put the policy. OFCCP believes including the affirmative 
action policy in these documents will enhance the visibility of the 
contractor's commitment to individuals with disabilities. However, the 
final rule also allows contractors the flexibility to make the policy 
available to its employees through other means. This could include 
posting the policy on a company intranet, but this will only fulfill 
the requirement if all employees have access to this intranet. The 
second

[[Page 58700]]

requirement, regarding informing union officials, is modified for 
consistency and clarity to reflect the requirement in Sec.  60-
741.5(a)(5) that the contractor ``notify'' union officials of its 
policy.
    The remaining elements that were required in the NPRM or suggested 
in the existing rule now appear in paragraph (g)(3) of the final rule 
as actions that the contractor is ``encouraged'' to take. The 
recordkeeping provision that was in proposed paragraph (g)(3) is 
eliminated in the final rule. We note, however, that to the extent any 
activities undertaken pursuant to paragraph (g) involve the creation of 
records, they are subject to the general recordkeeping requirement of 
Sec.  60-741.80 and contractors will be required to maintain such 
documents as specified by Sec.  60-741.80.
     Paragraph (h): Audit and reporting system for affirmative 
action program
    Paragraph (h) of the existing rule outlines the contractor's 
responsibility to design and implement an audit and reporting system 
for the company's AAP. It also requires, in paragraph (h)(2), that 
contractors undertake necessary action to bring deficient programs into 
compliance. The NPRM proposed a new requirement that contractors 
document the actions taken to comply with paragraph (h). The NPRM also 
proposed that contractors maintain the records of their documentation 
subject to the recordkeeping requirements of Sec.  60-741.80. OFCCP 
received nine comments on this provision. Of these, seven asserted that 
the proposed recordkeeping requirement would be burdensome and require 
the development of new processes, while two supported this requirement 
recognizing the need for and benefits of self-audits.
    This section is adopted into the final rule as proposed. The 
section requires the contractor to measure the effectiveness of its 
affirmative action program, indicate any need for remedial action, 
determine the degree to which the contractor's objectives have been 
attained, determine whether individuals with disabilities have had the 
opportunity to participate in all company professional and social 
activities, and measure the contractor's compliance with the 
affirmative action program's specific obligations. OFCCP believes that 
the proper conduct of the analysis required in paragraph (h) will 
necessitate the creation of documentation. Paragraph (h)(1)(vi) makes 
this expectation clear by requiring that the contractor document the 
actions it takes to comply with self-audit requirements of paragraph 
(h)(i). Contractors are further required to maintain this documentation 
in accordance with the recordkeeping requirements of Sec.  60-741.80. 
OFCCP believes that this requirement will allow for a more effective 
assessment, by contractors and by OFCCP, of whether the contractor is 
meeting its affirmative action obligations, including whether 
deficiencies have been identified and corrected.
     Paragraph (i): Responsibility for implementation
    The NPRM proposed to modify existing paragraph (i) to require that 
the identity of the official responsible for a contractor's affirmative 
action activities appear on all internal and external communications 
regarding the contractor's affirmative action program. Upon further 
review, OFCCP does not believe that the benefit of this suggested 
change outweighs the potential burden that it would place on 
contractors. Accordingly, the final rule restores the text of the 
existing regulation, which states that the identity of the official 
responsible for a contractor's affirmative action activities ``should'' 
appear in all communications about the contractor's affirmative action 
program.
     Paragraph (j): Training
    Paragraph (j) of the existing regulation requires that the 
contractor train ``[a]ll personnel involved in the recruitment, 
screening, selection, promotion, disciplinary and related processes . . 
. to ensure that the commitments in the contractor's affirmative action 
program are implemented.'' The NPRM proposed revising this paragraph to 
specify topics required to be included in this training, including: the 
business and societal benefits of employing individuals with 
disabilities; appropriate sensitivity toward recruits, applicants, and 
employees with disabilities; and the legal responsibilities of the 
contractor and its agents regarding individuals with disabilities, 
including the obligation to provide reasonable accommodation to 
qualified individuals with disabilities. The NPRM also proposed 
requiring the contractor to record which of its personnel receive this 
training, when they receive it, and the person(s) who administered the 
training, and to maintain these records, along with all written or 
electronic training materials used, pursuant to the recordkeeping 
requirements of Sec.  60-741.80.
    OFCCP received 15 comments from disability and employer 
associations, contractors, and a law firm. Approximately half of the 
comments supported the proposed requirements, while the others opposed 
it. These latter comments raised concerns regarding the burden that 
training requirements place on contractors and the manner in which 
OFCCP calculated it. One comment noted specific concerns about what 
constitutes ``sensitivity'' training. Several commenters suggested that 
OFCCP develop a model training for contractors to use, instead of the 
contractor having to create additional training to what it currently 
provides.
    In light of these concerns, and balancing the utility of the 
proposal against the burden that it would create for contractors, the 
final rule does not incorporate the NPRM proposal requiring specific 
training topics and the maintenance of all training materials pursuant 
to Sec.  60-741.80. Instead, the final rule retains the existing rule's 
general requirement that ``[a]ll personnel involved in the recruitment, 
screening, selection, promotion, disciplinary, and related processes'' 
must be trained to ensure that the contractor's affirmative action 
commitments are implemented. However, we note that documents created by 
the contractor in connection with activities undertaken pursuant to 
paragraph (j) are subject to the general recordkeeping requirement of 
Sec.  60-741.80.
     Paragraph (k): Data Collection Analysis
    The proposed regulation added paragraph (k) to the rule, proposing 
to require that the contractor document and update annually the 
following information: (1) For referral data, the number of referrals 
of individuals with disabilities received from entities with which the 
contractor has a linkage agreement and the number of referrals of 
individuals with disabilities received from employment service delivery 
systems; (2) for applicant data, the total number of applicants for 
employment, the number of applicants who are known individuals with 
disabilities, and the ``applicant ratio'' of known individuals with 
disabilities who are applicants to total applicants; (3) for hiring 
data, the total number of job openings, the number of jobs filled, the 
number of known individuals with disabilities hired, and the ``hiring 
ratio'' of known individuals with disabilities to total hires; and (4) 
the total number of job openings, the number of jobs that are filled, 
and the ``job fill ratio'' of job openings to job openings filled.
    The NPRM stated that OFCCP is also considering adding a reporting 
requirement, and invited public comment on this option. Under this 
proposal, contractors would be required to provide OFCCP with a report 
containing the measurements and computations required by proposed

[[Page 58701]]

paragraph (k), including the percentage of applicants, new hires, and 
total workforce for each EEO-1 category. The report would be provided 
to OFCCP on an annual basis, regardless of whether the contractor has 
been selected for a compliance evaluation.
    As stated in the NPRM, the impetus behind this new section is that 
no structured data regarding the number of individuals with 
disabilities who are referred for or apply for jobs with Federal 
contractors is currently maintained. This absence of data makes it 
nearly impossible for the contractor and OFCCP to perform even 
rudimentary evaluations of the availability of individuals with 
disabilities in the workforce, or to make any sort of objective, data-
based assessments of how effective contractor outreach and recruitment 
efforts have been in attracting individuals with disabilities as 
candidates. Maintaining this information will provide meaningful data 
to assist the contractor in evaluating and tailoring its recruitment 
and outreach efforts.
    OFCCP received a total of 80 comments from disability, contractor 
and other associations, law firms, government offices, contractors, and 
individuals. Disability and other associations, and some contractors 
and individuals that commented supported the required data collection 
and the objectives behind it. The contractor community, by and large, 
opposed the proposal on varying grounds, including: concerns regarding 
the integrity of the data to be collected (particularly data on 
referrals); assertions that some of the data conflicts with the 
Internet Applicant Rule in the Executive Order regulations; and 
assertions that collecting, analyzing, and maintaining the data would 
be unduly burdensome. Several commenters from the construction and 
transportation industries asserted that they should be exempt from the 
requirement due to the unique nature of their respective industries. 
Finally, a number of commenters sought clarification of some of the 
processes set forth in paragraph (k). These issues are addressed below.
    Several comments articulated data integrity concerns regarding the 
data to be used in calculating the referral ratio. Commenters 
characterized the state employment service delivery systems as ``self-
service,'' leaving source identification to the job candidates, thus 
making referral data unreliable and not meaningful. Examples were 
provided indicating that individuals frequently apply directly online 
with a company and may fail to identify that he or she was referred, 
and that he or she is an individual with a disability. These commenters 
also expressed concern that referral data may include referrals of 
individuals that are not qualified for the position(s) at issue. OFCCP 
believes that the points raised regarding the practical utility of the 
referral data have merit. Accordingly, OFCCP has eliminated from the 
final rule the requirement, in proposed paragraphs (k)(1) and (k)(2), 
for contractors to collect, maintain, and analyze information on the 
number of referrals it receives.
    Many of these comments also asserted data integrity concerns 
regarding the requirement to document and maintain applicant and hiring 
ratios, including that applicant data appears to be dependent upon 
self-identification, which is not reliable. These issues were 
previously addressed in the discussion of the requirement to invite 
applicants to self-identify as individuals with disabilities in Sec.  
60-741.42(a). In short, demographic data based on self-identification 
is not perfect, but it is nonetheless valuable and the best data that 
is available.
    Another concern asserted by commenters is that the proposed data 
collection and analysis is not ``aligned'' with the availability 
analysis conducted when examining employment activities for females and 
minorities. However, as discussed in the preamble to the goal 
requirement in Sec.  60-741.45, below, it is not feasible to have the 
data collection for section 503 exactly mirror that of the Executive 
Order 11246 regulations.
    Commenters also questioned the purpose of the job opening/job 
filled ratio. Upon reconsideration, OFCCP agrees that it is not 
necessary for contractors to calculate the job fill ratio and has 
deleted from the final rule the requirement, in proposed paragraph 
(k)(5), for contractors to calculate and maintain the ratio of jobs 
filled to job openings. OFCCP has also eliminated the requirement to 
calculate an applicant ratio in proposed paragraph (k)(7), and the 
requirement to calculate a hiring ratio in proposed paragraph (k)(10). 
Thus, the final rule requires that contractors need only collect and 
maintain the raw data regarding the number of applicants with 
disabilities, the total number of job openings and jobs filled, the 
total number of applicants, the number of applicants with disabilities 
hired, and the total number of applicants hired.
    Several commenters also objected to the collection of data about 
the disability status of applicants because it differs from the 
recordkeeping requirements related to Internet applicants under the 
Executive Order 11246 implementing regulations at 41 CFR 60-1.12. In 
recognition of these concerns, and as explained in the preamble 
discussion of Sec.  60-741.42(a), in an effort to harmonize 
requirements across the various regulations OFCCP enforces, OFCCP will 
permit contractors to invite applicants to self-identify as an 
individual with a disability at the same time as the contractor 
collects the demographic data for applicants required under the 
Executive Order. OFCCP will also treat the recordkeeping provisions of 
section 503 at 41 CFR 60-741.80 in the same manner as the recordkeeping 
requirements under the Executive Order at 41 CFR 60-1.12 as applied to 
Internet applicants. With regard to burden calculation issues, many 
commenters, including employer associations, contractors, and 
individuals, indicated that OFCCP had not correctly calculated the 
burden of this section. Specific cost information was provided by 
several commenters. A revised burden calculation is included in the 
Regulatory Procedures section of this final rule. We highlight a few 
points here, however, because it appears that the contractor community 
may misunderstand portions of the obligation they are expected to 
undertake. First, as stated above, the referral data metrics have been 
eliminated, which reduces the burden. We have also eliminated the 
calculation of the job fill, applicant, and hiring ratios. Second, job-
specific hiring data is already collected and maintained by contractors 
pursuant to the Executive Order 11246 program. Moreover, hiring metrics 
are also maintained and calculated by Federal contractors subject to 
VEVRAA pursuant to their existing obligation, under 41 CFR part 61-300, 
to file the VETS-100A form. Therefore, that portion of paragraph (k) 
requiring contractors to document the total number of job openings and 
total number of hires does not create any additional burden. The only 
``new'' items are those pertaining to the self-identification applicant 
data. However, the burden for collecting and maintaining the applicant 
data is already partially calculated under Sec.  60-741.42(a).
    Also pertaining to burden, commenters for the construction and 
transportation industries asserted that they should be exempted from 
this section of the proposed regulation because of the unique nature of 
the industries. Traditionally, construction and transportation 
contractors who meet the basic coverage thresholds (contract amount and 
number of employees) of section 503 have not been exempted from any of 
its provisions. Accordingly,

[[Page 58702]]

we decline to exempt construction and transportation contractors.
    The majority of commenters also cited burden concerns with the 
proposed requirement to maintain the paragraph (k) computations for a 
period of five (5) years. As set forth in the discussions of Sec.  60-
741.44(f)(4) and Sec.  60-741.80 herein, the final rule reduces the 
document retention requirement to three (3) years, and revises the 
language of paragraph (k) to reflect this change.
    A few of the comments also raised clarification questions we would 
like to address, including: (1) Whether the intent of the analyses is 
to measure change from year to year; (2) whether the ratios should be 
run by job group, job title, or establishment; and (3) how compliance 
determinations will be made. As to the first question, measuring change 
from year to year, and looking at two previous years of data, is a 
central intent of the analyses, as that can aid the contractor in 
seeing trends that may be associated with certain of its outreach and 
recruitment efforts over time. However, as previously discussed with 
regard to the self-assessment required in paragraph (f)(3) of this 
section, contractors are also free to use any other reasonable criteria 
in addition to the applicant and hiring data they feel is relevant to 
evaluate the effectiveness of its efforts. As to the second question, 
the ratios in paragraph (k) will be calculated by establishment, and 
not by job groups or titles within a given establishment, unless OFCCP 
has approved the contractor's development and use of a functional 
affirmative action program (FAAP) pursuant to 41 CFR 60-2.1(d)(4).
    With regard to the third question, compliance determinations for 
paragraph (k) will be made based simply on whether the contractor has 
completely and accurately documented and maintained the eight listed 
metrics in the final rule. OFCCP Compliance Officers will not be using 
the applicant and hiring data to conduct underutilization or impact 
ratio analyses, as is the case under Executive Order 11246, and 
enforcement actions will not be brought solely on the basis of 
statistical disparities between individuals with, and without, 
disabilities in this data. Rather, Compliance Officers will look to see 
whether the contractor has fulfilled its various obligations under 
Sec.  60-741.44, including its obligation, pursuant to Sec.  60-
741.44(f)(3), to critically analyze and assess the effectiveness of its 
recruitment efforts, using the data in paragraph (k) and any other 
reasonable criteria the contractor believes is relevant, and has 
pursued different or additional recruitment efforts if the contractor 
concludes that its efforts were not effective.
    On the topic of OFCCP's invitation for public comments regarding 
the possible addition of a new annual reporting requirement, we 
received 20 comments. The majority of these comments asserted that the 
proposed requirement would impose an unnecessary additional burden. 
Several commenters stated that OFCCP did not provide any support or 
justification for proposing the requirement. A few of these commenters 
indicated that such a report would serve no other purpose than to 
assist OFCCP in the scheduling of compliance reviews. A few commenters 
supported the proposed reporting requirement, asserting that the data 
is needed to better ensure equal employment opportunities for 
individuals with disabilities. After weighing the practical utility of 
this potential reporting requirement against its anticipated burden 
OFCCP has determined that the imposition of this new reporting 
requirement is not warranted at this time. Accordingly, this proposal 
is not adopted into the final rule.

Section 60-741.45 Reasonable Accommodation Procedures

    The NPRM proposed a new provision at Sec.  60-741.45 requiring 
contractors to develop and implement written procedures for processing 
requests for reasonable accommodation. The proposal identified specific 
elements that the contractor's reasonable accommodation procedures, at 
a minimum, would be required to address. These included: (1) contact 
information for the official responsible for implementation of the 
procedures; (2) to whom a request for reasonable accommodation may be 
made; (3) a statement that requests for reasonable accommodation may be 
made orally or in writing by an applicant, employee, or third party on 
his or her behalf; (4) written confirmation of receipt of a reasonable 
accommodation request; (5) a timeframe for the processing of reasonable 
accommodation requests; (6) a description of the contractor's 
reasonable accommodation process and circumstances under which the 
contractor may request medical documentation to support a reasonable 
accommodation request; and (7) provision of a written explanation by 
the contractor for any denials of reasonable accommodation.
    OFCCP received 80 comments on this proposal from disability 
associations, employer associations, contractors, and law firms. The 
disability associations were strongly supportive of the proposed 
requirement. They asserted that it would foster contractor 
understanding of their reasonable accommodation obligation, encourage 
individuals who need reasonable accommodation to come forward and make 
a request, and promote efficiency in the processing of reasonable 
accommodation requests. Many of these commenters also recommended that 
the scope of the proposed requirement be expanded to encompass all 
Federal contractors subject to section 503 by relocating the 
requirement from the ``affirmative action'' subpart of the regulations 
(Subpart C) to the ``nondiscrimination'' subpart of the regulations 
(Subpart B).
    In contrast, the majority of the contractor community objected to 
the new requirement for a variety of reasons. Many stated their belief 
that a mandated, ``formal'' process was unnecessary since most 
employers were already accustomed to making reasonable accommodations 
as required by the ADA. Some characterized the proposal as a ``one size 
fits all'' approach that would impede the ability of contractors to 
individually address reasonable accommodation requests, and to grant 
requests for accommodation informally (e.g., leave time for doctor 
visits or a modified work schedule to attend therapy sessions). 
Finally, commenters asserted that the requirement to develop written 
reasonable accommodation procedures, to provide written confirmation of 
reasonable accommodation requests, and to provide written explanations 
of any denials of reasonable accommodation was unduly burdensome.
    Upon further consideration of the burden associated with this 
provision, OFCCP has decided not to incorporate this proposal into the 
final rule. OFCCP, however, notes in new paragraph (d)(2) to Sec.  60-
741.44 of the final rule, that the use of written reasonable 
accommodation procedures is a best practice that may assist contractors 
in meeting their reasonable accommodation obligations. The paragraph 
makes clear that contractors are not required to have or use such 
procedures, and that not having such procedures is not violation of 
this part. OFCCP has also added a new Appendix B entitled Developing 
Reasonable Accommodation Procedures providing specific guidance that 
contractors may use should they choose to adopt this best practice.
    Although OFCCP is not incorporating the written reasonable 
accommodation procedures requirement into the final

[[Page 58703]]

rule, we wish to note our disagreement with those commenters who assert 
that written procedures would prevent contractors from individually 
addressing reasonable accommodation requests. Rather, we believe that 
having such procedures would serve to reinforce the obligation to 
individually address each person's request for reasonable 
accommodation. Moreover, in OFCCP's view, written reasonable 
accommodation procedures would not hamper a contractor's ability to 
informally grant accommodation requests, such as leave for visits to 
the doctor or a modified work schedule to attend therapy sessions. If a 
contractor has flexible leave or scheduling policies, having written 
reasonable accommodation procedures would not interfere with the 
granting of requests for leave or modified work schedules by employees 
with disabilities simply because the request is made to accommodate a 
disability.

Section 60-741.46 Utilization Goals

    Section 60-741.46 of the NPRM (renumbered as Sec.  60-741.45 in the 
final rule) proposed a single, national 7 percent utilization goal for 
individuals with disabilities for each job group in a contractor's 
workforce. It proposed that covered contractors annually evaluate the 
representation of individuals with disabilities in each job group in 
the contractor's workforce against the 7 percent utilization goal. If 
the percentage of employees with disabilities in one or more job groups 
is less than the 7 percent utilization goal, the NPRM proposed that the 
contractor develop and execute action-oriented programs designed to 
correct any identified barriers to equal employment opportunity for 
qualified individuals with disabilities. Although it proposed a 7 
percent goal, the NPRM invited the public to comment on a range of goal 
values between 4 percent and 10 percent. In addition, the NPRM alerted 
the public that OFCCP was considering an option of a sub-goal of 2 
percent for individuals with certain particularly severe disabilities 
as part of the overall 7 percent goal, and invited public comment on 
this sub-goal option. Specifically, OFCCP requested comment on the 
concept of a sub-goal, as well as the disabilities to be included in 
the sub-goal.
    OFCCP received 250 comments on this section from a broad range of 
perspectives, including contractors, law firms, government agencies, 
organizations representing individuals with disabilities and those 
representing contractors, as well as from individuals. The comments 
represented divergent views on the institution of a single, national 
utilization goal. In general, the disability community and those 
representing their interests were strongly in support of this new 
requirement. For these commenters, affirmative action efforts under 
section 503 have been largely meaningless without, among other things, 
measurable goals for the employment of people with disabilities. By and 
large, these commenters urged OFCCP to increase the utilization goal 
from 7 percent to 10 percent and to adopt a sub-goal of 5 percent for 
individuals with severe disabilities. In contrast, commenters from the 
contractor community and those representing their interests were 
largely opposed to this provision and to the sub-goal option for 
various reasons, including: (1) OFCCP lacks authority to mandate the 7 
percent goal; (2) the utilization goal is equivalent to a quota; (3) 
use of ACS data is arbitrary and ineffective; and (4) the goal approach 
is unworkable as proposed. The proposed utilization goal, comments to 
the proposal, and the subsequent revisions made in the final rule are 
discussed in turn below. Comments related to the burden estimates 
associated with this section are addressed in the Regulatory Procedures 
section of the final rule.
     Paragraph (a): Establishment of a single, national 
utilization goal
    Paragraph (a) of the NPRM proposed to establish for the first time 
a single, national utilization goal of 7 percent for employment of 
individuals with disabilities for each job group within a contractor's 
workforce.\19\ As explained in the NPRM, the current section 503 
regulatory framework requires affirmative action but lacks a goal. This 
has been the case since the initial publication of the section 503 
regulations in the 1970s, but the intervening years have seen little 
improvement in the unemployment and workforce participation rates of 
individuals with disabilities. OFCCP determined that affirmative action 
process requirements, without a quantifiable means of assessing whether 
progress toward equal employment opportunity is occurring, are 
insufficient. We therefore concluded that the establishment of a 
utilization goal would create more accountability within the 
contractor's organization and provide a much-needed tool to help ensure 
that progress toward equal employment opportunity is achieved.
---------------------------------------------------------------------------

    \19\ OFCCP received several comments seeking clarification of 
the difference between a utilization goal and a placement goal. A 
placement or hiring goal relates to the percentage of new hires from 
a particular group, such as individuals with disabilities. In 
contrast, a utilization goal relates to the percentage of a 
contractor's workforce represented by a particular group, in this 
instance, individuals with disabilities.
---------------------------------------------------------------------------

     Methodology for Setting the Utilization Goal
    As explained in the NPRM, the utilization goal established in this 
section is derived primarily from the disability data collected as part 
of the American Community Survey. The American Community Survey (ACS) 
was designed to replace the census ``long form'' of the decennial 
census, last sent out to U.S. households in 2000, to gather information 
regarding the demographic, socioeconomic and housing characteristics of 
the nation. Whereas the Census Bureau now only administers a very short 
survey for the decennial census, a more detailed view of the social and 
demographic characteristics of the population is provided by the ACS, 
which collects data from a sample of 3 million residents on a 
continuing basis.\20\
---------------------------------------------------------------------------

    \20\ A national sample of approximately 3 million addresses 
nationwide receives the ACS each year, with a portion of this total 
receiving the survey each month. For more information on the 
American Community Service visit the Census Bureau's ACS Web page at 
www.census.gov/acs.
---------------------------------------------------------------------------

    The ACS was first launched in 2005, after a decade of testing and 
development by the Census Bureau. Refinement of the questions designed 
to characterize disability status has been continuous, with the current 
set of disability-related questions incorporated into the ACS in 2008. 
Taken together, the six dichotomous (``yes'' or ``no'') disability-
related questions \21\ comprise a function-based definition of 
``disability,'' used in the ACS and by most of the other major surveys 
administered by the Federal Statistical System.
---------------------------------------------------------------------------

    \21\ The six questions are: Is this person deaf or does he/she 
have serious difficulty hearing? Is this person blind or does he/she 
have serious difficulty seeing even when wearing glasses? Because of 
a physical, mental, or emotional condition, does this person have 
serious difficulty concentrating, remembering, or making decisions? 
Does this person have serious difficulty walking or climbing stairs? 
Does this person have difficulty dressing or bathing? Because of a 
physical, mental, or emotional condition, does this person have 
difficulty doing errands alone such as visiting a doctor's office or 
shopping? 2009 American Community Survey, Questions 17-19.
---------------------------------------------------------------------------

    The definition of disability used by the ACS, however, is clearly 
not as broad as that of the Rehabilitation Act and the ADA. For 
example, since the ACS questions do not say that one should respond 
without considering mitigating measures (e.g., medication or aids), 
some individuals with disabilities that are well-controlled by 
medication (e.g., depression or epilepsy) or in

[[Page 58704]]

remission might respond to the ACS that he or she does not have a 
disability. Likewise, since the ACS questions do not include major 
bodily functions, an individual who has a disability that substantially 
limits a major bodily function, but does not limit a major life 
activity as originally defined in the ADA, might respond that he or she 
does not have a disability on the ACS. Despite its limitations, the ACS 
is the best source of nationwide disability data available today, and, 
thus, an appropriate starting place for developing a utilization goal.
    In developing the utilization goal, OFCCP considered two general 
approaches. The first approach OFCCP considered aimed to mirror 
precisely the goals framework for minorities and women that is used by 
supply and service (non-construction) contractors subject to Executive 
Order (EO) 11246. Such an approach would have required individual 
contractor establishments to set their own goals for each of their job 
groups \22\ based on the percentage of individuals with disabilities 
available in the particular recruitment area from which the contractor 
sought to fill the jobs in the job group. Where there are fewer than 
expected incumbent employees with disabilities in a job group given 
their availability percentage, a contractor would be required to 
establish a goal for the specific job group that is at least equal to 
the availability percentage in the job group's recruitment area. See 41 
CFR 60-2.12--60-2.16 for a more detailed description of the EO 11246 
goals provisions for supply and service contractors.
---------------------------------------------------------------------------

    \22\ Job groups usually contain one to three jobs each. However, 
contractors with fewer than 150 employees may use the broader EEO-1 
job categories in place of smaller job groups.
---------------------------------------------------------------------------

    After careful consideration of the available data and consultation 
with the U.S. Census Bureau regarding the level of geographic 
aggregation at which the disability data could be analyzed, OFCCP 
became convinced that replicating the supply and service goals 
framework would not be the most effective approach for the 
establishment of goals for individuals with disabilities. Supply and 
service contractors establishing goals for minorities and women 
typically use the Special EEO Tabulation of census data to assist them. 
The results of the 2000 decennial census can be tabulated for 472 
occupation categories and thousands of geographic areas. However, 
because the ACS disability data is based on sampling, and because the 
percentage of that sample who identify as having a disability is 
considerably smaller than the percentage that provide race and gender 
information, it cannot be broken down into as many job titles, or as 
many geographic areas as the data for race and gender. That is, the 
confidence intervals on such estimates are large and the estimates are 
not statistically significant when broken down to the degree of detail 
required by the supply and service goals framework. Contractors 
therefore would not be able to use the job groups established under 
Executive Order 11246 to establish goals for individuals with 
disabilities, and would often be unable to utilize the geographic 
recruitment areas established under the Executive Order when 
determining the availability of individuals with disabilities (as 
queried in the ACS).\23\ In addition, the Executive Order supply and 
service goals framework does not include consideration of discouraged 
workers in computing availability, a factor particularly important in 
the context of disability, as discussed below.
---------------------------------------------------------------------------

    \23\ On November 29, 2012, the Census Bureau released the new 
2006-2010 EEO Tabulation (EEO Tab) to the public. The new EEO Tab 
replaces the 2000 Special EEO Tabulation. It is based on five years 
of demographic data from the ACS, rather than on a decennial census, 
tabulates data for 488 occupations including several occupations not 
previously included in the 2000 Special EEO Tabulation, and includes 
data by citizenship status. The EEO Tab is online at http://www.census.gov/people/eeotabulation/.
     On March 14, 2013, the Census Bureau launched the first of its 
kind 2008-2010 Disability Employment Tabulation (Disability Tab) 
containing statistical information regarding the employment status, 
earnings, race, ethnicity and occupations of individuals with 
disabilities. The Disability Tab, online at http://www.census.gov/people/disabilityemptab/data, was sponsored by the U.S. Department 
of Labor and, in contrast to the EEO Tab, is intended to be a 
research resource rather than an enforcement tool. Although the 
Disability Tab includes data for each occupation in the EEO Tab, 
important differences between the tabs make the Disability Tab 
impractical for contractors to use to set individual placement goals 
for each of their Executive Order job groups. These differences 
include: (1) the Disability Tab uses three years of ACS data rather 
than the five years used in the EEO Tab; (2) the geographical 
designations of ``county sets'' and ``places'' (cities) are used in 
the EEO Tab but not in the Disability Tab; (3) the geographical 
designation of public use microareas (PUMAs) are used in the 
Disability Tab but not in the EEO Tab; and (4) the citizen-only 
tables in the Disability Tab contain occupation-specific data solely 
at the national level. In light of these differences, were we to 
require the establishment of individual disability placement goals 
using the Disability Tab many contractors would be forced to 
identify and utilize recruitment areas for this purpose different 
from those they currently use when establishing individual Executive 
Order goals. The creation of such a ``parallel'' process for the 
establishment of disability goals would be far more burdensome for 
contractors than the single, national utilization goal process 
established in this final rule.
---------------------------------------------------------------------------

    In light of the difficulties replicating the supply and service 
goals approach in the context of disability, OFCCP considered other 
options. OFCCP concluded that the establishment of a single, national 
goal \24\ for all jobs in all geographic areas is a more viable 
approach to the establishment of a goal for individuals with 
disabilities. This approach allows for the continued use of the 
contractor's Executive Order 11246 job groups, and requires that those 
job groups be used to measure the representation of individuals with 
disabilities in the contractor's workforce, except in cases of 
contractors with fewer than 100 employees, where contractors will have 
the option to apply the goal to their workforce as a whole. The goal 
established in this section is based on the 2009 ACS disability data 
for the ``civilian labor force'' and the ``civilian population,'' \25\ 
first averaged by EEO-1 job category, and then averaged across EEO-1 
category totals. Specifically, we used the mean across these EEO-1 
groups to estimate that 5.7 percent of the civilian labor force has a 
disability as defined by the ACS.\26\ However, OFCCP acknowledges that 
this number does not encompass all individuals with disabilities as 
defined under the broader definition in section 503 and the ADAAA. 
Therefore, 5.7 percent is an insufficient figure to use as an 
affirmative action goal for individuals with disabilities under section 
503.
---------------------------------------------------------------------------

    \24\ Disability rates by State for the civilian labor force has 
a mean of 6.32, median of 6.20, and standard deviation of 1.29. 
There are only two states, Alaska (9.0%) and Oklahoma (9.5%) that 
are outside the 95% confidence interval of this otherwise almost 
uniform distribution. This general uniformity is consistent with the 
use of a single national goal. See Table 15 in Affirmative Action 
for People with Disabilities--Volume I: Data Sources and Models, 
Economic Systems, Inc. (April 30, 2010) at 55.
    \25\ The civilian labor force is the sum of people who are 
employed and those who are unemployed and looking for work. The 
civilian population is the civilian labor force plus civilians who 
are not in the labor force, excluding those in institutions.
    \26\ Similarly, the Disability Tab found that between 2008 and 
2010 individuals with disabilities were 6% of the civilian labor 
force. See Census Bureau press release, Workers with a Disability 
Less Likely to be Employed, More Likely to Hold Jobs with Lower 
Earnings, Census Bureau Reports, (March 14, 2013) available online 
at http://www.census.gov/newsroom/releases/archives/american_community_survey_acs/cb13-47.html.
---------------------------------------------------------------------------

    Even if the 5.7 percent represented a complete availability figure 
for all individuals with disabilities as defined under section 503, 
such an availability figure does not take into account discouraged 
workers, or the effects of historical discrimination against 
individuals with disabilities that has suppressed the representation of 
such individuals in the workforce. Discouraged workers are those 
individuals who are not now seeking

[[Page 58705]]

employment, but who might do so in the absence of discrimination or 
other employment barriers. There are undoubtedly some individuals with 
disabilities who, for a variety of reasons, would not seek employment 
even in the absence of employment barriers. However, given the acute 
disparity in the workforce participation rates of those with and 
without disabilities, it is reasonable to assume that at least a 
portion of that gap is due to a lack of equal employment opportunity.
    To estimate the size of the discouraged worker effect, we compared 
the percent of the civilian population with a disability (per the ACS 
definition) who identified as having an occupation to the percent of 
the civilian labor force with a disability who identified as having an 
occupation. Though not currently seeking employment, it is reasonable 
to believe that those in the civilian population who identify as having 
an occupation, but who are currently not in the labor force, remain 
interested in working should job opportunities become available. Using 
the 2009 ACS EEO-1 category data, the result of this comparison is 1.7 
percent.\27\
---------------------------------------------------------------------------

    \27\ This number was derived from an updated 2009 version of 
Table 24 in Affirmative Action for People with Disabilities--Volume 
I: Data Sources and Models, Economic Systems, Inc. (April 30, 2010) 
at 64. The original table uses ACS data from 2008.
---------------------------------------------------------------------------

    Adding this figure to the 5.7 percent availability figure above, 
resulted in 7.4 percent.\28\ The national utilization goal prescribed 
in this section is derived from this total, rounded to 7 percent to 
avoid implying a false level of precision.
---------------------------------------------------------------------------

    \28\ As it is derived from ACS data, the 1.7% is also a limited 
number that does not fully encompass all individuals with 
disabilities as defined in section 503 and the ADA.
---------------------------------------------------------------------------

     Comments on paragraph (a)
    Many of the comments received on the proposed utilization goal 
addressed OFCCP's methodology for arriving at the 7 percent 
availability estimate, including the use of a discouraged worker 
estimate within the 7 percent figure. In general, commenters in favor 
of the proposed single, national utilization goal accepted the 
methodology used by OFCCP to derive the goal but urged OFCCP to 
increase the goal from 7 percent to 10 percent given that the ACS data 
upon which the goal is based is only partially representative of those 
covered by section 503. As confirmation that the 7 percent figure is 
too low, these commenters referred to the Final Regulatory Impact 
Analysis for the EEOC regulations implementing the ADA Amendments Act 
which estimated that somewhere between 20 percent and 64 percent of 
individuals covered by the ADA as amended participate in the labor 
force. Given this estimate, the commenters stated that OFCCP ought to 
aim higher than 7 percent. Within OFCCP's suggested range of between 4 
percent and 10 percent, these commenters urged the goal be set at 10 
percent.
    With regard to OFCCP's use of the discouraged worker effect, 
commenters in favor of the proposal noted that discouraged workers are 
those who have not looked for work not because they lack the desire to 
work, but rather because they believe that no work is available for 
them. The goal requirement should reflect the assumption that new 
outreach and recruiting efforts will have some effect in correcting the 
notion among discouraged workers that no jobs are available for 
individuals with disabilities. A number of these commenters also noted 
that the 1.7 percent estimate used by OFCCP is likely under-inclusive 
since the value was derived from the ACS data.
    OFCCP declines to adopt a 10 percent goal at this time. We 
recognize that 7 percent is an imprecise estimate based on a data set 
that is more narrow than the universe of individuals with disabilities 
protected under section 503. However, as explained above, this figure 
is derived from the best available source of workforce disability data 
that presently exists. In contrast, the 10 percent figure urged by many 
of the commenters is based solely on the general notion that 7 percent 
is too low, in light of the differing definitions of ``disability'' in 
the ACS and the ADA, and the EEOC's general estimate that somewhere 
between 20 percent and 64 percent of individuals covered by the ADA 
participate in the labor force. The commenters, however, did not 
suggest an alternative data base from which OFCCP could derive an 
appropriate utilization goal. Nor does the EEOC estimate, which 
juxtaposes the workforce participation rate of individuals with 
disabilities with the overall workforce participation rate for all 
adults (with and without a disability) age 16 and older, provide 
sufficiently specific information on which OFCCP could rationally base 
a utilization goal for individuals with disabilities. Indeed, EEOC did 
not use this estimate for such a purpose. See 76 FR 16978, 16991 (March 
25, 2011). Having said that, as indicated in the final rule at Sec.  
60-741.45(c), OFCCP will periodically review and update the utilization 
goal as data becomes more refined.
    A substantial number of commenters from the contractor community 
objected to the proposed 7 percent utilization goal on the grounds that 
it is arbitrary. They argued that the 7 percent figure is based on ACS 
data that is based on a definition of ``disability'' that is narrower 
than the term used under section 503. Without consistent definitions, 
they argue, the results are meaningless for establishing a goal for 
utilization of individuals with disabilities. Furthermore, the figure 
fails to take into account variations in occupational requirements, 
geography, industry, and nature of disabilities. Many commenters 
asserted that there is no statistical evidence to support the idea that 
the population of those with disabilities is distributed equally across 
all geographic areas. Additionally, one commenter noted that across the 
board goals are unrealistic because certain job groups will have 
inherent limitations. The commenter noted that there are some jobs for 
which some individuals with certain disabilities will never qualify. 
For instance, a person who is blind, deaf, or paralyzed would not be 
granted a commercial pilot's license by the Federal Aviation 
Administration. Given these variations, even the best intentioned 
contractor may have significant challenges meeting the utilization goal 
across all job groups.
    Still other commenters were opposed to applying a national goal to 
each job group because the goal as proposed represents an aggregate 
availability for individuals with disabilities across EEO category 
totals. Applying a number that represents the average availability 
across all categories to individual job groups would, thus, be 
inappropriate. Many of these commenters argued that OFCCP should delay 
imposing a utilization goal requirement until such time that data is 
available to enable goal setting in a manner similar to what is done 
under the EO 11246 supply and service affirmative action program.
    Finally, several commenters expressed concern about OFCCP's 
discouraged worker estimate. These commenters questioned the accuracy 
of the estimate and posited that many of those discouraged are not 
actually interested in employment at all. They state that the most 
obvious explanation for an individual's departure from the workforce is 
the disability itself. One commenter also objected to OFCCP inclusion 
in the goal of a 1.7 percent figure to account for individuals with 
disabilities who have become discouraged workers and for the effects of 
historical discrimination. This commenter stated that the Bureau of 
Labor Statistics reports discouraged workers with disabilities account 
for only 0.1 percent of the workforce.

[[Page 58706]]

    OFCCP recognizes that the 7 percent figure is less precise than the 
geographically specific availability information that contractors are 
familiar with under the Executive Order 11246 program, and that for 
some jobs in some locations availability of qualified individuals may 
be less than 7 percent. Furthermore, we recognize that the ACS data is 
based on a definition of disability that is narrower than that used 
under section 503. We disagree, however, that this is sufficient reason 
to eliminate the utilization goal. While not perfect, the goal will 
provide a yardstick against which contractors will be able to measure 
the effectiveness of their equal employment opportunity efforts. It is 
our belief that the goal will enable contractors to think critically 
about their employment practices, including their outreach, 
recruitment, and retention efforts, and help them to assess whether and 
where any barriers to equal employment opportunity for individuals with 
disabilities remain. If barriers are identified, then the contractor 
can move to take corrective action. Because the goal is intended solely 
as a tool, the final rule clearly states that a failure to meet the 
goal will not, in and of itself, result in a violation of section 503 
or a finding of discrimination. The goal is not a rigid and inflexible 
quota which must be met, nor is it to be considered either a ceiling or 
a floor for the employment of particular groups. OFCCP will look at the 
totality of the contractor's affirmative action efforts to determine 
whether it is in compliance with its affirmative action obligations 
under this section. As discussed below, if the contractor has complied 
with the requirements of this part and no impediments to equal 
employment opportunity exist, then the fact that the contractor does 
not meet the goal will not result in a violation.
    With regard to commenter concerns regarding the use of the 
discouraged worker effect, more than twenty years after the passage of 
the ADA and nearly forty years after the passage of the Rehabilitation 
Act, there continues to be a substantial discrepancy between the 
workforce participation and unemployment rates of working age \29\ 
individuals with and without disabilities. According to the U.S. 
Department of Labor's Bureau of Labor Statistics (BLS), just 20.9 
percent of working age individuals with certain functional disabilities 
were in the labor force in 2011, compared with 69.7 percent of working 
age individuals without such disabilities. This same data also 
indicates that the unemployment rate for those with these disabilities 
was 15.0 percent, compared with an 8.7 percent unemployment rate for 
those without a disability. This acute disparity in the workforce 
participation and unemployment rates of working age individuals with 
disabilities persists, despite the many technological advances that now 
make it possible for a broad array of jobs to be successfully performed 
by individuals with severe disabilities. OFCCP therefore believes that 
at least a portion of this gap is due to discrimination and sought to 
take this gap into account in the establishment of the goal by 
including in its calculation a discouraged worker figure. OFCCP 
acknowledges that the 1.7 percent figure we included in the goal is 
different from the 0.1 percent BLS figure cited by a commenter. 
However, the BLS figure represents the number of discouraged workers 
with disabilities among the universe of discouraged workers, whereas 
the 1.7% figure we used approximates the number of discouraged disabled 
workers among the universe of individuals with disabilities.
---------------------------------------------------------------------------

    \29\ The working age population consists of people between the 
ages of 16 and 64, excluding those in the military and people who 
are in institutions.
---------------------------------------------------------------------------

    In addition to the concerns about the methodology used to derive 
the goal, several commenters asserted that OFCCP lacked authority to 
mandate a 7 percent utilization goal. These commenters noted that 
section 503 requires affirmative action for qualified individuals with 
disabilities; they assert that there is no duty to take affirmative 
action with regard to a general category of ``individuals with 
disabilities.'' Because section 503 requires affirmative action only 
for qualified individuals with disabilities, these commenters argue 
that a 7 percent utilization goal is impermissible unless the 
availability data revealed that underutilization of qualified 
individuals with disabilities exists for each job group in every 
geographic area.
    It appears from these comments that the NPRM did not make explicit 
enough that the utilization goal requirement is for the utilization of 
qualified individuals with disabilities. OFCCP did not intend, nor do 
we believe that the proposed rule would have required, that a 
contractor employ and advance in employment individuals with 
disabilities who are not qualified for the position in question. 
Nevertheless, to address this confusion, we have revised paragraph (a) 
of the utilization goal requirement in the final rule by inserting the 
word ``qualified'' before the term ``individuals with disabilities'' to 
clarify that the 7 percent utilization goal is for the employment of 
qualified individuals with disabilities.
    OFCCP also received a number of comments objecting to the proposed 
utilization goal set forth in paragraph (a) on the grounds that job 
group specific utilization goals are fundamentally unworkable as 
proposed. Commenters argued that anonymous self-identification will 
impede a contractor's ability to analyze utilization of individuals 
with disabilities and furthermore that such goals will ultimately belie 
any assurance of confidentiality as the identities of disabled persons 
would become evident as soon as the AAP data were produced to show the 
representation of individuals with disabilities in each job group. 
Moreover, commenters expressed concern that a utilization goal will be 
difficult to attain because many applicants and employees will be 
unwilling to disclose their disability, particularly hidden 
disabilities. Still others expressed concern that pre-offer self-
identification will render companies vulnerable to lawsuits for 
wrongfully failing to hire an individual with a disability.
    OFCCP disagrees that job group specific utilization goals are 
unworkable. First, with regard to the concerns that anonymous self-
identification will hinder the contractor's ability to perform a 
utilization analysis by job group, OFCCP concurs that identifying 
information is in fact needed in order for contractors to assess their 
utilization of individuals by job group. We have, therefore, revised 
Sec.  60-741.42, the provision related to self-identification, by 
removing the anonymity requirement. Second, as explained above in the 
preamble for Sec.  60-741.42, Invitation to Self-Identify, OFCCP 
concedes the possibility that self-reported data regarding disability 
will not be entirely accurate. While not perfect, the data that will 
result from the invitation to self-identify will provide the contractor 
and OFCCP with important data that do not now exist pertaining to the 
participation of individuals with disabilities in the contractor's 
applicant pools and labor force. This will allow the contractor and 
OFCCP to better identify and monitor the contractor's hiring and 
selection practices with respect to individuals with disabilities. 
Finally, regarding the concern that pre-offer self-identification will 
render contractors vulnerable to lawsuits for wrongfully failing to 
hire an individual with a disability, OFCCP is not persuaded. While 
knowledge of the existence of a disability is a component of an 
intentional discrimination claim, the contractor must not only have

[[Page 58707]]

known of the person's disability, but must also have treated the person 
less favorably because of his/her disability. We note that contractors 
have long had knowledge of a person's race and gender. Having knowledge 
of a person's disability should be no different. In addition, we note 
that contractors have long had knowledge of the disabilities of 
applicants who have visible disabilities, such as blindness, deafness, 
or paraplegia, but that OFCCP has had no means of knowing of their 
presence in the applicant pool or their experience in the application 
process. Requiring contractors to invite pre-offer self-identification 
will help fill this void.
    Finally, several commenters requested that OFCCP create an 
exemption from the goal requirement for industries with physically 
demanding jobs, namely the construction industry, and for safety-
sensitive positions, including flight crewmembers, flight attendants, 
flight instructors, aircraft dispatchers, aircraft maintenance and 
preventive maintenance workers, ground security coordinators, aviation 
security screeners, and air traffic controllers. Another commenter 
requested that AbilityOne contractors be exempt from the goal 
requirement because they are already operating under high standards. 
This commenter stated that the AbilityOne program requires that at 
least 75 percent of the direct labor in a participating nonprofit 
agency be performed by people who are blind or have other significant 
disabilities.
    OFCCP declines to adopt exemptions from the goal requirement in the 
final rule. Requests to exempt contractors from meeting the utilization 
goal for safety sensitive positions or for physically demanding jobs 
are fundamentally based on the flawed notion that individuals with 
disabilities as a group are incapable of working in these jobs. OFCCP 
does not support this belief and will not construct an avenue to permit 
contractors to avoid hiring individuals with disabilities for certain 
jobs. OFCCP acknowledges that some individuals with certain 
disabilities may not be able to perform some jobs, but does not believe 
exemptions are necessary for two reasons. First, neither section 503 
nor this part require a contractor to hire an individual who cannot 
perform the essential functions of the job, or who poses a direct 
threat to the health or safety of the individual or others. Second, the 
goal is not a quota and failure to meet the goal will not, in and of 
itself, result in any violation or enforcement action. With regard to 
the request to exempt AbilityOne contractors from the goal requirement, 
we likewise do not believe that a regulatory exemption is warranted. 
The final rule applies, not just to ``direct labor,'' but to the 
entirety of a covered contractor's workforce, and to the entirety of 
covered subcontractors' workforces, as well. In short, the goal 
requirement is a management tool from which all contractors can 
benefit.
     Comments on sub-goal option
    As noted above, in the NPRM OFCCP indicated that it was considering 
the option of including within the 7 percent goal for individuals with 
disabilities a sub-goal of 2 percent for individuals with certain 
particularly severe disabilities and invited public comment on the sub-
goal concept, as well as on which disabilities should be included 
within the sub-goal. OFCCP specifically sought comments addressing (1) 
the data or research available that informs the design of an 
appropriate sub-goal, including which severe disabilities should be 
covered by the sub-goal and the appropriate sub goal target; (2) how a 
sub-goal furthers the overall objective of increasing employment 
opportunities for individuals with severe disabilities; and (3) the 
data or research available on the need for a sub-goal for specific 
disabilities.
    OFCCP received 126 comments on this sub-goal option. Many 
commenters from the disability community favored such an approach but 
urged OFCCP to increase the sub-goal from 2 percent to 5 percent. These 
commenters stated that any serious effort to measure the effectiveness 
of one's affirmative action efforts must look not only at the overall 
group of individuals with disabilities but also at those within that 
group who have had the greatest barriers to employment and are most in 
need of affirmative action. Having only an overall goal for the 
extremely broad group of people with disabilities would permit 
contractors to employ individuals with less stigmatized disabilities, 
and would do little to ensure that those individuals with the greatest 
history of exclusion from the workforce would benefit from affirmative 
action. These commenters urged OFCCP to increase the sub-goal to 5 
percent, because they believe that the group of individuals who would 
likely be captured by a sub-goal would be greater than 2 percent of the 
labor force.
    In response to OFCCP's request as to which disabilities to include 
in the sub-goal, a substantial number of commenters from the disability 
community emphasized the need to fashion a sub-goal that captures 
individuals ``with the lowest employment rates and greatest barriers to 
employment.'' These commenters urged OFCCP to not rely on the 
``targeted disabilities'' list the Federal government uses to monitor 
its internal hiring as the source of its sub-goal, but should instead 
develop its own, more expansive list of ``targeted disabilities.'' 
Commenters proffered several approaches, discussed below, that OFCCP 
could use to create a section 503 sub-goal.
    One approach would entail OFCCP working with experts from various 
universities to identify those categories of disabilities that have 
caused people to face the greatest employment barriers. OFCCP would 
then create a ``targeted disabilities'' list comprised of the 
identified disabilities. While several if not all of the conditions 
currently on the Federal government's list would be on this list, 
commenters anticipated that this new ``targeted disabilities'' list 
would also include conditions not on the current list, such as autism 
spectrum disorders and Down syndrome, among others.
    A second approach recommended by these commenters was to base a 
sub-goal on the statutory definition of ``significant disability,'' at 
29 U.S.C. 705(21)(A), that is used for determining selection for 
vocational rehabilitation services. This definition not only specifies 
a list of covered conditions, but also requires an assessment of 
whether each individual's condition is ``a severe physical or mental 
impairment which seriously limits one or more functional capacities 
(such as mobility, communication, self-care, self-direction, 
interpersonal skills, work tolerance, work skills) in terms of an 
employment outcome.'' There are 26 conditions on the covered conditions 
list, some of which are very specific, such as amputation, paraplegia, 
quadriplegia, blindness, and deafness. Other listed conditions, though, 
encompass broad categories of impairments that can vary widely in their 
nature and severity, such as arthritis, head injury, burn injury, heart 
disease, musculo-skeletal disorders, and neurological disorders.
    A third approach commenters identified was for OFCCP to analyze a 
variety of data sources, including ACS, the Survey on Income and 
Program Participation (SIPP), the Current Population Survey (CPS), CDC 
data, and other data, to identify which individuals with disabilities 
experience the greatest employment barriers. OFCCP would then design a 
sub-goal focused on the disabilities associated with these individuals.
    Many of the commenters opposed to the utilization goal requirement 
also opposed a sub-goal option. The reasons for their opposition were 
similar to

[[Page 58708]]

those already expressed in opposition to the 7 percent utilization 
goal. Many asserted that the 2 percent figure was arbitrary and that it 
would be incongruous to hold contractors to a standard that the Federal 
government itself has proven unable to meet. The comments received also 
stated that there would be many industries for which those with severe 
disabilities would be unable to work. One commenter highlighted that 
the sub-goal for individuals with severe disabilities is inconsistent 
with the Federal Aviation Administration's regulatory scheme regarding 
medical certification of persons employed in certain safety sensitive 
positions, and that if a safety exception is not recognized, then OFCCP 
should establish a lesser goal, because the availability of applicants 
with severe disabilities qualified for safety sensitive positions would 
necessarily be fewer. One advocacy organization for individuals with 
disabilities stated that a sub-goal was not necessary, because it would 
require a more detailed inquiry regarding the specific nature of an 
individual's disability by contractors, which would cause discomfort 
among people with disabilities. A sub-goal also disregards the fact 
that often the severity of the disability, not just the type of 
disability, significantly impacts an individual's employment 
opportunities.
    OFCCP declines to adopt a sub-goal option at this time. Although 
the comments presented a variety of general approaches to designing a 
sub-goal, none provided a clear methodology or data source for the 
identification of a sub-goal target. Nor did they provide for the 
identification of a clear, practicable list of specific conditions that 
a sub-goal should encompass. We also note that the approach regarding 
the use of the vocational rehabilitation definition of ``significant 
disability'' as the basis of a sub-goal would require the application 
of a definition of ``disability'' that is different from that in 
section 503. Moreover, it would, in many instances require contractors 
to ask for detailed disability-related information, beyond the mere 
existence of a specific condition, so that the contractor could 
determine whether an individual has a ``severe'' physical or mental 
impairment that is encompassed by the sub-goal. This does not mean that 
contractors may not, on their own, establish appropriate mechanisms and 
goals to affirmatively seek to encourage the employment of individuals 
with significant or severe disabilities. However, these regulations do 
not include such requirements.
     Paragraph (b): Purpose
    Proposed Sec.  60-741.46(b) stated that the purpose of the 
utilization goal is to establish a benchmark against which the 
contractor must measure the representation of individuals within each 
job group in its workforce. Proposed Sec.  60-741.46(b) also stated 
that the utilization goal serves as an equal employment opportunity 
objective that should be attainable by complying with all aspects of 
the affirmative action requirements of this part.
    Many commenters opposed to the proposed utilization goal stated 
that the goal was equivalent to an inflexible ``quota'' because a 
contractor who fails to achieve the 7 percent utilization goal would be 
required to take specific measures to address the disparity. According 
to these commenters, there is nothing aspirational about this 
requirement and, unlike the Executive Order 11246 regulations 
implementing the affirmative action requirements for supply and service 
contractors, the NPRM implementing section 503 failed to state 
specifically that the utilization goal is not a rigid, inflexible quota 
nor does it state that quotas are expressly forbidden. Other commenters 
stated that any required objective or goal that imposes a penalty if 
not met is a quota. Still another intimated that the utilization goal 
as proposed would fail to survive a constitutional challenge because 
such a requirement would be subject to the highest level of judicial 
scrutiny.
    The proposed utilization goal is not an inflexible quota and should 
not be perceived as one. The goal is intended to serve as a management 
tool to help contractors measure their progress toward achieving equal 
employment opportunity for individuals with disabilities and to assess 
whether barriers to equal employment opportunity remain. OFCCP 
recognizes that a failure to meet the 7 percent utilization goal does 
not necessarily mean that the contractor is discriminating against 
individuals with disabilities. It is for this reason that the NPRM 
stated in proposed Sec.  60-741.46(f) that a contractor's determination 
that it has not attained the utilization goal in one or more job groups 
does not constitute either a finding or admission of discrimination in 
violation of this part. Nevertheless, in light of the comments, OFCCP 
has revised the regulatory language to clarify that a failure to meet 
the utilization goal triggers an assessment of whether there is a 
barrier to equal employment opportunity, and if so, what the barrier 
is. Specifically, new paragraph (e) in the final rule states that when 
the goal has not been met in one or more job groups the contractor must 
``determine whether and where impediments to equal employment 
opportunity exist.'' This determination is to be based on reviews of 
the contractor's personnel processes and affirmative action efforts 
that the contractor is already required to perform. Only if a problem 
or barrier to equal employment opportunity is identified, must the 
contractor then develop and execute an action-oriented program to 
address the problem.
    With regard to the comment that the proposed utilization goal would 
fail to survive a constitutional challenge because such a requirement 
would be subject to the highest level of judicial scrutiny, we again 
note that the utilization goal established herein is not a quota and 
does not require disability-based decision making. Rather, the goal is 
a tool to measure the effectiveness of the Federal contractor's 
employment practices as they relate to equal employment opportunity for 
qualified individuals with disabilities. A failure to meet the goal 
does not result in any violation; it triggers a critical review by the 
Federal contractor of its employment practices. Furthermore, even if a 
court were to determine that the framework set forth herein required 
disability-based decision making, strict scrutiny review is not applied 
to decisions based on disability. Instead, classifications based on 
disability are subject to ``rational basis review,'' and are legally 
permissible so long as the governmental action--in this case, the 
setting of a 7 percent utilization goal--is rationally related to a 
legitimate governmental interest. See, e.g., Contractors Ass'n of E. 
Pa., Inc. v. City of Phila., 6 F.3d 990 (3rd Cir. 1993) (applying 
rational basis review of a city ordinance that established goals for 
the participation of disability-owned businesses in city contracts); 
City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 442-45 
(1985). OFCCP believes that establishing a utilization goal of 7 
percent for individuals with disabilities is clearly related to the 
legitimate governmental interest of increasing outreach to and 
employment opportunities for individuals with disabilities--a segment 
of the population that suffers from staggering levels of unemployment 
and a significant history of discrimination.
     Paragraph (c): Periodic review of the goal
    Proposed paragraph (c) stated that the Director of OFCCP will 
periodically review and update the 7 percent utilization goal 
requirement as appropriate. One commenter expressed concern that in 
light of the Federal government's current fiscal situation,

[[Page 58709]]

future budget constraints would likely impede OFCCP from ever revising 
the proposed goal. OFCCP, like many other Federal agencies, has 
experienced fluctuations in its funding throughout its more than 40 
years of continuous operation. We have no reason to anticipate, 
however, that such fluctuations would impede our ability to 
periodically review and update the goal, as appropriate, as provided in 
the final rule.
     Paragraph (d): Utilization analysis
    Proposed paragraph (d) set forth the purpose of a utilization 
analysis and required that covered contractors annually evaluate the 
representation of individuals with disabilities in each job group in 
the contractor's workforce that the contractor uses for utilization 
analyses under Executive Order 11246 and compare the rate of 
representation for each group against the 7 percent utilization goal. 
For purposes of clarity and in response to numerous commenters' concern 
that the goal is really a quota, OFCCP has revised proposed paragraph 
(d)(1), which set forth the purpose of a utilization analysis, by 
deleting the sentence that states: ``If individuals with disabilities 
are employed in a job group at a rate less than the utilization goal, 
the contractor must take specific measures to address this disparity.'' 
Paragraph (d)(1) is intended to state the purpose of the utilization 
analysis. This deleted sentence was unrelated to the purpose. Moreover, 
as explained earlier in the preamble, failure to meet the goal does not 
automatically trigger the execution of action-oriented programs. For 
this reason, we found the sentence misleading.
    OFCCP received a number of alternatives to the proposed utilization 
goal, somewhat related to the utilization analysis. Several commenters 
requested that if the agency were to move forward with the goal 
requirement, the goal should apply to the entire corporation across all 
establishments rather than to each job group. One commenter suggested 
that two goals be implemented--one for supply and service contractors 
and another for construction contractors. Another recommended that the 
goal apply by AAP location or organizational unit. Still another 
suggested that OFCCP remove a set figure and allow each contractor to 
establish a reasonable utilization goal for its establishments taking 
into account specific factors involved at each particular workplace. 
Finally, at least one commenter requested that a range of 4 percent to 
10 percent be adopted to allow contractors the flexibility to account 
for variations in geography, occupational requirements, and nature of 
disabilities.
    OFCCP declines to adopt these proposed alternatives. As explained 
in the NPRM, we did consider permitting contractors to compare the 
individuals with disabilities in its workforce as a whole to the 
proposed 7 percent goal. We decided against adopting this approach on a 
broad scale because of its potential for masking discrimination and 
segregation. For example, a contractor that has segregated all of its 
employees with disabilities into one or two low-paying jobs might be 
able to conceal this discrimination and satisfy this 7 percent goal if 
only a single whole-workforce comparison were required by this section.
    However, we are mindful that certain small contractors may find it 
more difficult than other contractors to attain the goal if compelled 
to apply it to each of their job groups, simply because of their small 
size. In recognition of this fact, the final rule is revised, with the 
addition of paragraph (d)(2)(i), to create an exception that permits 
contractors with a total workforce of 100 or fewer employees to apply 
the 7 percent goal to their entire workforce as a whole, rather than to 
each job group. This will ensure that the burden on these small 
companies is minimized, while still providing them with a yardstick by 
which to measure the effectiveness of their efforts to recruit and hire 
individuals with disabilities. These contractors are reminded, though, 
that while they are permitted to measure their utilization of 
individuals with disabilities in their workforce as a whole, they may 
not attain the goal by engaging in the unlawful segregation of 
employees with disabilities.\30\
---------------------------------------------------------------------------

    \30\ The exception created in paragraph (d)(2)(i) of this 
section is in addition to the existing exception under Executive 
Order 11246 that permits contractors with a total workforce of fewer 
than 150 employees to use the nine broad EEO-1 occupational 
categories as their job groups. See 41 CFR 60-2.12(e).
---------------------------------------------------------------------------

    OFCCP declines to adopt the other approaches proposed by 
contractors because they would all result in greater burden on 
contractors than the approach we have chosen. None of the alternative 
proposals would allow contractors to use their existing EO 11246 job 
groups, and all would require contractors to identify organizational 
units for the purpose of establishing or effectuating a goal, and to 
explain the factors they applied in making their determinations. A 
number of commenters expressed concern that contractors may be able to 
use their relationship with sheltered workshops to circumvent the goal 
requirement. Some of these commenters fear that contractors will be 
able to count toward their goal the employees of a sheltered workshop 
subcontractor. Some fear that contractors will be able to meet their 
goal by establishing their own sheltered workshop, or by counting 
toward the goal those individuals being trained for future employment 
at a sheltered workshop. Still others asked that OFCCP ban sheltered 
workshops and prohibit contractors from using them at all.
    Sheltered workshops are segregated facilities that exclusively or 
primarily employ persons with disabilities. Many sheltered workshops 
are authorized to pay special minimum wages under an exemption in 
section 14(c) of the Fair Labor Standards Act (FLSA), 29 U.S.C. 214(c), 
after receiving a certificate from the U.S. Department of Labor's Wage 
and Hour Division. The certificate allows the payment of special 
minimum wages to certain workers with disabilities for work being 
performed. The Department's Wage and Hour Division has jurisdiction 
over the administration of the FLSA, including the provisions of 
section 14(c). OFCCP thus has no authority to ban sheltered workshops 
or prohibit contractors from using them. However, Sec.  60-741.45 of 
the existing section 503 regulations (renumbered section 60-741.47 in 
the final rule) addresses the relationship between sheltered workshops 
and contractors' affirmative action obligations. Specifically, this 
section provides that ``[c]ontracts with sheltered workshops do not 
constitute affirmative action in lieu of employment and advancement of 
qualified disabled individuals'' in the contractor's workforce. Merely 
providing a subcontract to a sheltered workshop is, therefore, not a 
form of affirmative action. Section 60-741.45 further provides that a 
contract with a sheltered workshop may only be considered to be 
affirmative action ``if the sheltered workshop trains employees for the 
contractor and the contractor is obligated to hire trainees at full 
compensation'' when they become qualified for the job(s) for which they 
are being trained. Only after these trainees become employees of the 
contractor and are receiving full compensation comparable to what other 
similarly situated employees who did not participate in a sheltered 
workshop are earning, may they be counted toward the contractor's goal. 
Contractors may not discriminate in compensation based on disability, 
which would include discriminating against an

[[Page 58710]]

individual based on his or her past participation in a sheltered 
workshop.
    Commenters also need not be concerned that contractors could 
circumvent the goal by means of a subcontractor relationship with a 
sheltered workshop or by establishing their own sheltered workshop. 
First, we note that contractors may only include in their AAPs and 
count toward their goal their own applicants and employees. Applicants 
and employees of subcontractors, whether or not that subcontractor is a 
sheltered workshop, may not be included in the contractor's AAP or 
counted toward the contractor's goal. Second, to comply with the goal 
requirement, contractors must apply the goal to each of its job groups, 
not to its workforce as a whole. Consequently, even if a contractor 
established its own sheltered workshop inside the company, that would 
only satisfy the contractor's goal with respect to the specific job(s) 
performed by the sheltered workshop in the specific contractor facility 
where the sheltered workshop is located.
     Paragraph (e): Action-oriented programs
    Proposed paragraph (e) directed that the contractor develop and 
execute action-oriented programs designed to correct any identified 
problem areas when underutilization is identified. The proposed rule 
stated that examples of such programs may include alternative or 
additional efforts from among those outreach efforts listed in 
Sec. Sec.  60-741.44(f)(1) and 60-741.44(f)(2) and/or any other 
appropriate actions.
    Many commenters opposed to the proposed utilization goal objected 
in part because proposed paragraph (e) required the development and 
execution of action-oriented programs when the percentage of 
individuals with disabilities in one or more job groups fell below the 
7 percent utilization goal, regardless of the reason the goal was not 
met. These commenters argued that proposed paragraph (e) imposed a 
penalty and therefore, the goal acted more like a quota.
    As explained earlier, the goal is not a quota. Nevertheless, it 
appears that many misunderstood the framework for the goal requirement. 
To allay these concerns, OFCCP has revised paragraph (e), renumbered it 
as paragraph (f), and inserted a new paragraph (e) into the final rule 
that clarifies that a failure to meet the utilization goal requires 
that the contractor make an assessment as to whether any impediments to 
equal employment opportunity exist. This assessment is to be based on 
reviews the contractor is already required to undertake as part of its 
annual review of its affirmative action program. These include reviews 
of its personnel processes (Sec.  60-741.44(b)) and its external 
outreach and recruitment efforts (Sec.  60-741.44(f)), and the results 
of its affirmative action program audit (Sec.  60-741.44(h)) and any 
other areas that might affect the success of the affirmative action 
program. Paragraph (e) is, thus, captioned ``Identification of problem 
areas.'' Proposed paragraph (e), entitled ``Action-oriented programs'' 
(paragraph (f) in the final rule) has been revised to direct the 
contractor to undertake action-oriented programs only when problem 
areas have been identified. Paragraph (f) also clarifies that action-
oriented programs need not be limited to engaging in additional 
outreach and recruitment efforts. Rather, such programs may also 
include the modification of personnel processes to ensure equal 
employment opportunity for individuals with disabilities and/or other 
actions designed to correct the identified problem areas, such as 
improving retention of employees with disabilities.
     Paragraph (f): Failure to meet the goal does not 
constitute discrimination
    Proposed paragraph (f) clarified that a contractor's determination 
that it has not attained the utilization goal in one or more job groups 
does not in and of itself constitute either a finding or admission of 
discrimination in violation of this part. OFCCP received no comments 
regarding this provision. We have adopted this provision, as proposed, 
in the final rule, renumbered as paragraph (g). Failure to meet the 
goal would not be a violation of this part and would not lead to a 
fine, penalty or sanction.
    As previously noted, if a contractor does not meet the goal, the 
contractor must take steps to determine whether and where impediments 
to equal opportunity exist. When making this determination the 
contractor must assess its personnel processes, the effectiveness of 
its outreach and recruitment efforts, the results of its affirmative 
action program audits, and any other areas that might affect the 
success of the affirmative action program. If the contractor reasonably 
determines there are no impediments, no further action is necessary. 
If, as a result of its review, the contractor identifies problem areas, 
then it must develop and execute action-oriented programs designed to 
correct the problems, as required by paragraph (f). The contractor may 
choose the programs to institute. The programs do not need to result in 
achieving the goal, so long as they are designed to remove obstacles to 
doing so.
    So, for example, if a contractor does not meet the goal, but has 
developed and implemented an affirmative action program, including 
conducting outreach and positive recruitment of individuals with 
disabilities and has evaluated whether barriers to equal opportunity 
exist and, if they do, implemented action-oriented programs to correct 
and remove them, the contractor would not be found to be in violation 
of this part simply because it did not meet the goal.
    On the other hand, if, for example, a contractor meets the goal, 
but fails to develop an AAP, the contractor could be cited for failure 
to develop an AAP. Goal achievement does not guarantee compliance with 
section 503 or this part, just as failure to meet the goal does not 
result in a violation of section 503 or this part.
     Paragraph (g): Utilization goal is not a quota or a 
ceiling
    Proposed paragraph (g) stated that the goal proposed in this 
section must not be used as a quota or ceiling that limits or restricts 
the employment of individuals with disabilities. This paragraph is 
adopted, as proposed, in the final rule, renumbered as paragraph (h).

Section 60-741.47 Voluntary Affirmative Action Programs for Employees 
With Disabilities

    The proposed rule added a new section encouraging contractors to 
voluntarily develop and implement programs that provide priority 
consideration to individuals with disabilities in recruitment or 
hiring. The proposal provided examples of priority consideration 
programs, and required contractors who elect to implement such a 
program to include in their AAP a description of the program and an 
annual report describing activities taken pursuant to the program and 
their outcomes. In addition, the proposal cautioned that a priority 
consideration program cannot be used to segregate or restrict the 
employment opportunities of individuals with disabilities.
    We received 28 comments concerning this section, primarily from 
employer groups, but also from disability groups, law firms, and 
others. The employer groups overwhelmingly opposed this section, 
asserting that priority consideration amounted to a quota or 
preferential treatment for persons with disabilities and contradicted 
equal employment opportunity principles. Contractors, they stated, 
should only hire the best qualified person for a job. Commenters 
opposed to this new provision asserted, further, that it would foster 
discrimination against other protected groups and generate increased

[[Page 58711]]

employment discrimination litigation. A few commenters questioned how 
this section would be implemented; for example, how a contractor would 
establish a point system. Some commenters requested clarification on 
the definition of priority consideration.
    Those commenters in favor of this section, mostly disability 
groups, stated that this section would assist in the employment of 
persons with disabilities and would not result in unlawful 
discrimination of any kind. They asserted, further, that this section 
does not violate section 503 or the ADA.
    After consideration of the comments, OFCCP adopts the proposed 
provision into the final rule with modifications to address concerns 
raised by contractors. First several contractors were concerned that 
the provision would require contractors to provide priority 
consideration to individuals with disabilities, including addition 
``points'' in the hiring process, that would amount to a quota. This is 
not OFCCP's intention. By way of background, several contractors in the 
past have asked OFCCP informally whether it would be permissible to 
establish a job training or employment program for individuals with 
specific disabilities, such as traumatic brain injury or developmental 
disabilities. It has been OFCCP's longstanding policy that such 
programs are permissible though not required. To address this concern 
we have clarified the section to refer to voluntary affirmative action 
programs for employees with disabilities, rather than as providing 
priority consideration in employment. In addition, we have removed the 
example of a program assigning a weighted value or additional 
``points'' to job applicants who self-identify as having a disability. 
We reiterate that proposed Sec.  60-741.47 (Sec.  60-741.46 in the 
final rule) creates no new obligations or responsibilities with which 
contractors must comply. Rather, it simply highlights the availability 
to contractors of an important affirmative action tool, and, provides a 
non-exhaustive list of examples of voluntary affirmative action 
programs for employees with disabilities that contractors are permitted 
to voluntarily develop and implement. A number of private companies 
have successfully used various types of voluntary affirmative action 
programs to increase training and employment opportunities for 
individuals with disabilities, and OFCCP desires to be clear that other 
companies also may consider their use. However, contractors who do not 
adopt such programs are not penalized in any way by OFCCP for that 
decision. OFCCP believes these modifications will allay concerns that 
this provision amounts to a quota or requires preferential treatment.
    We disagree with the suggestion that this provision would foster 
discrimination against other groups and generate increased litigation. 
As we noted in the NPRM, the ADA Amendments Act explicitly states that 
neither the ADA nor the Rehabilitation Act provides ``the basis for a 
claim . . . that [an] individual was subject to discrimination because 
of the individual's lack of disability.'' ADAAA at sec. 6(a)(1)(g). We 
note, too, that having a disability is a characteristic that cuts 
across race, gender and ethnicity lines, and that affirmative efforts 
to increase employment opportunities for individuals with disabilities 
will, therefore, not impede affirmative efforts to include women and 
minorities. We have added a new paragraph (d) to make clear that this 
section should not be used to foster discrimination against other 
groups by stating that this section shall not relieve a contractor from 
liability for discrimination under any of the laws enforced by OFCCP.

Section 60-741.48 Sheltered workshops

    We proposed to make a single technical change to this existing 
regulation. Specifically, the NPRM proposed to replace the phrase 
``qualified disabled individuals'' in the first sentence with 
``qualified individuals with disabilities'' to be consistent with the 
terminology used elsewhere in this part. We received no comments on 
this change and it is adopted into the final rule as proposed, but the 
section is renumbered as Sec.  60-741.47. Several commenters expressed 
concern about the interaction of this existing provision with the new 
utilization goal requirement in Sec.  60-741.45 of the final rule 
(originally proposed as Sec.  60-741.46). Those comments are addressed 
in the preamble to Sec.  60-741.46, above.
Subpart D--General Enforcement and Complaint Procedures

Section 60-741.60 Compliance Evaluations

    The proposed rule set forth several changes to the process the 
contractor and OFCCP will follow in conducting compliance evaluations. 
We received 28 comments concerning this section, including comments 
focusing on contractor burden, which are addressed in the Regulatory 
Procedures section of this preamble. These proposals, the comments to 
these proposals, and the revisions made to the final rule are discussed 
in turn below.
     Paragraph (a)
    The NPRM modified the wording of paragraph (a) to more clearly 
state the section 503 obligation of the contractor to employ, ``advance 
in employment and otherwise treat qualified individuals without 
discrimination on the basis of disability in all employment 
practices.'' We received no comments to this paragraph and adopt the 
language into the final rule as proposed.
     Paragraph (a)(1): Compliance review
    The NPRM proposed adding a sentence to paragraph (a)(1)(i) 
regarding the temporal scope of desk audits performed by OFCCP, stating 
that OFCCP ``may extend the temporal scope of the desk audit beyond 
that set forth in the scheduling letter if OFCCP deems it necessary to 
carry out its investigation of potential violations of this part.'' 
Most of the comments concerned this paragraph. Many of these 
commenters, primarily contractors, employer groups, and law firms, 
objected to this proposed change and asked that it be withdrawn. These 
commenters asserted that the language of the proposed rule could result 
in ``perpetual'' audits of contractors, was contrary to a recent 
Administrative Law Judge (ALJ) decision in the case OFCCP v. Frito-Lay, 
Case No. 2010-OFC-00002, Recommended Decision and Order (ALJ July 23, 
2010), and would lead to an increased burden for contractors.
    As stated in the NPRM, the purpose of this proposal was to clarify 
that OFCCP may need to examine information after the date of the 
scheduling letter during the desk audit in order to determine, for 
instance, if violations are continuing or have been remedied. While the 
existing section 503 provision addresses the authority of the agency to 
conduct desk audits, it does not expressly state the temporal scope of 
these audits. It has been OFCCP's longstanding position that the agency 
has authority to obtain information pertinent to the review for periods 
after the date of the letter scheduling the review, including during 
the desk audit. However, in 2010 an ALJ disagreed in a recommended 
decision in the Frito-Lay case, in part because the parallel Executive 
Order 11246 desk audit regulation at issue in the case does not address 
the temporal scope of a desk audit. OFCCP v. Frito-Lay, Inc., Case No. 
2010-OFC-00002, ALJ Recommended Decision and Order (July 23, 2010). On 
May 8, 2012, the Department's Administrative Review Board (ARB) 
reversed this recommended decision, concluding that a desk audit 
authorized

[[Page 58712]]

by the regulation permitted OFCCP to request additional information 
relating to periods after the scheduling letter. The ARB concluded that 
the regulation does not have an inflexible temporal limitation. OFCCP 
v. Frito-Lay, Inc., Case No. 2010-OFC-00002, ARB Final Administrative 
Order (May 8, 2012). OFCCP views the Frito-Lay decision as equally 
applicable to desk audits concluded under its section 503 authority as 
to those conducted under its Executive Order 11246 authority. 
Nevertheless, the final rule makes the clarification explicit in the 
text of the regulation. OFCCP notes that paragraph (a)(1) also 
authorizes OFCCP to request during the desk audit additional 
information pertinent to the review after reviewing the initial 
submission. See United Space Alliance v. Solis, 824 F.Supp.2d 68, 81-82 
(D.D.C. 2011) (holding that agency's interpretation of its desk audit 
regulation to authorize additional information requests when necessary 
was entitled to deference).
    Finally, commenters' concerns that this revision will lead to 
``never-ending'' audits are unfounded. As stated above, the clarifying 
language set forth in the final rule does not change OFCCP's 
longstanding policy, or contractors' obligations, regarding the 
temporal scope of the desk audit. Further, because the clarification 
does not represent a change, concerns about increases in burden are 
similarly unfounded.
     Paragraphs (a)(3) and (a)(4): Compliance check and focused 
reviews
    The NPRM revised paragraph (a)(3) to permit OFCCP to review 
documents pursuant to a compliance check either on-site or off-site, at 
OFCCP's option. Similarly, paragraph (a)(4) was revised to allow OFCCP 
to conduct focused reviews, at its discretion, either on-site or off-
site. Many employer groups objected to this change, citing 
confidentiality concerns over the transfer, management, and maintenance 
of employment and medical records. Some commenters requested safeguards 
to protect these records, asked for additional guidance concerning 
confidentiality of medical records, or asked that these records not be 
subject to the Freedom of Information Act.
    We received similar comments concerning the confidentiality of 
records with regard to Sec.  60-741.81, Access to records, and we 
address those comments in more detail in the preamble to that section. 
Briefly, we note that the section 503 regulations have long required 
contractors to provide relevant medical and related records to OFCCP 
officials during a compliance evaluation or complaint investigation 
``upon request.'' Sec.  60-741.23(d)(1)(iii). This regulation contains 
no requirement that OFCCP must request such records ``on-site.'' We 
also note that there is significant precedent for OFCCP obtaining 
contractor records off-site, as the scheduling letter has long required 
that contractors scheduled for a compliance evaluation send their AAPs 
and supporting documentation to OFCCP. The final rule adopts the 
changes to these paragraphs as proposed.
     Paragraph (c): Pre-award compliance evaluations
    Finally, the proposed rule added a new paragraph (c) to this 
section detailing a new procedure for pre-award compliance evaluations 
under section 503, much like the procedure that currently exists in the 
Executive Order regulations. See 41 CFR 60-1.20(d). A few employer 
groups objected to the change, asserting that the new paragraph was too 
prescriptive and questioned how the procedure would work in practice.
    These concerns are misplaced. The pre-award compliance evaluation 
is a long-standing requirement under the Executive Order. This addition 
simply brings the section 503 regulations in line with the Executive 
Order regulations and assures that the pre-award compliance evaluation 
process will also encompass compliance with section 503. OFCCP adopts 
this new provision into the final rule as proposed.

Section 60-741.62 Conciliation Agreements

    The proposed rule renumbered the existing rule as paragraph (a), 
and added a new paragraph (b) permitting the establishment of 
benchmarks in conciliation agreements as one possible form of remedial 
action. As we stated in the NPRM, benchmarks may be established for 
outreach, recruitment, hiring, or other employment activities of the 
contractor, as appropriate, and will provide a quantifiable method for 
measuring the contractor's progress toward correcting identified 
violations or deficiencies.
    We received five comments from employer groups concerning new 
paragraph (b). None favored the new provision. Some of these commenters 
asserted that remedial benchmarks for hiring are unnecessary, would be 
similar to a quota, and recommended that the paragraph be eliminated 
from the final rule. Others requested that we further define 
``benchmark,'' or clarify that a benchmark must be linked to a finding 
of discrimination.
    The use of remedial benchmarks is not a new OFCCP policy or 
practice. Remedial benchmarks have long been included in conciliation 
agreements, when appropriate, to resolve violations under the Executive 
Order. New paragraph (b) simply clarifies that remedial benchmarks may 
also be used, when appropriate, to remedy violations of section 503. 
Lastly, we note that Sec.  60-741.62(a) provides that conciliation 
agreements may be used when ``OFCCP finds a material violation of the 
act or this part.'' We, therefore, do not believe that further 
clarification regarding when a benchmark may be used is warranted. Nor 
do we believe that additional definition of the term ``benchmark,'' 
which the American Heritage Dictionary of the English Language defines 
``a standard by which something can be measured or judged,'' is 
necessary. Accordingly, paragraph (b) is adopted into the final rule as 
proposed.

Section 60-741.68 Reinstatement of Ineligible Contractors

    The proposed rule added a sentence at the end of paragraph (a) to 
clarify that the Director shall issue a written decision on a 
contractor's request for reinstatement. No comments were received 
regarding this change, and OFCCP adopts it into the final rule as 
proposed.
Subpart E--Ancillary Matters

Section 60-741.80 Recordkeeping

    This section describes the recordkeeping requirements that apply to 
the contractor under section 503, and the consequences for the failure 
to preserve records in accordance with these requirements. The NRPM 
modified this provision to incorporate the five (5) year records 
retention timeframe required under proposed Sec.  60-741.44(f)(4) 
(linkage agreements and other outreach and recruiting efforts), and 
proposed Sec.  60-741.44(k) (collection of referral, applicant and hire 
data).
    While comments regarding the proposed recordkeeping requirements 
under Sec.  60-741.44(f)(4) and Sec.  60-741.44(k) are addressed in the 
discussions of those provisions, a total of 25 comments were received 
specific to Sec.  60-741.80. Commenters included disability, employer, 
veterans and other associations, contractors, law firms, government 
offices and individuals. Generally, the disability and veterans 
associations favored the longer record retention period, while other 
commenters argued that this was overly burdensome, inconsistent with 
OFCCP's

[[Page 58713]]

other recordkeeping requirements, and confusing.
    As previously noted in this preamble, in response to comments 
regarding the burden associated with maintaining records for five 
years, the final rule reduces the recordkeeping requirements for 
Sec. Sec.  60-741.44(f)(4) and 60-741.44(k) to three years. To reduce 
any potential for confusion, the final rule includes a new paragraph 
(b) in Sec.  60-741.80 specifying in one place those records that have 
the three-year requirement, and renumbering paragraph (b) of the 
existing rule as paragraph (c). OFCCP feels strongly that extending the 
recordkeeping requirements for these particular provisions, which are 
primarily related to recruitment and outreach, will enable contractors 
to better determine the effectiveness of their recruitment and outreach 
activities over time. As noted in the NPRM, the absence of data makes 
it nearly impossible for contractors and OFCCP to perform even 
rudimentary evaluations of the availability of individuals with 
disabilities in the workforce, or to make any quantitative assessments 
of how effective contractor outreach and recruitment efforts have been 
in attracting candidates with disabilities. These records will give 
contractors historical data that can be used for analyzing their 
compliance efforts.
    Paragraph (d) of the existing rule provides that the ``requirements 
of this section shall apply only to records made or kept on or after 
August 19, 1996,'' the effective date of a previous amendment to the 
section 503 implementing regulations. The final rule deletes this 
paragraph, as it is now obsolete.

Section 60-741.81 Access to records

    This section describes a contractor's obligations to permit OFCCP 
to access its records during compliance evaluations and complaint 
investigations. The NPRM proposed two changes to the current 
regulation. First, it added a sentence requiring the contractor to 
provide off-site access to materials if requested by OFCCP 
investigators or officials as part of a compliance evaluation or 
complaint investigation. Second, it required that the contractor 
specify to OFCCP all formats (including specific electronic formats) in 
which its records are available, and produce records to OFCCP in the 
formats selected by OFCCP.
    Sixteen comments were received from contractors, employer 
associations and law firms regarding this proposal. Most of the 
commenters requested that OFCCP eliminate the proposed changes. A few 
commenters objected specifically to the requirement to provide records 
in the format(s) OFCCP selects, and almost all expressed concern that 
allowing OFCCP access to records off-site raised potential 
confidentiality risks.
    The final rule retains the proposed requirement that contractors 
provide OFCCP off-site access to materials upon request. As an initial 
matter, we note that access to company records off-site is not a novel 
approach, as Executive Order 11246 contains no limitation on the 
location of access to records for a scheduled compliance evaluation, 
and indeed specifically references off-site access. The final rule's 
general access regulation conforms to those principles. Moreover, in 
light of contractors' increased use of readily portable electronic 
records in multiple locations, this change will provide OFCCP with 
greater flexibility during evaluations and investigations, promoting 
increased efficiency.
    However, OFCCP modified Sec.  60-741.81 of the final rule in 
response to concerns regarding record confidentiality. Section 60-
741.81 now includes the following language: ``OFCCP will treat records 
provided by the contractor to OFCCP under this section as confidential 
to the maximum extent the information is exempt from public disclosure 
under the Freedom of Information Act, 5 U.S.C. 552.'' It is the 
practice of OFCCP not to release data where the contractor is still in 
business, and the contractor indicates, and through the Department of 
Labor review process it is determined, that the data are confidential 
and sensitive and that release of the data would subject the contractor 
to commercial harm. This language affirms OFCCP's commitment to ensure 
confidentiality to the fullest extent allowed by law. Further, all 
OFCCP Compliance Officers receive training on the importance of keeping 
records confidential during compliance evaluations and complaint 
investigations. OFCCP will continue to stress this policy to ensure 
that contractor records are kept secure by the agency at all times.
    The final rule also clarifies the provision regarding OFCCP's 
ability to request records in specific formats. The final rule states 
that: ``[t]he contractor must provide records and other information in 
any of the formats in which they are maintained, as selected by 
OFCCP.'' This language makes clear that the provision will not require 
contractors to invest time or resources creating records in a specific 
format, or creating a documented ``list'' of the formats in which they 
have documents available. Rather, contractors merely need to inform 
OFCCP of the formats in which they maintain their records and other 
information, and allow OFCCP to select the format(s) in which the 
records or other information will be provided. This provision should 
result in more efficient OFCCP evaluations and investigations.
Appendix A to Part 60-741--Guidelines on a Contractor's Duty To Provide 
Reasonable Accommodation
    The proposed rule included several changes to Appendix A to reflect 
updated terminology and revisions made elsewhere in the regulations. 
Specifically, we: (1) Proposed changing the term ``otherwise 
qualified'' to ``qualified,'' in paragraph 1, to conform more closely 
to the terminology used in the ADA, as amended, and this part; (2) 
added a reference to the proposed new requirement, in proposed Sec.  
60-741.45, that contractors develop written reasonable accommodation 
procedures; (3) proposed revising paragraph 2 to reflect the new 
requirement, in Sec.  60-741.42, that contractors invite applicants to 
self-identify as an individual with a disability at the pre-offer 
stage; (4) noted that the invitation to self-identify also invites 
individuals with disabilities to request any reasonable accommodation 
that they might need; (5) proposed requiring, in paragraph 4, that, in 
the event that a needed reasonable accommodation constitutes an undue 
hardship for the contractor, the individual with a disability be given 
the option of providing the accommodation or paying the portion of the 
cost that constitutes the undue hardship for the contractor; (6) 
proposed revising paragraph 5 to require the contractor to seek the 
advice of the individual with a disability when providing reasonable 
accommodation; (7) proposed changing the reference to ``Sec.  60-
741.2(v)'' in paragraphs 5 and 8 of the appendix to ``Sec.  60-
741.2(t)'' to reflect the revised alphabetical structure of the rule's 
definitions; and (8) updated the reference to various information 
resources, and replaced the term ``TDD'' with ``TTY'' to reflect 
current technology.
    Just one commenter addressed the proposed revisions to Appendix A. 
This commenter recommended that we add a network of State vocational 
rehabilitation agencies to the examples of reasonable accommodation 
resources referenced in paragraph 5. OFCCP declines to add this 
reference as State vocational rehabilitation services agencies are 
already listed as a reasonable accommodation resource for contractors. 
OFCCP, therefore, adopts the proposed changes into the final rule

[[Page 58714]]

with the following modifications: (1) The reference to the proposed 
requirement to establish written reasonable accommodation procedures is 
deleted, consistent with the elimination of proposed Sec.  60-741.45; 
(2) the third sentence of paragraph 2 is revised to reflect the use of 
a single voluntary self-identification form for the pre-offer and post-
offer invitations to self-identify as an individual with a disability; 
and (3) the reference to the definition of ``reasonable accommodation'' 
is renumbered Sec.  60-741.2(s).

Regulatory Procedures

Executive Order 13563 and Executive Order 12866

    Executive Order 13563 directs agencies to propose or adopt a 
regulation only upon a reasoned determination that its benefits justify 
its costs; tailor the regulation to impose the least burden on society, 
consistent with obtaining the regulatory objectives; and, in choosing 
among alternative regulatory approaches, select those approaches that 
maximize net benefits. Executive Order 13563 recognizes that some 
benefits are difficult to quantify and provides that, where appropriate 
and permitted by law, agencies may consider and discuss qualitatively 
values that are difficult or impossible to quantify, including equity, 
human dignity, fairness, and distributive impacts.
    This rule is economically significant as it will have an annual 
effect on the economy of $100 million or more. EO 12866 sec. 3 at (f). 
In this section, we present a summary of the costs and benefits 
associated with the revisions to part 60-741. OFCCP estimates that 
first-year costs in the rule to be in the range of $349,510,926 to 
$659,877,833. This includes (1) One-time costs; (2) recurring costs; 
(3) capital start-up costs; and (4) operations and maintenance 
costs.\31\ The recurring costs in years contractors do not invite all 
employees to voluntarily self-identify as an individual with a 
disability will range from $162,371,816 to $395,258,387. The recurring 
costs in the years that contractors do invite all employees to 
voluntarily self-identify as an individual with a disability will range 
from $242,345,778 to $480,476,442.
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    \31\ These costs include both establishment and contractor 
company level costs.
---------------------------------------------------------------------------

A. Introduction
    The final regulatory impact analysis is substantially different 
from the preliminary regulatory impact analysis presented in the 
section 503 NPRM based on comments received during the public and 
interagency comment period. First, the final rule has been scaled down 
significantly so that it focuses on requirements essential to creating 
accountability, and supporting the ability of contractors to conduct 
meaningful self-assessments using more data. This rule also minimizes 
the costs to contractors while not sacrificing the agency's ability to 
conduct effective compliance evaluations. A detailed discussion of the 
proposals in the NPRM that OFCCP did not adopt in the final rule is 
included in the Discussion of Impacts section below. Second, OFCCP 
increased the number of contractor establishments affected by the rule 
to take into account some of the public comments at the NPRM phases of 
the rulemaking. Third, the analysis acknowledges that some 
establishments and/or companies may incur higher costs under the final 
rule and illustrates a range of costs to implement several provisions. 
The analysis considers, when appropriate, costs that may be incurred by 
contractors' headquarters versus establishments, and differences 
between contractors with automated human resources and systems and 
those with manual systems.
1. Eliminated Several Proposals in the NPRM
    While all the proposals in the NPRM had value, after assessing the 
comments received on the NPRM published on December 9, 2011, we made 
several changes in the final rule. OFCCP reconsidered whether the cost 
of several proposals in the NPRM could be justified by their potential 
benefits, and whether alternative methods or approaches could achieve 
comparable or acceptable benefits for less cost or burden. We retain in 
the final rule those provisions proposed in the NPRM that create 
greater contractor accountability through enhanced data collection and 
recordkeeping. Therefore, as an example, the final rule does not 
require each contractor to establish three ``linkage'' agreements with 
various disability service organizations to facilitate disability 
recruitment.
    Other examples of how the final rule takes a tailored approach 
include, but are not limited to, eliminating the proposal that 
contractors reproduce the entire equal opportunity clause in all 
contracts and subcontracts; the proposal that contractor staff training 
must cover a list of specific training items; the proposal to mandate 
the adoption of written reasonable accommodation procedures; the 
proposal to mandate annual reviews of personnel policies; and the 
proposal to mandate that contractors identify the official responsible 
for the affirmative action program on all communications are also 
eliminated in the final rule.
2. Increased the Contractor Establishment Count
    OFCCP received comments on the estimated number of contractor 
establishments, including a recommendation to accept a count of 285,390 
using the Veterans Employment Training Services (VETS) annual report. 
While OFCCP declines to exclusively rely on the VETS report, we present 
an estimated high end for the range of the cost of the rule based on a 
contractor establishment number of 251,300. This number is based on 
2010 VETS data from their pending Information Collection Request.\32\
---------------------------------------------------------------------------

    \32\ OMB Control Number 1293-0005, Federal Contractor Veterans' 
Employment Report, VETS--100/VETS-100A, http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201104-1293-003 (last accessed 
Aug. 13, 2013).
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    All costs and hours in the burden analysis of this final rule are 
calculated using these revised numbers for Federal contractor 
establishments. Federally-assisted construction contractors are not 
subject to these regulations and, therefore, are not included in this 
total. See Sec.  60-741.2(i) for the definition of ``Government 
contract.''
3. Revised and Increased Burden Estimates
    OFCCP received approximately 130 comments on the burden imposed by 
the section 503 NPRM from individuals, disability associations, 
companies and industry groups. A few commenters stated that the 
benefits of the proposed rule outweigh the costs. The majority of 
comments on the burden of the proposed rule expressed different views. 
Commenters noted that OFCCP dramatically underestimated the burden 
associated with the rule. Several commenters provided their own burden 
estimates, though often with little discussion or explanation of their 
methodology, that they asserted more accurately reflected the impact 
that the proposed provisions would have on contractors. The estimates 
provided by commenters were significantly higher than those used in the 
NPRM and resulted in total costs that far exceeded the NPRM's estimate. 
Commenters also expressed concern that the proposals in the NPRM 
seeking to require contractors to collect data and engage in other 
personnel activities would change their business functions and would 
not lead to jobs for individuals with disabilities. Commenters 
especially emphasized the costs of modifying their existing human

[[Page 58715]]

resources information systems in order to collect new categories of 
data on individuals with disabilities.
    OFCCP acknowledges that it is challenging to estimate the precise 
amount of time each establishment or headquarters, as appropriate, will 
take to engage in certain activities. However, in response to public 
comments, the final regulatory impact analysis attempts to account for 
the fact that smaller contractors may not have the same human resources 
capabilities as larger contractors. OFCCP does so by providing low and 
high range estimates for certain requirements. This approach is taken 
to distinguish between contractors with automated application and human 
resources information systems represented at the low end of the range 
in terms of burden, and contractors with manual systems represented at 
the high end of the range. The distinction is applied, for example, 
when estimating burden related to meeting the data collection 
requirements of the final rule. The high end of the range estimate is 
based on the assumption that smaller contractors with 50-100 employees 
may still use manual application or human resources processes. These 
contractors would likely expend more time conducting the kind of data 
collection and analysis required under the final rule. The range also 
factors in varying estimates for the number of applicants who would 
fill out the invitation to self-identify.
    In addition, as mentioned earlier, OFCCP presents burden estimates 
based on two different contractor establishment numbers in order to 
reflect the range of opinions about the size of the universe of 
contractors affected by this rule.
    Elsewhere in this issue of the Federal Register, OFCCP is 
publishing a final rule amending the VEVRAA implementing regulations at 
41 CFR part 60-300. Many of the revisions contained in this section 503 
final rule mirror revisions contained in the VEVRAA final rule. In 
consideration of the fact that contractors will, thus, already be 
required to perform certain activities, OFCCP eliminated the burden in 
this analysis for provisions that mirror requirements in part 60-300. 
OFCCP also decreased the burden for one-time or capital and start-up 
costs that are substantially similar to those that are already required 
under the VEVRAA final rule.
B. The Need for the Regulation
    Employment discrimination and underutilization of qualified 
workers, such as individuals with disabilities and veterans, contribute 
to broader societal problems such as income inequality and poverty. The 
median household income for ``householders'' with a disability, aged 18 
to 64, was $25,420 compared with a median income of $59,411 for 
households with a householder who did not report a disability.\33\ 
Controlling for age and race we find that workers with a disability, on 
average, earn less than private sector workers without a disability. 
The mean hourly wage of those with a disability is $17.62 (with a 
median of $13.73) compared to $21.67 (median $16.99) for those without 
a disability.\34\ Controlling for age and race, male workers with a 
disability earn 23 percent less than males without a disability. The 
disability gap for females is 20 percent.\35\ While 28.8 percent of 
individuals, ages 18 to 64, with a disability were in poverty in 2011, 
the data show that 12.5 percent of those individuals without a 
disability were in poverty.\36\
---------------------------------------------------------------------------

    \33\ Income, Poverty and Health Insurance Coverage in the United 
States: 2011, Current Population Reports, issued September 2012, 
http://www.census.gov/prod/2012pubs/p60-243.pdf (last accessed July 
8, 2013), p. 10. A ``householder'' is the person (or one of the 
people) in whose name the home is owned or rented and the person to 
whom the relationship of other household members is recorded. 
Typically, it is the head of a household. Only one person per 
household is designated the ``householder.''
    \34\ OFCCP ran wage regressions using the natural log of 
effective hourly wages calculated as real income divided by usual 
hours per week and weeks per year. The weeks per year variable is 
categorical so the midpoint of each category was used as a proxy for 
the number of weeks worked. Explanatory variables include age and 
race. The sample was restricted to individuals aged 18 to 64 
employed in the private sector. Individuals currently in the armed 
forces were not included in the sample. All OFCCP models used ACS 
2008-2010 Public Use Microdata (PUMS).
    \35\ Id.
    \36\ Income, Poverty and Health Insurance Coverage in the United 
States: 2011, Current Population Reports, issued September 2012, 
http://www.census.gov/prod/2012pubs/p60-243.pdf (last accessed July 
8, 2013).
---------------------------------------------------------------------------

    Based on our analysis of the American Community Survey (ACS) 2008-
2010 Public Use Microdata (PUMS), and controlling for age and race we 
found that: \37\
---------------------------------------------------------------------------

    \37\ OFCCP ran wage regressions using the natural log of 
effective hourly wages calculated as real income divided by usual 
hours per week and weeks per year. The weeks per year variable is 
categorical so the midpoint of each category was used as a proxy for 
the number of weeks worked. Explanatory variables include age and 
race. The sample was limited to individuals aged 18 to 64 employed 
in the private sector. All OFCCP models used ACS 2008-2010 Public 
Use Microdata (PUMS).
---------------------------------------------------------------------------

     Males with disability had a 7.2 percentage point higher 
unemployment rate than males without a disability.
     Females with disability had a 6.5 percentage point higher 
unemployment rate than females without a disability.
     Females with a disability had a 29.2 percentage point 
higher probability of not being in the labor force than females without 
a disability.
    A 2009 report found that ``having a disability is associated with 
lower earnings due to decreased ability to work, prejudice, and other 
factors.'' \38\ There are a number of hypotheses concerning disparities 
in labor force participation, employment rates, and wages. While 
knowledge of opportunities, differences in access and attainment of 
training and education, and underutilization of individuals with 
disabilities likely contribute to these disparities, the culture of the 
typical workplace and discrimination are also factors in some 
employment settings. However, there is little empirical data upon which 
to base targeted interventions. Data collection remains a critical 
need.
---------------------------------------------------------------------------

    \38\ Changing Demographic Trends that Affect the Workplace and 
Implications for People with Disabilities, Executive Summary (Nov. 
30, 2009), p. 4. ``Studies agree that disability incidence is 
related to income and earnings. A number of intertwined 
relationships, however, make it somewhat difficult to sort out cause 
and effect.''
---------------------------------------------------------------------------

    The final rule is intended to provide contractors with the tools 
needed to evaluate their own compliance and proactively identify and 
correct any deficiencies in their employment practices. Because the 
existing regulations implementing section 503 do not provide 
contractors with adequate tools to assess whether they are complying 
with their nondiscrimination and affirmative action obligations to 
recruit and employ qualified individuals with disabilities, the 
revisions of the final rule will assist contractors in averting 
potentially expensive violation findings by OFCCP.
C. Discussion of Impacts
    In this section, OFCCP presents a summary of the costs associated 
with the revisions to part 60-741. The estimated cost to contractors is 
based on Bureau of Labor Statistics data in the publication ``Employer 
Costs for Employee Compensation'' (September 2011), which lists total 
compensation for management, professional, and related occupations as 
$50.11 per hour and administrative support as $23.72 per hour. OFCCP 
estimates that 52 percent of the burden hours will be management, 
professional, and related occupations and 48 percent will be 
administrative support.

[[Page 58716]]



      Table 1--Contractor New Requirements--171,275 Establishments
------------------------------------------------------------------------
              Burden                     Low cost          High cost
------------------------------------------------------------------------
                             One-Time Burden
------------------------------------------------------------------------
EO Clause, Parag 10 (Include              $320,660.14        $320,660.14
 ``Disability'' EEO Statement)....
741.5(d) (Modify EO Clause).......       1,603,263.00       1,603,263.00
741.42 (Modify Application               2,101,102.72       2,583,328.54
 Systems).........................
                                   -------------------------------------
    Total.........................       4,025,025.86       4,507,251.68
------------------------------------------------------------------------
                            Recurring Burden
------------------------------------------------------------------------
741.42 (Invitation to Self-              9,619,542.08       9,619,542.08
 Identify)........................
741.42 (Invitation to Self-             68,751,157.00      68,751,157.00
 Identify Employee Burden)........
741.42 (Recordkeeping)............       1,603,263.25       1,603,263.25
741.44(f) (Review Outreach and           3,174,438.00       3,174,438.00
 Recruitment).....................
741.44(f)(4) (Outreach and               1,068,842.17       1,068,842.17
 Recruitment Recordkeeping).......
741.44(h) (AAP Audit                     1,068,842.17       1,068,842.17
 Recordkeeping)...................
741.44(k) (Data Collection and           3,740,925.75       6,840,549.94
 Analysis)........................
741.45 (Utilization Analysis).....       6,413,015.00       8,978,223.00
741.45 (Utilization Analysis             1,068,842.00       1,068,842.00
 Recordkeeping)...................
                                   -------------------------------------
    Total.........................      96,508,867.42     102,173,699.61
------------------------------------------------------------------------
Capital and Start-up..............      28,312,120.00      39,086,481.00
Rule Familiarization..............       8,582,590.25      34,330,361.00
Operations and Maintenance........         616,590.00       1,356,498.00
                                   -------------------------------------
Reasonable Accommodations.........     114,770,291.00     114,770.291.00
                                   -------------------------------------
    Total.........................     252,815,484.53     296,224,582.29
------------------------------------------------------------------------


      Table 2--Contractor New Requirements--251,300 Establishments
------------------------------------------------------------------------
             Provision                   Low cost          High cost
------------------------------------------------------------------------
                             One-Time Burden
------------------------------------------------------------------------
EO Clause, Parag 10 (Include              $470,468.00        $470,468.00
 ``Disability'' EEO Statement)....
741.5(d) (Modify EO Clause).......         784,115.00         784,115.00
741.42 (Modify Application               3,102,510.41       3,814,616.30
 Systems).........................
                                   -------------------------------------
    Total.........................       4,357,093.41       5,069,199.30
------------------------------------------------------------------------
                            Recurring Burden
------------------------------------------------------------------------
741.42 (Invitation to Self-             14,114,063.00      14,114,063.00
 Identify)........................
741.42 (Invitation to Self-             68,751,667.00      68,751,667.00
 Identify Employee Burden)........
741.42 (Recordkeeping)............       2,352,344.00       2,352,344.00
741.44(f) (Review Outreach and           4,704,687.82       4,704,687.82
 Recruitment).....................
741.44(f)(4) (Outreach and               1,568,229.27       1,568,229.27
 Recruitment Recordkeeping).......
741.44(h) (AAP Audit                     1,568,229.27       1,568,229.27
 Recordkeeping)...................
741.44(k) (Data Collection and           5,488,802.46      10,036,667.35
 Analysis)........................
741.45 (Utilization Analysis).....       9,409,375.64      13,173,125.90
741.45 (Utilization Analysis             1,568,229.27       1,568,229.27
 Recordkeeping)...................
                                   -------------------------------------
    Total.........................     109,525,627.73     117,837,242.88
------------------------------------------------------------------------
Capital and Start-up..............      41,555,091.78      57,716,207.82
Rule Familiarization..............      12,592,643.00      50,370,572.00
Operations and Maintenance........         904,680.00       1,990,296.00
Reasonable Accommodation..........     114,770,291.00     114,770,291.00
    Costs to Companies............     283,705,426.92     347,753,809.00
------------------------------------------------------------------------


                                Table 3--Completing Pre-Offer Self-Identification
----------------------------------------------------------------------------------------------------------------
                                  171,275 establishments                        251,300 establishments
      Provision       ------------------------------------------------------------------------------------------
                              Low cost              High cost               Low cost              High cost
----------------------------------------------------------------------------------------------------------------
          741.42(a)         $96,695,442.00        $212,729,213.00        $141,874,556.25        $312,124,023.75
----------------------------------------------------------------------------------------------------------------


[[Page 58717]]

1. Regulatory Familiarization
    Several commenters noted that the proposed rule did not quantify 
the burden of reading and understanding the section 503 revisions on 
contractors. OFCCP acknowledges that 5 CFR 1320.3(b)(1)(i) requires 
agencies to include in the burden analysis for new information 
collection requirements the estimated time it takes for contractors to 
review and understand the instructions for compliance. In order to 
minimize the burden, OFCCP will publish compliance assistance materials 
including, but not limited to, factsheets and ``Frequently Asked 
Questions.'' OFCCP will also host webinars for the contractor community 
that will describe the key provisions in the final rule, and conduct 
listening session to identify any specific challenges contractors 
believe they face, or may face, when complying with the requirements of 
the final rule.
    OFCCP estimates it will take, at a minimum, 1 hour to have a 
management professional at each establishment either read compliance 
assistance materials provided by OFCCP or participate in an OFCCP 
webinar to learn about the new requirements of the final rule. OFCCP 
believes that this is a reasonable estimate since there are 
substantially fewer new requirements in the final rule than proposed in 
the NPRM, and contractors already have at least one person that is 
responsible for overseeing their compliance with OFCCP's regulations. 
The estimated cost of this burden is based on data from the Bureau of 
Labor Statistics in the publication ``Employer Costs for Employee 
Compensation'' (September 2011), which lists total compensation for a 
management professional at $50.11. Therefore, the estimated burden for 
rule familiarization is 171,275 hours (171,275 contractor 
establishments x 1 hour = 171,275 hours). We calculate the total 
estimated minimum costs as $8,582,590 (171,275 hours x $50.11/hour = 
$8,582,590) or $50 per establishment.
    Commenters suggested that reviewing the requirements of the final 
rule would take up to 6 hours. OFCCP declines to adopt this calculation 
since it is based on reviewing the proposed rule which included a 
significant number of additional requirements that are not in the final 
rule. Therefore, OFCCP estimates the maximum for reviewing the rule 
would be 4 hours for a total of 685,100 (171,275 contractor 
establishments x 4 hour = 685,100 hours). We calculate the total 
maximum estimated start-up costs as $34,330,361 (685,100 x $50.11/hour 
= $34,330,361) or $200 per establishment.
    Assuming there are 251,300 establishments impacted by the final 
rule, the estimated minimum burden for rule familiarization would be 
251,300 hours (251,300 contractor establishments x 1 hour = 251,300 
hours). The total estimated minimum costs would be $12,592,643 (251,300 
hours x $50.11/hour = $12,592,643) or $50 per establishment. OFCCP 
estimates the maximum for reviewing the rule would be 4 hours for a 
total of 1,005,200 hours (251,300 contractor establishments x 4 hour = 
1,005,200 hours). The total maximum estimated maximum costs would be 
$50,370,572 (1,005,200 hours x $50.11/hour = $50,370,572) or $200 per 
establishment.

2. Section 60-741.5 Equal Opportunity Clause (EO Clause)

EO Clause, Paragraph 4

    Paragraph 4 of the final rule clarifies the contractor's duty to 
provide notices of employee rights and contractor obligations in a 
manner that is accessible and understandable to persons with 
disabilities. The final rule revises the parenthetical at the end of 
the sentence by replacing the outdated suggestion of ``hav[ing] the 
notice read to a visually disabled person'' as an accommodation with 
the suggestion to provide Braille, large print, or other versions that 
allow persons with disabilities to read the notices themselves. The 
NPRM estimated that it would take contractors ten (10) minutes to 
receive an accommodation request and maintain records of compliance.
    Upon further consideration, OFCCP determines that there are no new 
costs related to this provision. The nondiscrimination requirements of 
section 503 currently require contractors to provide reasonable 
accommodation. See 41 CFR 60-741.21(f). This modification simply 
updates the example of a possible accommodation that contractors may 
provide to a visually impaired person, and does not impose any new 
obligation on contractors.
    Paragraph 4 of the final rule also allows contractors to post 
notices regarding employee rights and their equal employment 
opportunity obligations electronically if the contractor has actual 
knowledge that employees will have access to them. OFCCP estimates no 
additional burden for contractors that opt to post relevant notices 
electronically. This provision simply provides contractors with 
another, more expedient, means to meet its existing obligations.
    Paragraph 4 of the final rule requires contractors to 
electronically post a notice of job applicants' rights if the 
contractor utilizes an electronic application. The existing regulations 
require contractors to post notices regarding employee rights and equal 
employment opportunity obligations in conspicuous places for employees 
and applicants. See 41 CFR 60-741.5(a)(4). The final rule clarifies how 
contractors can meet this existing obligation for on-line applicants. 
Therefore, there is no new burden for this provision.

EO Clause, Paragraph 7

    Under existing Federal requirements, including EO 11246, 
contractors are required to state in solicitations and advertisements 
that the company is an equal opportunity employer. See 41 CFR 60-
1.4(a)(2). The NPRM proposed adding a new paragraph 7 to the EO Clause 
that would require the contractor to also state in solicitations and 
advertisements that it is an equal opportunity employer of individuals 
with disabilities. The NPRM estimated that it would take contractors 
five (5) minutes to comply with this provision. A few commenters noted 
that this would increase the costs of solicitations and advertisements 
since some newspapers and other publications charge for each word of a 
solicitation.
    The final rule incorporates the requirement for contractors to 
state in all solicitations and advertisements that the company is an 
equal opportunity employer of individuals with disabilities. OFCCP 
acknowledges that some contractors may experience an increased cost in 
light of this requirement. However, there is no indication based on the 
comments that OFCCP received on this issue that this would be a 
significant problem for a substantial number of contractors. In fact, 
the cost of many advertisements and solicitations are based on size 
(i.e., quarter-page, half-page, full-page) or by listing, rather than 
the number of words in the text. Moreover, the cost of an advertisement 
will also depend on the publication's circulation and location. The 
number of words in the text actually appears be a lesser factor when 
determining cost. After some research, OFCCP determined that the 
average cost per word nationally is between 10 and 20 cents for a 
classified advertisement. Therefore, the cost would not be greatly 
impacted by adding individuals with disabilities to the affirmative 
action statement in advertisements.
    Information from OFCCP field staff indicates that many contractors 
already include ``disabilities'' in their equal employment opportunity 
statement for solicitations. Therefore, based on field experience 
evaluating contractor

[[Page 58718]]

practices, OFCCP estimates that approximately 40 percent of contractor 
establishments, or 68,510, currently comply with this requirement. 
OFCCP estimates that the remaining 102,765 contractor establishments 
will have a one-time burden of 5 minutes for amending their existing 
standard equal employment opportunity statement to include 
``individuals with disabilities'' or similar language. Therefore, the 
total burden for this provision is 8,564 hours (102,765 contractor 
establishments x 5 minutes/60 = 8,564 hours). The cost for this 
provision is approximately $320,660.
    Assuming there are 251,300 contractor establishments impacted by 
the final rule, the burden for this provision would be 12,565 hours 
(150,780 contractor establishments x 5 minutes/60 = 12,565 hours). The 
total cost of the provision would be $470,469.

Section 60-741.5(d)

    The NPRM proposed requiring the entire EO Clause be included 
verbatim in Federal contracts. The NPRM estimated that it would take 
contractors 5 minutes to download and incorporate the required text in 
contract templates. OFCCP received nineteen comments regarding the 
proposed provision. Commenters primarily asserted that the proposed 
requirement would be too burdensome, since the length of contracts 
would increase significantly, and requested that incorporation by 
reference be retained. In response to these comments, the final rule 
permits incorporation of the EO Clause by reference with the addition 
of some additional language that OFCCP has provided in the regulatory 
text summarizing VEVRAA's purpose. OFCCP estimates that contractors 
will spend approximately 15 minutes modifying existing contract 
templates to ensure the additional language is included. The burden for 
this provision is 42,819 hours (171,275 contractor establishments x 5 
minutes/60 = 42,819 hours). The cost for this provision is $1,603,263.
    Assuming there are 251,300 contractor establishments impacted by 
the final rule, the burden for this provision would be 20,942 hours 
(251,300 contractor establishments x 5 minutes/60 = 20,942 hours). The 
cost for this provision would be $784,115.

3. Section 60-741.41 Availability of the Affirmative Action Program

    The NRPM proposed requiring contractors to inform off-site 
employees of the availability of the affirmative action program for 
review. The burden for this provision was accounted for in the 
Paperwork Reduction Act Analysis of the VEVRAA NPRM. The final rule 
does not incorporate this proposal. Instead, the final rule retains the 
language in the existing Sec.  60-741.41, but notes that the data 
metrics required by Sec.  60-741.44(k) are not required to be made 
available to the contractor's employees or applicants. Therefore, no 
new burden is created.

4. Section 60-741.42 Invitation to Self-Identify

    The NPRM proposed several significant revisions to this section, 
including requiring the contractor to invite all applicants to self-
identify as an individual with a disability prior to an offer of 
employment and adding a new requirement for contractors to annually 
invite all employees to self-identify as an individual with a 
disability, among other things. The NPRM estimated that it would take 5 
minutes for the contractor to download and save the text prescribed by 
OFCCP for the invitation to self-identify into a separate document that 
it can store electronically, include it in electronic applications, or 
print out to include in a hard copy application package, as needed. The 
NPRM further estimated that it would take contractors 5 minutes to 
download and save the prescribed text for the annual survey to invite 
employees to self-identify as an individual with a disability. Finally, 
the NPRM estimated that it would take contractors 1 minute to maintain 
the self-identification forms.
    Several commenters expressed concern about the burden associated 
with the pre-offer invitation to self-identify. Commenters stated that 
OFCCP's estimate of 5 minutes was unreasonable. Commenters asserted 
that the pre-offer invitation to self-identify would require 
substantial modifications to contractors' application systems. Human 
resources personnel would also have to expend time and resources 
gathering and filing the documents. Commenters further asserted that 
the administrative costs would greatly outweigh the benefits of the 
pre-offer self-identification. At least two commenters stated that the 
pre-offer self-identification should not present a significant burden 
since contractors currently invite individuals to self-identify their 
race, gender, and status as a protected veteran.
    The final rule adopts the voluntary, pre-offer self-identification 
invitation requirement. See 41 CFR 60-741.42 (a). However, in order to 
ease the burden on contractors, OFCCP is creating a single, one-page 
form entitled ``Voluntary Self-Identification of Disability.'' This 
standard form will be used for the pre-offer, post-offer, and the 
invitation to self-identify; it will be made available on the OFCCP Web 
site. This should decrease the administrative time that contractors 
will need to spend putting policies and procedures in place to comply 
with this requirement.
    OFCCP modified its approach to this calculation to specifically 
distinguish between contractors with web-based or automated systems and 
those relying on manual or paper-based systems. Larger contractors, 
those with more than 100 employees are more likely to have web-based 
systems. OFCCP estimates that 72 percent of contractor companies 
utilize Web-based application systems.\39\ Working at the corporate 
level, contractors will take 1.5 hours to review and retrieve existing 
sample invitations to self-identify, adopt the sample ``as is'' or make 
revisions to their existing form, save the invitation to self-identify 
and incorporate the document in the contractor's application form. This 
burden estimate should be considered in conjunction with the start-up 
costs associated with this rule. OFCCP allotted 18 hours in the section 
503 final rule to modify human resources information systems or 
establish a process to comply with the rules' new data collection 
requirements. This is in addition to costs specified for incorporating 
the invitation to self-identify in the application process. Taken 
together, contractors will have over 21 hours to modify their existing 
application process. The burden for these contractors would be 49,676 
hours (33,117 contractor companies x 1.5 hours = 49,676 hours). The 
remaining contractors would simply have to incorporate the invitation 
to self-identify in paper applications. OFCCP estimates this will take 
approximately 30 minutes. The burden for these contractors would be 
6,440 hours (12,879 x 30 minutes/60 = 6,440 hours). The minimum cost 
for this provision is approximately $2,101,103. If all contractors used 
a web-based application the one-time burden of preparing the form and 
making the IT changes for this provision is 68,994 hours (45,996 
contractor companies x 90 minutes/60 = 68,994 hours). The maximum cost 
for this provision is $2,583,328.
---------------------------------------------------------------------------

    \39\ This estimate is based on the assumption that 72 percent of 
regulated contractor companies have greater than 100 employees and 
will likely use a web-based application system.
---------------------------------------------------------------------------

    Assuming there are 251,300 contractor establishments, or 67,919 
contractor companies,\40\ in OFCCP's

[[Page 58719]]

jurisdiction, contractors working at the corporate level, will take 1.5 
hours to review and retrieve existing sample invitations to self-
identify, adopt the sample ``as is'' or make revisions to their 
existing form, save the invitation to self-identify and incorporate the 
document in the contractor's application form. The burden for these 
contractors would be 73,352 hours (48,901 contractor companies x 1.5 
hours = 73,352 hours). The remaining contractors would simply have to 
incorporate the invitation to self-identify in paper applications. 
OFCCP estimates this will take approximately 30 minutes. The burden for 
these contractors would be 9,509 hours (19,017 contractor companies x 
30 minutes/60 = 9,509 hours). The minimum cost for this provision would 
be approximately $3,102,510.
---------------------------------------------------------------------------

    \40\ OFCCP utilized the same ratio (approximately 3.7) of parent 
companies to number of establishments from the EEO-1 data to 
determine that among the universe of 251,300 establishments there 
are approximately 67,919 Federal contractor companies
---------------------------------------------------------------------------

    If all contractors used a web-based application the one-time burden 
of preparing the form and making the IT changes for this provision is 
101,879 hours (67,919 contractor companies x 90 minutes/60 = 101,879 
hours). The maximum cost for this provision would be approximately 
$3,814,616.
    Applicants for available positions with covered Federal contractors 
will have a minimal burden complying with section 60-741.42(a) in the 
course of completing their application for employment with the 
contractor. Section 60-741.42(a), on pre-offer self-identification, 
requires contractors to invite all applicants to self-identify whether 
or not they are an individual with a disability. OFCCP estimates that 
there will be a minimum of 15 applicants per job vacancy for on average 
15 vacancies per year. OFCCP further estimates that it will take 
applicants approximately 5 minutes to complete the form. The burden for 
this provision is 3,211,406 hours (171,275 contractor establishments x 
15 listings x 15 applicants x 5 minutes/60 = 3,211,406 hours). The 
minimum costs for this provision is $96,695,442. OFCCP estimates that 
there will be a maximum of approximately 33 applicants per job vacancy 
for on average 15 vacancies per year per establishment. OFCCP further 
estimates that it will take applicants approximately 5 minutes to fill 
out the self-identification form. The burden for this provision is 
7,065,093 hours (171,275 contractor establishments x 15 listings x 33 
applicants x 5 minutes/60 = 7,065,093 hours). The maximum costs for 
this provision would be $212,729,213.
    Assuming that 251,300 establishments are impacted by the final 
rule, the minimum burden for this provision would be 4,711,875 hours 
(251,300 contractor establishments x 15 listings x 15 applicants x 5 
minutes/60 = 4,711,875 hours). The minimum costs for this provision 
would be $141,874,556. OFCCP estimates that there will be a maximum of 
approximately 33 applicants per job vacancy for on average 15 vacancies 
per year per establishment. OFCCP further estimates that it will take 
applicants approximately 5 minutes to fill out the self-identification 
form. The burden under this scenario would be 10,366,125 hours (251,300 
contractor establishments x 15 listings x 15 applicants x 5 minutes/60 
= 10,366,125 hours). The costs would be $312,124,024.
    Commenters also expressed concern about the proposed requirement to 
anonymously survey all employees to provide an opportunity to 
voluntarily self-identify as an individual with a disability. 
Commenters were particularly concerned about the administrative costs 
related to this provision. A few commenters suggested that complying 
with this requirement would cost thousands of dollars. These commenters 
emphasized the costs related to conducting the survey, securely 
maintaining the data, or consulting with an outside entity to 
administer the survey. Several commenters noted that the information 
would lack any value because it would be highly unreliable.
    The final rule, at Sec.  60-741.42(c), requires contractors to 
invite each of their employees to self-identify as an individual with a 
disability during the first year it becomes subject to the requirements 
of this section, and at five year intervals, thereafter. At least once 
during the years between each invitation, contractors must remind their 
employees that they may voluntarily update their disability status at 
any time. As noted earlier, the invitation to self-identify is a 
critical component to allowing contractors, and subsequently OFCCP, to 
collect valuable, targeted data on the number of individuals with 
disabilities in the contractors' workforce. Furthermore, inviting self-
identification on a periodic basis will enable contractors to capture 
employees who may become disabled after their hire date or may feel 
more comfortable self-identifying once he or she has been employed for 
some time. Contractors will incur the costs of the invitation 
essentially every other year.
    In light of the various comments raised regarding the burden 
associated with this requirement, the final rule revises the burden 
estimate for this provision. The contractors' employees will be asked 
to self-identify utilizing the same ``Voluntary Self-Identification of 
Disability'' form provided by OFCCP to be used at the pre-offer and 
post-offer invitation. Therefore, the time needed by employees to 
review and complete the form for the voluntary self-identification 
should be nominal. The form will be simple, written plainly, and will 
provide employees the option of selecting between one of two 
identification options.
    The employee invitation to self-identify does not require creating 
an entirely new database or methodology for capturing employee data. 
Nor does this requirement necessitate procuring an outside consultant 
to administer this invitation. Rather, OFCCP envisions that this 
process will require a dedicated period of time during which 
contractors will enable existing employees to voluntarily self-identify 
as an individual with a disability using the same ``Voluntary Self-
Identification of Disability'' form mentioned previously. Contractors 
can also track the data in the same manner that they use for other 
required invitations to self-identify.
    However, OFCCP acknowledges that this process may take longer than 
the 5 minutes estimated by the NPRM. The final rule estimates that it 
will take contractors 1.5 hours to conduct the invitation to self-
identify. This includes the time needed to develop communications 
regarding the invitation, distribute communications, and collect and 
track self-identification forms. OFCCP believes this process will 
become much more streamlined over time and will likely require 
significantly less than 1.5 hours in subsequent years. The estimated 
burden for this provision is 256,913 hours (171,275 contractor 
establishments x 90 minutes/60 = 256,913 hours). The approximate cost 
of this provision is $9,619,542.
    Assuming there are 251,300 establishments impacted by the final 
rule, the burden for this provision would be 376,950 hours (251,300 
contractor establishments x 5 minutes/60 = 376,950 hours). The total 
cost of the provision would be $14,114,063.
    Contractor employees will have to spend some time reviewing and/or 
completing the survey. There are approximately 27,400,000 Federal 
contractor employees. OFCCP estimates that employees will take 5 
minutes to complete the self-identification form. The burden for this 
provision is 2,283,333 hours (27,400,000 employees

[[Page 58720]]

x 5 minutes/60 = 2,283,333 hours). Utilizing Bureau of Labor Statistics 
data in the publication ``Employer Costs for Employee Compensation'' 
(September 2011), which lists an average total compensation for all 
civilian workers as $30.11 per hour, the cost of this provision would 
be $68,751,157.
    OFCCP further estimates that it will take contractors 15 minutes to 
maintain self-identification forms. This time includes either manually 
storing the forms in a filing cabinet or saving them to an electronic 
database. The burden for this provision is 42,819 hours (171,275 
contractor establishments x 15 minutes/60 = 42,819 hours). The 
approximate cost of this provision is $1,603,263.
    Assuming there are 251,300 establishments impacted by the final 
rule, the burden for this provision would be 62,825 hours (251,300 
contractor establishments x 15 minutes/60 = 62,825 hours). The cost for 
this provision would be $2,352,344.

5. Section 60-741.44 Required Contents of the Affirmative Action 
Program

Paragraph (a): Affirmative Action Policy Statement

    Section 60-741.44(a) of the final rule clarifies the contractor's 
duty to make the equal opportunity policy statement accessible to all 
employees. The final rule revises the parenthetical at the end of the 
sentence by replacing the outdated suggestion of ``hav[ing] the notice 
read to a visually disabled person'' as an accommodation with the 
suggestion to provide Braille, large print, or other versions that 
allow persons with disabilities to read the notices themselves. It also 
requires the policy statement to indicate the top United States 
executive, such as the Chief Executive Officer (CEO) or the President 
of the United States Division of a foreign company, who supports the 
contractor's affirmative action program. The NPRM estimated that it 
would take contractors 10 minutes to receive requests for 
accommodation, provide the document in an alternative format, and 
maintain records of compliance. Some commenters expressed concern that 
contractors would have a significant burden making the affirmative 
action policy available in multiple formats to accommodate various 
disabilities.
    Upon further consideration, OFCCP determines that there is no 
additional cost for this provision in the final rule. The 
nondiscrimination requirements of OFCCP's existing regulations require 
contractors to provide reasonable accommodation. See 41 CFR 60-
741.21(f)(1). This modification simply updates the example of a 
possible accommodation that contractors may provide to a visually 
impaired person, and does not impose a new obligation on contractors. 
Similarly, no burden is associated with providing more specificity to 
the existing requirement that the contractor indicate the CEO's 
``attitude on the subject matter.''

Paragraph (b): Review of Personnel Processes

    Section 60-741.44(b) currently requires contractors to periodically 
review personnel processes to ensure that they do not screen out 
individuals with disabilities. The NPRM proposed requiring contractors 
to conduct this review annually and mandated specific steps contractors 
must take during the review, including: (1) Identifying the vacancies 
and training programs for which protected applicants and employees were 
considered; (2) providing a statement of reasons explaining the 
circumstances for rejecting individuals with disabilities for vacancies 
and training programs and a description of considered accommodations; 
and (3) describing the nature and type of accommodations for 
individuals with disabilities who were selected for hire, promotion, or 
training programs. The NPRM did not assign burden for identifying 
vacancies and training programs since these provisions mirrored 
proposed requirements in OFCCP's VEVRAA NPRM, 76 FR 23358 (April 26, 
2011). The NPRM estimated that it would take contractors 30 minutes to 
provide a statement explaining the reasons for rejecting individuals 
with disabilities for vacancies and training programs. Finally, the 
NPRM estimated that it would take 30 minutes for contractors to 
describe accommodations for individuals with disabilities who were 
selected for hire, promotion, or training programs.
    Several commenters noted that proposed Sec.  60-741.44(b) would 
create a significant burden and costs on contractors. Commenters 
asserted that the proposed provision would require contractors to 
create documents related to thousands of employment transactions per 
year. Commenters also asserted that OFCCP's estimate of 30 minutes to 
develop these records was too low. Several commenters provided their 
own estimates that were significantly higher than those proposed by 
OFCCP. In response to these concerns, OFCCP does not adopt the proposal 
as drafted in the NPRM, and the final rule retains the existing 
language in Sec.  60-741.44(b). Therefore, there is no new burden 
associated with this provision.
    The NPRM also proposed requiring contractors to ensure that its use 
of information and communication technology is accessible to applicants 
and employees with disabilities. Some commenters objected to this 
provision, stating that it would be costly and time-consuming for 
contractors to ensure that all of its information and communication 
technology was fully accessible and up-to-date. The final rule 
clarifies the language in this section by stating that contractors must 
ensure that applicants and employees with disabilities have ``equal 
access to its personnel processes, including those implemented through 
information and communication technologies.'' Further, contractors must 
provide ``necessary reasonable accommodation to ensure applicants and 
employees with disabilities receive equal employment opportunity in the 
operation of personnel processes.'' Since contractors already have a 
duty to provide reasonable accommodations for individuals with 
disabilities, there is no new burden for this provision. See 41 CFR 60-
741.21(f).

Paragraph (c): Physical and Mental Qualifications

    The NPRM proposed requiring contractors to annually review all 
physical and mental job qualification standards and for contractors to 
document their annual review. The NPRM also proposed requiring the 
contractor to document those instances in which it believes that an 
individual would constitute a ``direct threat'' as understood under the 
ADA, as defined in these regulations, and to maintain the written 
statement as set forth in the recordkeeping requirement in Sec.  60-
741.80. The NPRM did not assign burden for the proposed provision since 
it mirrored requirements in section 60-300.44(c) of the VEVRAA proposed 
rule, 76 FR 23358 at 23417. Several commenters expressed concern with 
this provision. Commenters noted that annual review of all job 
qualifications and standards could cost some contractors thousands of 
dollars, especially larger contractors that may have thousands of job 
titles. Commenters recommended that OFCCP consider requiring the review 
less frequently. In order to minimize the burden, the final rule 
retains the existing language in 41 CFR 60-741.44 requiring periodic 
review of physical and mental job qualifications to ensure they do not 
screen out individuals with

[[Page 58721]]

disabilities. Therefore, there is no new burden for this provision.

Paragraph (d): Reasonable Accommodation to Physical and Mental 
Limitations

    The NPRM proposed requiring contractors to ensure that its 
electronic or online job application systems are compatible with 
assistive technology commonly used by individuals with disabilities, 
such as screen reading and speech recognition software. OFCCP 
determined that this requirement is more appropriately addressed in 
Sec.  60-741.21(a)(6)(iii) as a part of the fundamental reasonable 
accommodations obligations of contractors. The existing regulations 
make clear that it is ``unlawful for [a] contractor to fail to make 
reasonable accommodation to the known physical or mental limitations of 
an otherwise qualified applicant or employee.'' 41 CFR 60-741.21(f). 
Further, the existing definition of ``reasonable accommodation'' 
includes ``[m]odification or adjustments to a job application process 
that enable a qualified applicant with a disability to be considered 
for the position such applicant desires.'' 41 CFR 60-741.2(v)(1)(i). 
Since Federal contractors have a duty to ensure that individuals with 
disabilities who require assistive technology are able to use their job 
application process, the proposed language does not create any new 
burden on contractors. The proposal simply clarifies how contractors 
can meet their existing obligations. Therefore, there is no new burden 
for this provision.

Paragraph (f): Outreach and Recruitment Efforts

    The NPRM proposed several revisions to Sec.  60-741.44(f). The NPRM 
proposed requiring contractors to list all of their employment 
opportunities, with limited exceptions, with the nearest Employment 
One-Stop Career Center. The NPRM did not estimate any burden for this 
provision since it mirrored an existing VEVRAA requirement. The 
proposed paragraph (f)(1)(ii) required contractors to enter into three 
linkage agreements with various entities to help recruit applicants 
with disabilities. The NPRM estimated that it would take contractors on 
average 3.2 hours to enter into these linkage agreements. The proposed 
paragraph (f)(1)(iv) required contractors to notify subcontractors, 
vendors, and suppliers of the company's affirmative action policies. 
The NPRM estimated that it would take contractors 5 minutes to revise 
notices created under a similar proposed requirement in the VEVRAA NPRM 
to include references to the company's nondiscrimination and 
affirmative action policies for individuals with disabilities. The 
proposed paragraph (f)(3) required contractors to conduct self-
assessments of their outreach and recruitment efforts. The NPRM 
estimated that it would take contractors 30 minutes to conduct an 
assessment of outreach and recruitment in conjunction with correlating 
assessments under EO 11246 and VEVRAA. Finally, the proposed paragraph 
(f)(4) clarified the contractor's recordkeeping obligations with regard 
to these outreach and recruitment efforts.
    Several commenters expressed concern regarding the potential burden 
of the proposed revisions to Sec.  60-741.44(f). Commenters noted that 
submitting job listings to Employment One-Stop Career Centers in the 
manner and format required by the center would require a significant 
expenditure of time. Commenters further noted that it would take much 
longer than OFCCP estimated to develop meaningful relationships with 
recruitment entities through linkage agreements. Further, some larger 
contractors with multiple establishments could be required to enter 
into hundreds of different linkage agreements. Commenters stated that a 
less burdensome approach would be for OFCCP to create a job bank that 
would enable Federal contractors to centrally post all of their job 
listings to promote recruitment of individuals with disabilities. Other 
commenters objected to the burden created by the five-year 
recordkeeping requirements. In response to these concerns, the final 
rule eliminates the proposed requirements to list all job opportunities 
with the nearest Employment One-Stop Career Center and enter into 
linkage agreements. The final rule retains the existing language of 
Sec.  60-741.44(f), which requires that the contractor undertake 
``appropriate outreach and positive recruitment activities,'' and 
provides a number of suggested resources that contractors may utilize 
to carry out this general recruitment obligations. Therefore, there is 
no new burden for these provisions.
    The final rule adopts the requirement for contractors to send 
written notification to subcontractors, vendors, and suppliers of the 
company's affirmative action policy. Section 60-300.44(f)(1)(ii) of the 
VEVRAA final rule also requires contractors to send written 
notification of the company policy related to its affirmative action 
efforts to all subcontractors, including subcontracting vendors and 
suppliers. OFCCP therefore expects that contractors will send a single, 
combined notice, informing subcontractors, vendors and suppliers of 
their VEVRAA and section 503 policies. Accordingly, OFCCP determined 
that there is no additional burden for this provision.
    Paragraph (f)(3) of the NPRM required contractors to annually 
review their outreach and recruitment efforts to determine whether they 
were effective and document its review. Several commenters stated that 
this requirement would be unduly burdensome and would result in little 
benefit to contractors' affirmative action efforts. Commenters also 
stated that OFCCP's estimate of the time required for the review was 
too low. Commenters offered their own estimates that were significantly 
higher than that proposed by OFCCP.
    Section 60-741.44(f)(3) of the final rule adopts this requirement 
as proposed. OFCCP expects that contractors will conduct this 
assessment in conjunction with the correlating assessments required 
under EO 11246 and VEVRAA. Further, OFCCP believes that if a contractor 
has been complying with its recruitment, outreach, data collection, and 
recordkeeping responsibilities throughout the affirmative action 
program year, as well as its general obligation under Sec.  60-
741.40(c) to review and update its affirmative action program on an 
annual basis (which includes its outreach and recruitment efforts, see 
Sec.  60-741.44(f)), it will take an average of 30 additional minutes 
for the contractor to conduct the specific effectiveness assessment of 
its outreach and recruitment efforts, which would include a simple 
comparison of the annual raw data on applicants and hires that 
contractors collect pursuant to Sec.  60-741.44(k) to previous years' 
data, as well as their hiring benchmark, and determining in light of 
these numbers and any other relevant circumstances whether adjustments 
in their outreach efforts is necessary. OFCCP estimates that 1 percent 
of contractors are first-time contractors during an abbreviated 
affirmative action program year and will be unable to complete the 
review. The recurring burden for this provision is 84,781 hours 
(169,562 contractor establishments x 30 minutes/60 = 84,781 hours). The 
estimated cost for this provision is $3,174,438.
    Assuming that 251,300 establishments would be impacted by the final 
rule, the burden for this provision would be 124,394 hours (248,787 
contractor establishments x 30 minutes/60 = 124,394 hours). The cost 
for this provision would be $4,657,641.

[[Page 58722]]

    Section 60-741.44(f)(4) of the final rule requires contractors to 
document all the outreach and recruitment activities they undertake to 
comply with Sec.  60-741.44(f) and retain these documents for a period 
of 3 years. Under the existing regulations, contractors are required to 
establish meaningful outreach and recruitment contacts. Consequently, 
contractors' outreach and recruitment should already be the subject of 
some documentation. This documentation may take several forms. It may 
include, for example, the numbers and types of outreach and recruitment 
events, the targeted groups or types of participants for each event, 
the dates or timeframes, location of the events, and who conducted and 
participated in the outreach and recruitment on behalf of the 
contractor.
    OFCCP estimates that it will take contractors 10 minutes to 
maintain the outreach and recruitment documentation that would 
typically be generated as a result of their obligations pursuant to 
other provisions in the regulations. This does not include any 
additional time to make the software configuration needed to tell the 
contractor's computer system to store data for an additional year, as 
this burden was previously accounted for in the VEVRAA final rule's 
burden analysis of Sec.  60-300.80(b). Therefore, the recurring burden 
for this provision is 28,546 hours (171,275 contractor establishments x 
10 minutes/60 = 28,546 hours). The approximate cost for this provision 
is $1,068,842. Assuming there are 251,300 contractor establishments 
impacted by the final rule, the burden for this provision would be 
41,833 hours (251,300 contractor establishments x 10 minutes/60 = 
41,833 hours). The cost for this provision would be $1,568,229.

Paragraph (g): Internal Dissemination of Affirmative Action Policy

    The NPRM proposed requiring the contractor to take several specific 
actions to disseminate its affirmative action policy, including 
incorporating the affirmative action policy in company policy manuals, 
informing all applicants and employees of the contractor's affirmative 
action obligations, and conducting meetings with management and company 
leadership to ensure they are informed about the contractor's 
obligations. The NPRM also proposed requiring contractors to hold 
meetings with employees at least once a year to discuss the section 503 
affirmative action policy. The NPRM estimated that contractors would 
have a one-time burden of 20 minutes to develop the employee 
orientation presentation on the company's affirmative action 
requirements and an additional burden of 5 minutes to conduct the 
presentation. The NPRM further estimated that it would take contractors 
30 minutes to disseminate the equal employment policy to any entity 
that the contractor has a collective bargaining agreement with and 5 
minutes to maintain records of compliance with Sec.  60-741.44(g).
    OFCCP received several comments asserting that the agency 
underestimated the amount of time it would take to comply with the 
provision. One commenter provided its own estimates from an internal 
survey of companies that estimated compliance times ranging from 5 to 
20 hours. The commenter further asserted that OFCCP failed to consider 
the number of meetings required or coordination with the internal 
communications and web services to disseminate the policy. Finally, 
commenters stated that OFCCP underestimated the costs of this provision 
by failing to account for the cost of staff time to attend the 
meetings. In response to these concerns, the final rule does not 
incorporate the requirement to have contractors conduct meetings with 
management and all other employees at least once a year to discuss the 
section 503 affirmative action policy.
    The final rule adopts the requirement to include the affirmative 
action policy in the contractor's policy manual or otherwise make it 
available to its employees. The existing regulations currently require 
contractors to develop some internal procedure to communicate to 
employees its affirmative action obligation to employ and advance in 
employment individuals with disabilities. See 41 CFR 60-741.44(g)(1). 
The final rule simply clarifies that one of the means by which 
contractors can do that is by including this in the policy manual. The 
final rule also gives contractors the flexibility to disseminate the 
policy by another means, which can include the method they are 
currently using to comply with the law. Therefore, there is no new 
burden related to this provision.
    The remaining elements that were required in the NPRM and/or were 
suggested in the existing rule remain in paragraph (g)(3) of the final 
rule as actions that the contractor is suggested to take, with the 
exception of the recordkeeping provision, which has been eliminated.

Section 60-741.44(h) Audit and Reporting System

    Section 60-741.44(h)(1)(vi) of the final rule requires contractors 
to document the actions taken to comply with the obligations of 
paragraphs (h)(1)(i) through (v) of this section, and retain these 
documents as employment records subject to the recordkeeping 
requirements of Sec.  60-741.80. Seven commenters stated that the 
proposed requirement would impose a burden and require new processes 
for tracking and recordkeeping.
    This section is adopted in the final rule as proposed. Under the 
existing rule, most contractors should document and maintain their 
analysis of the affirmative action program as a normal part of their 
review and assessment process. Compliance officers report that, on 
request, they review or are provided a range of documents related to 
the analysis including, for example, reports, summaries and data. In 
many regards, this provision merely acknowledges and formalizes a 
current contractor practice. OFCCP estimates that it will take 
contractors 10 minutes to document the actions taken to comply with 
Sec.  60-741.44(h) and retain those documents. The recurring burden for 
this provision is 28,546 hours (171,275 contractor establishments x 10 
minutes = 856,375/60 = 28,546 hours). The estimated cost of this 
provision is $1,068,842. Assuming there are 251,300 establishments 
impacted by the final rule, the burden for this provision would be 
41,833 hours (251,300 contractor establishments x 10 minutes/60 = 
41,833 hours). The cost for this provision would be $1,568,229.

Paragraph (i): Responsibility for Implementation

    The NPRM proposed requiring contractors to identify the official 
responsible for affirmative action activities on all internal and 
external communications regarding the contractor's affirmative action 
program. In the current regulation, this disclosure is only suggested. 
Upon further review, OFCCP does not believe that the benefit of this 
suggested change outweighs the potential burden that it would place on 
contractors. Accordingly, the language in the existing regulation that 
contractors should, but are not required to, take this step is 
retained. Therefore, there is no new burden for this provision.

Paragraph (j): Training

    Section 60-741.44(j) of the existing regulation requires training 
for all personnel involved in recruitment,

[[Page 58723]]

hiring and promotion decisions to ensure that the contractor's 
affirmative action program is implemented. The NPRM proposed revising 
this paragraph to outline specific topics that must be covered in the 
training. The NPRM also proposed requiring contractors to make specific 
records and maintain these records, along with all written or 
electronic training materials used. Since this provision mirrored a 
similar proposed requirement in the VEVRAA NPRM, the section 503 NPRM 
estimated that it would take contractors 40 minutes to develop the 
section 503 aspects of the training and 20 minutes to present it.
    Several commenters raised concerns regarding the burden that the 
training requirements would place on contractors. Commenters noted it 
would take hours to create their own training modules to adequately 
cover all of the information required by the proposed rule. Commenters 
suggested that OFCCP provide a training module to alleviate the burden 
of this provision to contractors. Commenters further noted that OFCCP 
did not adequately assess the cost of the provision since the NPRM did 
not include the cost of staff time to participate in the trainings.
    In consideration of these comments, the final rule does not 
incorporate the portion of the proposed rule listing specific training 
items that must be covered by contractors or the specific recordkeeping 
requirement. Accordingly, no new burden is created by this provision in 
the final rule.

Paragraph (k): Data Collection Analysis

    The NPRM proposed requiring contractors to make several 
quantitative measurements and comparisons regarding referrals, 
applicants and hires with disabilities and job fill ratios. The NPRM 
estimated that it would take contractors 1 hour to conduct the required 
data analysis.
    Several commenters expressed concern about the burden associated 
with this proposal. Commenters were particularly concerned about the 
requirement to track and analyze referral data since applicants often 
do not indicate whether they were referred by a state employment 
service delivery system on their applications. Commenters further 
asserted that the newly required data collection and analysis would 
require expensive modifications to existing HRIS. Some commenters noted 
that the requirement would place a substantial burden on small 
businesses or contractors that do not have sophisticated electronic 
databases. One commenter noted that some contractors would be required 
to manually search paper records and compile data using pencil and 
paper. Commenters that were opposed to this requirement further noted 
that the results of the analysis would be questionable in light of the 
concerns regarding reliability of self-identification data.
    The final rule adopts the requirement to collect and maintain data 
regarding applicants and hires with disabilities. The final rule 
eliminates the requirement for contractors to collect, maintain and 
analyze referral data on individuals with disabilities. The final rule 
also does not require contractors to calculate applicant, hiring, and 
job fill ratios in this provision. This eliminates many of the concerns 
commenters raised regarding this paragraph, and also serves to 
significantly decrease the burden on contractors. OFCCP also included a 
substantial initial capital or start-up cost estimate for contractors 
to put systems in place to efficiently track the data.
    OFCCP disagrees with the assertion that a significant number of 
establishments would have to complete this analysis using paper and 
pencil. Feedback received from public comments regarding the concerns 
over costs for modifying human resources information systems further 
indicate that most contractors will have the capability to conduct the 
required calculations electronically. There are spreadsheet databases 
that are commonly used by businesses and have the capability to 
complete the kind of analysis required by Sec.  60-741.44(k) in a 
manner of minutes. Contractors using this basic kind of tracking 
database may need to spend some time entering data by hand. However, 
the amount of time spent should be minimal, as this section only 
requires the calculation of a few workforce-wide comparisons regarding 
applicants and hires with disabilities.
    Further, OFCCP clarifies the only ``new'' items in this section are 
those pertaining to the self-identification applicant and hiring data. 
The burden for collecting and maintaining the applicant data is already 
partially calculated under Sec.  60-741.42(a); the burden associated 
with this section is largely just totaling the raw data on applicants.
    OFCCP estimates that it will, at a minimum, take contractors 25 
minutes to tabulate the applicant data using an electronic database 
that is integrated with the contractors' human resources information 
database where the data is typically stored. In addition, we estimate 
that an additional 10 minutes is required to electronically or 
otherwise store the records (e.g., the report or other written 
documentation generated by the calculations that explain the 
methodology, the data used, and the findings and conclusions; the data 
used to conduct the calculations for subsequent validation of the 
results; and other material used by the contractor for the 
calculations). The recurring burden for this provision is 99,910 hours 
(171,275 contractor establishments x 35 minutes/60 = 99,910 hours). The 
minimum cost for this provision is approximately $3,740,926.
    However, some commenters noted that companies may have to calculate 
this information manually. Commenters stated that these calculations 
could take more than 6 hours. OFCCP declines to adopt the 6 hour 
estimate for manual calculations in large part because the estimate and 
the requirements of this section are significantly scaled back from the 
proposed rule, as the final rule does not require contractors to 
tabulate referral data. Accordingly, starting with the 6 hour estimate 
and scaling it back given the reduced burden of the final rule, OFCCP 
estimates that establishments without web-based application systems 
would take approximately 3 hours to tabulate the information required 
by this section. The burden for these establishments would be 102,765 
hours (34,255 contractor establishments x 3 hours= 102,765 hours). The 
remaining establishments would incur the 35 minute burden, for a total 
of 79,928 hours (137,020 establishments x 35 minutes/60 = 79,928 
hours). The maximum cost for this provision is approximately 
$6,840,550.
    Assuming there are 251,300 contractor establishments impacted by 
the final rule, OFCCP estimates that it will, at a minimum, take 
contractors 25 minutes to tabulate the applicant data using an 
electronic database and an additional 10 minutes to electronically or 
otherwise store the records (e.g., the report or other written 
documentation generated by the calculations that explain the 
methodology, the data used, and the findings and conclusions; the data 
used to conduct the calculations for subsequent validation of the 
results; and other material used by the contractor for the 
calculations). The recurring burden for this provision would be 146,592 
hours (251,300 contractor establishments x 35 minutes/60 = 146,592 
hours). The minimum cost for this provision would be approximately 
$5,488,802.
    The NPRM also proposed requiring contractors to maintain that data 
for 5 years. In response to the comments, the final rule reduces the 
record retention requirement for Sec.  60-741.44(k) to 3

[[Page 58724]]

years. No new software needs are anticipated, however, a software 
switch or configuration may be required to tell the system to retain 
the records for the additional 1 year (or an additional 2 years in the 
case of a smaller contract or contractor). According to an IT 
professional, this is a simple configuration and should take about 15 
minutes to execute. No new burden is added because the change required 
by the recordkeeping provisions of Sec. Sec.  60-741.44(f)(4) of this 
final rule and 60-300.(80)(b) of the VEVRAA final rule include this IT 
change.
    OFCCP also solicited comments regarding adding a reporting 
requirement that would contain the measurements and computations 
required by proposed paragraph (k), and including the percentage of 
applicants, new hires, and total workforce for each EEO-1 category. The 
majority of comments on this proposal asserted that the requirement 
would impose an unnecessary burden. Several commenters stated that 
OFCCP did not provide any support or justification for proposing the 
requirement. As noted in the Section-by-Section analysis, OFCCP weighed 
the utility of this reporting requirement and found that it may create 
unnecessary burden. Therefore, the final rule does not adopt the 
proposed reporting requirement.

6. Section 60-741.45 Utilization Goal

    The NPRM proposed a new Sec.  60-741.46 that would establish a 
single, national utilization goal for individual with disabilities. The 
proposed Sec.  60-741.46 also outlined steps contractors must take to 
determine whether they have met the utilization goal and develop and 
execute ``action-oriented programs'' to correct any identified problems 
related to attaining the goal. Finally, the NPRM sought comment on 
whether there should be a sub-goal for individuals with targeted 
disabilities. The NPRM estimated that it would take 5 minutes of 
recordkeeping time per contractor to document the goal. The NPRM 
further estimated that it would take contractors 1 hour in the first 
year to determine whether the company has met the goal.
    Several commenters stated that establishing a utilization goal for 
individuals with disabilities would be extremely burdensome. Commenters 
noted that the proposed provision would require a substantial amount of 
staff time to research and collect the data for the utilization 
analysis. One commenter noted that the utilization goal would be 
particularly onerous for larger contractors as the requirement could 
result in creating thousands of new goals. The burden would be doubled 
if contractors had to establish a sub-goal.
    The final rule adopts the proposed utilization goal of 7 percent, 
now Sec.  60-741.45 of the final rule. As noted in the preamble, the 
long-term, employment disparities between individuals with and without 
a disability necessitate a quantifiable means by which to assess 
whether contractors are achieving equal employment opportunity. 
Further, OFCCP received significant support for the goal from 
commenters. The disability community and those representing their 
interests, in particular, were strongly in support of this new 
requirement. For these commenters, affirmative action efforts under 
section 503 have been largely meaningless without, among other things, 
measurable goals for the employment of people with disabilities.
    OFCCP disagrees with the assertion that this provision would 
require contractors to create thousands of new goals. The final rule 
establishes one goal that applies to all contractors and all different 
job groups. Section 60-741.45 creates no obligation for contractors to 
independently create goals specific to their organization or any 
particular job group. Contractors will use the standard 7 percent goal 
when conducting their utilization analysis.
    Individuals with disabilities make up 4.83 percent of the 
employed.\41\ The section 503 rule establishes a utilization goal for 
employing individuals with disabilities of 7 percent. To meet the goal, 
OFCCP estimates that Federal contractors would hire an additional 
594,580 individuals with disabilities. This amounts to an additional 
2.37 employees per establishment or 8.75 employees per company.\42\ 
Some of these new hires may require a reasonable accommodation. 
According to research conducted by the Job Accommodation Network (JAN), 
employers in the study reported that 57 percent of accommodations cost 
absolutely nothing. For the remaining 43 percent, the typical cost of 
providing a reasonable accommodation was approximately $500.\43\ Few 
employers, about 4 percent, reported incurring ongoing annual costs 
associated with providing accommodations. We estimate, in light of this 
information, that 219,338 disabled non-protected veterans may need 
accommodations with a total cost of $114,770,291 in the year the target 
is met and $48,524,879 in recurring costs.
---------------------------------------------------------------------------

    \41\ U.S. Census Bureau, 2011 American Community Survey. There 
are a variety of sources for this estimate. The Current Population 
Survey estimates a lower rate, 3.5 percent, and the Survey of Income 
and Program Participation estimates 9.4 percent.
    \42\ This assumes that there are 251,300 contractor 
establishments and 67,919 companies. Under an alternative scenario 
of 171,275 establishments and 46,291 companies, the additional 
number of disabled hires per establishment and company is 3.52 and 
13.02, respectively.
    \43\ Job Accommodation Network, ``Workplace Accommodations: Low 
Cost, High Impact,'' Sept. 1, 2012. Accommodation and Compliance 
Series, http://askjan.org/media/lowcosthighimpact.html (last 
accessed Aug. 9, 2013).
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    A few commenters stated that one hour is not a sufficient amount of 
time to conduct the required utilization analysis. OFCCP also disagrees 
with this assertion. As noted earlier, supply and service contractors 
are already required to conduct a utilization analysis. See 41 CFR 60-
2.15(a). These contractors should have some mechanisms in place to 
conduct this analysis efficiently. Furthermore, OFCCP has estimated a 
substantial amount of initial capital and start-up costs for 
contractors to put procedures in place for the annual analysis to be 
conducted efficiently. OFCCP also increased the estimate of the amount 
of time necessary to conduct the self-identification process, which 
will inform the utilization analysis. Therefore, the final rule 
estimates that, at a minimum, contractors will take 1 hour to conduct 
the utilization analysis. The burden for this provision is 171,275 
hours (171,275 contractor establishments x 1 hour = 171,275 hours). The 
minimum costs for this provision is $6,413,015.
    However, some commenters noted that companies may have to calculate 
this information manually. Utilizing data from the EEO-1 regarding the 
number of establishments with fewer than 100 employees, OFCCP estimates 
that 20 percent of establishments may have to conduct the analysis 
manually. These establishments would take approximately 3 hours to 
tabulate the information required by this section. The burden for these 
establishments would be 102,765 hours (34,255 contractor establishments 
x 3 hours= 102,765). The remaining establishments would incur the 1 
hour burden, for a total of 137,020 hours (137,020 contractor 
establishments x 1 hour = 137,020 hours). The maximum cost for this 
provision is approximately $8,978,223.
    Assuming there are 251,300 contractor establishments impacted by 
the final rule and they all utilized some form of electronic system to 
conduct the analysis, the burden for this provision would be 251,300 
hours (251,300 contractor establishments x 1 hour = 251,300 hours). The 
cost for this

[[Page 58725]]

provision would be $9,409,376. OFCCP estimates that 20 percent of these 
establishments may have to conduct the analysis manually. These 
establishments would take approximately 3 hours to tabulate the 
information required by this section. The burden would be 150,780 hours 
(50,260 contractor establishments x 3 hours= 150,780 hours). The 
remaining establishments would incur the 1 hour burden, for a total of 
201,040 hours (201,040 establishments x 1 hour = 201,040 hours). The 
maximum cost for this provision would be approximately $13,173,126.
    OFCCP further estimates that it will take contractors an additional 
10 minutes to maintain records of the utilization analysis. This simply 
requires filing away any records created while conducting the analysis. 
The recordkeeping burden is 28,546 hours (171,275 contractor 
establishments x 10 minutes/60 = 28,546 hours). The total cost for this 
provision is $1,068,836.
    Assuming there are 251,300 establishments impacted by the final 
rule, the burden for this provision would be 41,833 hours (251,300 
contractor establishments x 10 minutes/60 = 41,833 hours). The cost for 
this provision would be $1,568,229. Section 60-741.45(e) requires 
contractors to make an assessment of whether any impediments to equal 
employment opportunity for individuals with disabilities exist. This 
assessment can be based on reviews currently required under Sec. Sec.  
60-741.44(b) (review of personnel processes), 60-741.44(f) (review of 
outreach and recruitment efforts), and 60-741.44(h) (audit of the 
affirmative action program). A new paragraph (f) entitled ``Action-
oriented programs'' requires contractors to develop action-oriented 
programs when problem areas have been identified by the utilization 
analysis. These action-oriented programs may include the modification 
of personnel processes, alternative or additional outreach and 
recruitment efforts, and/or other actions designed to correct the 
identified problem areas and attain the established goal. The existing 
regulations require contractors to measure the effectiveness of the 
affirmative action program and correct any identified deficiencies. See 
41 CFR 60-741.44(h). Therefore, there is no new burden created by 
paragraphs (f) or (e).

7. Section 60-741.60 Compliance evaluations

    Section 60-741.60 of the final rule allows OFCCP to request that 
contractors make documents available on or off-site during a compliance 
evaluation and establishes new procedures for pre-award compliance 
evaluations under section 503. Since contractors are currently required 
to make documents available to OFCCP during a compliance evaluation, 
there is no additional cost for allowing OFCCP off-site access to 
documents. This provision simply affords OFCCP the opportunity to 
conduct reviews of relevant materials at any appropriate location. The 
newly created pre-award compliance evaluation requires no action by the 
contractor and only places a burden on the Federal contracting agency 
and OFCCP.

8. Section 60-741.80 Recordkeeping

    The NPRM proposed requiring contractors to maintain records created 
pursuant to the proposed Sec. Sec.  60-741.44(f)(4) and 60-741.44(k) 
for five years. Commenters stated this requirement was overly 
burdensome as contractors would be required to maintain a substantial 
amount of new records either physically or electronically for a longer 
period of time than required by the existing regulations.
    Section 60-741.80 of the final rule requires contractors to 
maintain data pursuant to Sec. Sec.  60-741.741(f)(4) (outreach and 
recruiting efforts) and 60-741.44(k) (applicant and hire data) for 3 
years. OFCCP disagrees with the assertion that this requirement would 
create a need to secure substantial electronic or physical storage 
space to keep these records. For example, compliance with Sec.  60-
741.44(f)(4) can include material evidence that the contractor has 
attended recruiting events or other similar activities. Since 
contractors no longer need to maintain referral records, the 
recordkeeping burden of Sec.  60-741.44(k) requirement is substantially 
reduced. The primary record contractors would have to maintain is the 
self-identification forms that the data analysis is based on. As such, 
there should be no need to secure substantial new storage space beyond 
what the contractor already maintains in its normal course of business 
to maintain these forms. There is no additional burden assessed here 
because it is included in the estimates for Sec. Sec.  60-741.44(f)(4) 
and 60-741.44(k). In those sections, we determined that no new software 
needs are anticipated, however, a software switch or configuration may 
be required to instruct the system to retain the records for the 
additional 1 year (or an additional 2 years in the case of a smaller 
contract or contractor).

9. Section 60-741.81 Access to records

    Section 60-741.81 of the final rule requires contractors to specify 
all available records formats and allow OFCCP to select preferred 
record formats from those identified by the contractor during a 
compliance evaluation. Upon request, the contractor must provide OFCCP 
information about all format(s), including specific electronic formats, 
in which the contractor maintains its records and other information.
    A few commenters objected to the requirement to provide records in 
formats OFCCP selects. The final rule clarifies this provision to make 
clear that contractors will not be required to invest time or resources 
creating records in a specific format, or creating a documented 
``list'' of the formats in which they have documents available. Rather, 
contractors merely need to inform OFCCP of the formats in which they 
maintain records and other information, and allow OFCCP to select the 
format(s) in which the records or other information will be provided.

10. Appendix A, Guidelines on a Contractor's Duty To Provide Reasonable 
Accommodation

    Appendix A includes several changes that reflect updated 
terminology and revisions made elsewhere in the regulations. These 
revisions create no new costs for contractors, therefore, there is no 
burden for Appendix A.

11. Appendix B--Developing Reasonable Accommodation Procedures

    The NPRM proposed a new provision at Sec.  60-741.45 that would 
require contractors to establish formal, written reasonable 
accommodation procedures. The proposed provision required including 
various elements in the reasonable accommodation procedures; 
disseminating the procedures to all employees; informing applicants of 
the reasonable accommodation procedures; training for all managers on 
the procedures; and documenting specific information regarding 
reasonable accommodation requests. The NPRM estimated the following 
related to this provision: 30 minutes to develop the reasonable 
accommodation procedures; 5 minutes for first-time contractors to 
designate a responsible official for implementing the procedures; 15 
minutes to disseminate the procedures to employees; 2 hours to develop 
the training on the procedures; and an additional 5 minutes to maintain 
records of compliance with the provision.
    Several commenters stated that the proposed Sec.  60-741.45 was an 
overly

[[Page 58726]]

burdensome requirement. Commenters expressed particular concern about 
the burden of providing written confirmation of reasonable 
accommodation requests and explanations of any denials of reasonable 
accommodation. Some commenters noted that the burden of this 
requirement would be enormous, such that it was difficult to even 
quantify how much time it would take to comply with this provision.
    Upon further review, OFCCP does not believe that the benefit of 
this suggested change outweighs the potential burden that it would 
place on contractors. Therefore, the final rule creates a new Appendix 
B entitled Developing Reasonable Accommodation Procedures that provides 
specific guidance and sets forth recommended elements similar to those 
proposed in the NPRM that contractors may use when voluntarily 
establishing written reasonable accommodation procedures. The final 
rule also adds a new paragraph (vi) to Sec.  60-741.21(a)(6) that 
acknowledges that the development and use of written reasonable 
accommodation procedures is a best practice. However, it does not 
require that contractors develop such procedures. Therefore, no new 
burden is assessed for this provision.

12. Initial Capital or Start-Up Costs

Human Resources Information Systems Modifications
    Several commenters noted that the new data collection requirements 
in the proposed rule would require modifications to existing HRIS. In 
order to estimate the start-up costs for the final rule, OFCCP 
considered what would be required to modify existing HRIS to track the 
number of applicants and hires that self-identify as an individual with 
a disability. Because contractors must already maintain information on 
their employees by race/ethnicity and sex, contractors should have some 
mechanism in place to track the newly required information. Further, 
the VEVRAA final rule requires contractors to make similar revisions to 
their HRIS to accommodate the new VEVRAA data collection requirements. 
OFCCP reasonably anticipates that contractors will make the HRIS 
changes necessitated by this final rule in conjunction with the 
analogous changes needed to comply with the VEVRAA final rule, 
resulting in increased efficiency and reduced burden.
    The minimum costs for modifying HRIS is based on the estimate that 
72 percent of contractors utilize this kind of electronic system.\44\ 
Based on information from IT professionals, OFCCP estimates it would 
take each contractor company on average 18 hours to make the needed 
systems modifications to track applicant and hiring information for 
individuals with disabilities. This includes IT and administrative 
professionals to make the changes. The estimated costs for these 
modifications are based on data from the Bureau of Labor Statistics in 
the publication ``Employer Costs for Employee Compensation'' (September 
2011), which lists total compensation for a professional of $47.21 per 
hour. Therefore, the minimum estimated burden for the capital and 
start-up costs is 599,706 hours (33,317 contractor companies x 18 hours 
= 599,706 hours). We calculate the total minimum estimated start-up 
costs as $28,312,120 (599,706 x $47.21/hour = $28,312,120) or $849 per 
establishment. Assuming all contractor companies utilize HRIS, the 
maximum estimated burden for modifying the systems is 827,928 hours 
(45,996 contractor companies x 18 hours = 827,928 hours). We calculate 
the total costs as $39,086,480 (827,928 hours x $47.21/hour = 
$39,086,480).
---------------------------------------------------------------------------

    \44\ Utilizing EEO-1 data, OFCCP estimates that 72 percent of 
regulated contractor companies have greater than 100 employees and 
will likely use an electronic human resources system.
---------------------------------------------------------------------------

    Assuming there are 251,300 contractor establishments in OFCCP's 
jurisdiction, or 67,919 companies, the minimum estimated burden for the 
capital and start-up costs would be 880,218 hours (48,901 contractor 
companies x 20 hours = 880,218 hours). The total minimum estimated 
start-up costs would be $41,555,092 (978,020 hours x $47.21/hour = 
$41,555,092) or $849 per parent company. Assuming all contractor 
companies utilize HRIS, the maximum burden would be 1,222,542 hours 
(67,919 contractor companies x 18 hours = 1,222,542 hours). We 
calculate the total maximum estimated start-up costs as $57,716,208 
(1,358,380 hours x $47.21/hour = $57,716,208) or $849 per parent 
company.
Operations and Maintenance Costs
    OFCCP estimates that the contractor will have some operations and 
maintenance costs in addition to the burden calculated above.

Section 60-741.42 Invitation to Self Identify

    OFCCP estimates that the contractor will have some operations and 
maintenance cost associated with the invitations to self-identify. The 
contractor must invite all applicants to self-identify at both the pre-
offer and post-offer stage of the employment process. Given the 
increasingly widespread use of electronic applications, any contractor 
that uses such applications to invite self-identification would not 
incur copy costs. However, to account for contractors who may still 
choose to use paper applications, we are including printing and/or 
copying costs. The final rule reduces the numbers of forms to one to 
make the self-identification process less paperwork intensive and to 
reduce costs. We also estimate an average copying cost of $.08 per 
page. Assuming contractors using a paper-based application system, used 
15 applications for an average of 15 listings per establishment, the 
minimum estimated total cost to contractors will be $616,590 (34,255 
contractor establishments x 225 copies x $.08 = $616,590). Assuming 
contractors using a paper-based application system, used 33 
applications for an average of 15 listings per establishment, the 
maximum estimated cost to contractors will be $1,356,498 (34,255 
contractor establishments x 30 x $.08 = $1,356,498).
    Assuming that 50,260 of 251,300 contractor establishments with a 
paper-based application system, used 15 applications for an average of 
15 listings per establishment, the minimum estimated total cost to 
contractors will be $904,680 (50,260 contractor establishments x 225 
copies x $.08 = $904,680). Assuming contractors using a paper-based 
application system, used 33 applications for an average of 15 listings 
per establishment, the maximum estimated cost to contractors will be 
$1,990,296 (50,260 contractor establishments x 495 copies x $.08 = 
$1,990,296).
D. Summary of Benefits
    As a result of this Final Rule, it is estimated that 594,580 
individuals with disabilities could be hired in the first year 
alone.\45\ There are tangible and intangible benefits from investing in 
the recruitment and hiring of individuals with disabilities. Among them 
are employer tax credits, access to a broader talent pool, an expanded 
pool of job applicants, access to new markets by developing a workforce 
that mirrors the general customer base, lower turnover

[[Page 58727]]

based on increased employee loyalty, and lower training costs resulting 
from lower staff turnover.\46\ According to the U.S. Business 
Leadership Network (USBLN), ``corporate CEOs understand that it's cost 
effective to recruit and retain the best talent regardless of 
disability.'' \47\ Broad public policy considerations also exist 
related to the decreased demand for and cost of social services as more 
people move into jobs and pay taxes.
---------------------------------------------------------------------------

    \45\ Individuals with disabilities make up 4.83 percent of the 
employed. The estimate is based on calculating the number of hires 
needed to reach the 7% goal in the first year, the estimated number 
of employees working for covered Federal contractors, and the number 
of contractor establishments covered by OFCCP jurisdiction. To reach 
the goal, 594,580 additional individuals with disabilities would be 
hired. This number also assumes that contractors will not exceed the 
goal.
    \46\ Job Accommodation Network, ``Workplace Accommodations: Low 
Cost, High Impact,'' Sept. 1, 2012. Accommodation and Compliance 
Series, http://askjan.org/media/lowcosthighimpact.html (last 
accessed Aug. 9, 2013).
    \47\ USBLN Disability at Work, and U.S. Chamber of Commerce, 
``Leading Practices on Disability Inclusion,'' http://www.usbln.org/pdf-docs/Leading_Practices_on_Disability_Inclusion.pdf (last 
accessed Aug. 9, 2013). The USBLN and Chamber report shares best 
practices from larger corporations for hiring and providing 
reasonable accommodations.
---------------------------------------------------------------------------

E. Conclusion
    OFCCP concludes in the final regulatory impact analysis that the 
costs of the final rule will range and likely exceed $100 million 
annually. The variations in costs depend on the number of 
establishments impacted by the final rule. Costs will also vary by 
company depending on their existing infrastructure. We estimate that 
the lower end costs would be $349,510,926 assuming that there are 
approximately 171,275 contractor establishments impacted by the final 
rule. The lower end estimate also relies on the assumption that many of 
these establishments have some form of electronic application and human 
resources information systems that would make complying with the rules 
requirements more efficient. The higher end estimate of $659,877,833 
assumes that there are 251,300 establishments impacted by the final 
rule. The higher end further assumes that a portion of those 
contractors, primarily smaller ones with fewer employees, would have to 
expend more personnel time complying with the rules requirements. The 
recurring costs in years contractors do not invite all employees to 
identify as an individual with a disability will range from 
$162,371,816 to $395,258,387. The recurring costs in year contractors 
do invite all employees to identify as an individual with a disability 
will range from $242,345,778 to $480,476,442. Therefore, the rule will 
have a significant economic impact. However, OFCCP believes that the 
final rule will have extensive benefits for individuals with 
disabilities who are prospective and current employees of Federal 
contractors and Federal subcontractors. As such, OFCCP concludes that 
the benefits of the rule justify the costs.

Regulatory Flexibility Act and Executive Order 13272 (Consideration of 
Small Entities)

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., 
requires agencies promulgating rules to consider the impact they are 
likely to have on small entities. More specifically, the RFA requires 
agencies to ``review rules to assess and take appropriate account of 
the potential impact on small businesses, small governmental 
jurisdictions, and small organizations.'' If a rule is expected to have 
a ``significant economic impact on a substantial number of small 
entities,'' the agency must prepare an initial regulatory flexibility 
analysis (IRFA). If, however, a rule is not expected to have a 
significant economic impact on a substantial number of small entities, 
the agency may so certify, and need not perform an IRFA.
    Based on the analysis below, in which OFCCP has estimated the 
impact on small entities that are covered contractors of complying with 
the requirements contained in this rule, OFCCP certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities.
    In making this certification, OFCCP first determined the 
approximate number of small regulated entities that would be subject to 
the rule. OFCCP's review of the FY 2009 EEO-1 data revealed that the 
final rule directly impacts 20,490 Federal contractors with between 50 
and 500 employees.\48\ OFCCP analyzed the number of small entities 
impacted by the rule as compared to the agency's entire universe of 
regulated entities of approximately 45,996 Federal contractors.\49\ 
OFCCP estimates that approximately 44 percent of the total number of 
Federal contractors, or 20,490, are small entities with between 50 and 
500 employees. OFCCP further refined the analysis to compare the 
impacted small entities to just the universe of 21,541 small entities 
in OFCCP's jurisdiction. Under this scenario, approximately 95 percent 
of small entities would be impacted by the requirements of the rule. 
Utilizing these comparisons, the final rule may have an impact on a 
substantial number of small entities.
---------------------------------------------------------------------------

    \48\ The Small Business Administration (SBA) Office of Advocacy 
reports that there are 27.4 million small entities in the United 
States. Since Federal contracts are not limited to specific 
industries, OFCCP assessed the impact of this final rule on small 
entities overall. If OFCCP used this approach, the final rule will 
impact less than .07% of non-employer firms and .34% of employer 
firms nationwide.
    \49\ The EEO-1data base separately identifies contractor 
entities (companies) and the facilities that comprise them. The FPDS 
-NG data base, by contrast, identifies contractor facilities, but 
does not identify the larger entities of which they are a part. 
OFCCP utilized the ratio (approximately 3.7) of parent companies to 
number of establishments from the EEO-1 data to determine that among 
the universe of 171,275 contractor establishments there are 
approximately 45,996 Federal contractor companies.
---------------------------------------------------------------------------

    OFCCP has determined, though, that the impact on entities affected 
by the final rule would not be significant. In order to further inform 
our analysis of the economic impact of this rule on small entities, we 
considered the cost impact of the rule on 2 sizes of entities. We 
estimated the compliance costs of the final rule on Federal contractors 
with 50 to 100 employees and 100 to 500 employees. Contractors with 
less than 50 employees would not be subject to the new requirements 
affirmative action requirements in subpart C of the rule. OFCCP's 
analysis of the impact on small entities compared the estimated cost of 
compliance with the final rule for small entities to the estimated 
annual receipts of these entities as provided by the SBA. If the 
estimated compliance costs are less than 1 percent of the estimated 
revenues, OFCCP considers it appropriate to conclude that there is no 
significant economic impact.\50\
---------------------------------------------------------------------------

    \50\ Id. at 18 (impact could be significant if the costs of 
compliance with the rule ``exceeds 1% of the gross revenues of the 
entities in a particular sector.'')
---------------------------------------------------------------------------

Contractors With 50-100 Employees
    We estimate the first-year cost of this rule to a contractor with 
50 to 100 employees to be approximately $3,318. The first-year cost of 
the rule is the year with the highest compliance cost as the contractor 
is incurring the start-up costs of the rule. This primarily includes 
the time contractors will expend reviewing the new requirements of the 
rule and costs for reasonable accommodations for approximately five 
newly hired individuals with disabilities.\51\
---------------------------------------------------------------------------

    \51\ Individuals with disabilities make up 4.83 percent of the 
employed. The utilization goal under the final rule is 7 percent. To 
close the gap, federal contractors would need to hire an additional 
594,580 disabled people. This amounts to an additional 2.37 
employees per establishment or 8.75 employees per company. Some of 
these new hires may require reasonable accommodation. According to 
research conducted by the Job Accommodation Network (JAN), employers 
in the study reported that a high percentage (57%) of accommodations 
cost absolutely nothing. For the remaining 43%, the typical cost of 
providing a reasonable accommodation was approximately $500.
---------------------------------------------------------------------------

    In order to estimate the cost of this rule on an entity with 50 to 
100 employees, we are applying the same

[[Page 58728]]

type of compliance cost structure previously described in the above 
cost analysis. However, for this small contractor, we assume they would 
have a manual application process and not require costly human 
resources information systems changes. We further assume these 
contractors would expend: 3 hours manually conducting the data analysis 
required by the new 41 CFR 60-741.44(k); 3 hours conducting the 
utilization analysis; 4 hours having a manager review the new 
requirements of the rule; and incur approximately $40 in copying costs 
in order to print out the newly required pre-offer invitation to self-
identify for applicants. This also includes a cost of approximately 
$2,500 for providing reasonable accommodation to at least five newly 
hired individuals with disabilities.\52\
---------------------------------------------------------------------------

    \52\ To close the current gap that exists between the target 
rate of employment for disabled individuals and the actual rate, 
firms would need to hire an additional 594,580 disabled individuals. 
This amounts to an additional 2.37 employees per establishment or 
8.75 employees per company. This assumes 251,300 establishments and 
67,919 companies. Under an alternative scenario of 171,275 
establishments and 46,291 companies, the additional number of 
disabled hires per establishment and company is 3.52 and 13.02, 
respectively. According to research conducted by the Job 
Accommodation Network (JAN), employers in the study reported that a 
high percentage (57%) of accommodations cost absolutely nothing. For 
the remaining 43%, the typical cost of providing a reasonable 
accommodation was approximately $500.
---------------------------------------------------------------------------

    Utilizing data from the SBA Office of Advocacy regarding average 
receipts for firms, OFCCP determined that entities with 50 to 100 
employees average receipts of approximately $14,079,844 per year.\53\ 
The $3,318 costs of compliance with the final rule in the first year 
would be approximately .02 percent of the average value of receipts for 
these entities. Therefore, there is not a significant economic impact 
on contractors with 50 to 100 employees.
---------------------------------------------------------------------------

    \53\ In order to calculate this figure, OFCCP averaged the total 
receipts of firms with 50 to 99 employees provided by the SBA, 
Office of Advocacy. See Firm Size Data, available at www.sba.gov/advo/research/data.html#us. Since the data was issued in 2007, OFCCP 
utilized a compound 2007-2008 Consumer Price Index inflation rate 
equaling 6.8% (1.0285 x 1.0385) to calculate the 2009 average 
receipts of $14,079,844 per year.
---------------------------------------------------------------------------

Contractors With 100-500 Employees
    We estimate the first-year cost of this rule to contractors with 
100 to 500 employees to be approximately $5,197. The first-year cost is 
the year with the highest compliance cost as the contractor is 
incurring the start-up costs of the rule. The start-up for contractors 
with 100 to 500 employees primarily includes modifying any existing 
web-based application and human resources information systems to 
include the pre-offer invitation to self-identify, becoming familiar 
with the new requirements of the rule, and costs for reasonable 
accommodations for approximately five newly hired individuals with 
disabilities.
    In order to estimate the cost of this rule on contractors with 100 
to 500 employees, we are applying the same type of compliance cost 
structure previously described in the above cost analysis. However, for 
this small contractor, we assume they may incur more costs analyzing 
data, establishing benchmarks, and modifying human resources 
information systems. Specifically, we assume these contractors would 
expend: 3 hours manually conducting the data analysis required by the 
new 41 CFR 60-741.44(k); 3 hours conducting the utilization analysis; 4 
hours having a manager review the new requirements of the rule; and 
incur approximately $40 in copying costs in order to print out the 
newly required pre-offer invitation to self-identify for applicants. We 
further assume these contractors will spend approximately $850 
modifying their human resources information systems to accommodate the 
new pre-offer invitation to self-identify. This also includes a cost of 
approximately $2,500 for providing reasonable accommodation to at least 
five newly hired individuals with disabilities.
    Utilizing data from the SBA Office of Advocacy regarding average 
receipts for firms, OFCCP determined that entities with 100 to 500 
employees average receipts of approximately $43,547,170 per year.\54\ 
The $5,197 costs of compliance with the final rule in the first year 
would be approximately .01 percent of the average value of receipts for 
these entities. Therefore, there is not a significant economic impact 
on contractors with 50 to 500 employees.
---------------------------------------------------------------------------

    \54\ In order to calculate this figure, OFCCP averaged the total 
receipts of firms with 100 to 499 employees provided by the SBA, 
Office of Advocacy. See Firm Size Data, available at www.sba.gov/advo/research/data.html#us. Since the data was issued in 2007, OFCCP 
utilized a compound 2007-2008 Consumer Price Index inflation rate 
equaling 6.8% (1.0285 x 1.0385) to calculate the 2009 average 
receipts of $43,547,170 per year.
---------------------------------------------------------------------------

    Notwithstanding our determination that there is not a significant 
impact as a result of this rule, OFCCP considered and implemented a 
number of alternatives in the final rule as compared to what was 
proposed in the NPRM. As noted in the preamble, the final rule provides 
an exception that permits contractors with a total workforce of 100 or 
fewer employees to compare the individuals with disabilities in their 
entire workforce to the 7 percent goal. Further, the final rule does 
not adopt the following proposals: Review personnel processes on an 
annual basis (Sec.  60-741.44(b)); review physical and mental 
qualification standards on an annual basis (Sec.  60-741(c)); establish 
linkage agreements with three disability-related agencies or 
organizations to increase connections between contractors and 
individuals with disabilities seeking employment (Sec.  60-741.44(f)); 
take certain specified actions to internally disseminate its 
affirmative action policy (Sec.  60-741.44(g)); and train personnel on 
specific topics related to the employment of individuals with 
disabilities (Sec.  60-741.44(j)). After consideration of the comments 
and taking into account the expected utility of these provisions in 
light of the burden that contractors would incur to comply with the 
proposals, OFCCP decided not to incorporate the majority of these 
proposals into the final rule, and instead retains the language in the 
existing rule. These changes will substantially decrease the burden on 
small entities.
    The significant benefits to individuals with disabilities, as well 
as to contractors, are discussed extensively in the Section-by-Section 
Analysis of the final rule and in the discussion of the final rule's 
conformity with Executive Order 12866. Although the primary objective 
of the final rule is to strengthen the affirmative action requirements 
of section 503 to employ and advance in employment individuals with 
disabilities, the rule will benefit both individuals with disabilities 
and contractors. As modified, the final rule provides contractors 
mechanisms for collecting data on applicants and employees with 
disabilities and promotes accountability by requiring contractors to 
review the effectiveness of their affirmative action efforts. The 
benefits of proactive recruitment particularly will accrue to 
individuals with disabilities who may face significant barriers in 
obtaining employment. The revisions will also promote access to a well-
trained, job-ready employment pool for contractors.

Paperwork Reduction Act

    Effective Date: This final rule is effective March 24, 2014.
    Compliance Dates: Affected parties do not have to comply with the 
new information collection requirements in Sec. Sec.  60-741.5(a), 
paragraph 7; 60-741.42; 60-741.44(f)(4); 60-741.44(k); 60-741.45; and 
60-741.80(a) (requirement to maintain records under Sec. Sec.  60-
741.44(f)(4) and 60-741.44(k)) until the

[[Page 58729]]

Department publishes a Notice in the Federal Register stating that the 
Office of Management and Budget (OMB) has approved these information 
collection requirements under the Paperwork Reduction Act of 1995 
(PRA), or until this rule otherwise takes effect, whichever date is 
later.
    The Department notes that no person is required to respond to a 
collection of information request unless the collection of information 
has a valid OMB Control Number. The new collections of information 
contained in this rulemaking have been submitted for review to OMB, in 
accordance with the PRA, under Control Number 1250-0004. That review is 
ongoing; consequently, the Control Number has not been activated. OFCCP 
will publish a Notice in the Federal Register announcing the results of 
OMB's review and the date the information collection requirements will 
take effect.
    The information collection requirements in this final rule relate 
to the information required to be maintained by contractors regarding 
their nondiscrimination and affirmative action obligations concerning 
individuals with disabilities and disclosures workers may make to their 
employers.
    Sections 60-741.40 through 60-741.44 contain currently approved 
collections of information. Section 60-741.40 requires contractors with 
50 or more employees and contracts of $50,000 or more to develop an 
affirmative action program for individuals with disabilities. An 
affirmative action program is a written program in which contractors 
annually outline the steps the contractor will take and has already 
taken to ensure equal employment opportunity for individuals with 
disabilities. Section 60-741.41 describes a contractor's responsibility 
to make the affirmative action program available to all employees. 
Section 60-741.42 outlines the contractor's responsibilities and the 
process through which applicants are invited to self-identify as an 
individual with a disability.
    Section 60-741.44 outlines the required contents of the affirmative 
action program. Contractors must develop and include an equal 
opportunity policy statement in the program. Contractors must also 
periodically review their personnel processes to ensure that 
individuals with disabilities are provided equal opportunity and that 
the contractor is engaged in outreach to recruitment sources. Further, 
contractors must develop procedures for disseminating the policy 
internally and externally and establish an audit and reporting system 
to measure the effectiveness of the affirmative action program.
    The currently approved collections of information for these 
sections are OMB Control Number 1250-0004 (VEVRAA). Information 
collection package 1250-0004 covers the nondiscrimination and 
affirmative action requirements of VEVRAA and its implementing 
regulations. The VEVRAA information collection package estimates that 
first-time contractors will take 18 hours to develop and document a 
joint section 503/VEVRAA written affirmative action program. It 
estimates that existing contractors take 7.5 hours to document and 
maintain material evidence of annually updating the affirmative action 
program. These estimates are based on previously approved information 
collection requests that quantified the estimated time to develop and 
maintain a joint section 503/VEVRAA written affirmative action program.
A. Number of Respondents
    OFCCP estimates that 171,275 Federal contractor establishments will 
be impacted by the final rule. However, OFCCP received comments on the 
estimated number of contractor establishments, including recommending 
an establishment count of 285,390 using the Veterans Employment 
Training Services (VETS) annual report. While OFCCP declines to 
exclusively rely on the VETS report number, we present an estimated 
high end for the range of the cost of the rule based on a contractor 
establishment number of 251,300. This number is based on 2010 VETS data 
from their pending information collection request.\55\
---------------------------------------------------------------------------

    \55\ OMB Control Number 1293-0005, Federal Contractor Veterans' 
Employment Report, VETS--100/VETS-100A, http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201104-1293-003 (last accessed 
Aug. 13, 2013).
---------------------------------------------------------------------------

    For the purposes of this information collection request, OFCCP 
averaged the 171,275 and 251,300 contractor establishment figures to 
come up with a total of 211,287 establishments that will have to 
respond to the information collection requirements. All costs and hours 
in the burden analysis of this final rule are calculated using this 
adjusted number of federal contractor establishments. Further, the 
burden for several information collection requirements in the final 
rule are presented in ranges. These estimates are also averaged for 
this information collection request.
B. Information Collections
    OFCCP's new information collection request under Control Number 
1250-0005 for section 503 includes the burden hours and costs for the 
new information collection requirements outlined in the final rule. The 
burden for several information collection requirements in the final 
rule are presented in ranges. These estimates are averaged for the 
purposes of this information collection request.

New Standard Form--Voluntary Self-Identification of Disability

    This information collection package requests approval of a new 
standard form entitled ``Voluntary Self-Identification of Disability.'' 
Pursuant to Sec.  60-741.42, contractors will use this standard form to 
invite applicants, hires and employees, to identify as an individual 
with a disability pre-offer, post-offer, and through an invitation to 
all employees.
    Section 60-741.42(a) requires contractors to extend a pre-offer 
invitation to self-identify as an ``individual with a disability.'' 
OFCCP estimates that contractors working at the company level will take 
1.5 hours to review and retrieve existing sample invitations to self-
identify, adopt the sample ``as is'' or make revisions to their 
existing form, save the invitation to self-identify and incorporate the 
document in the contractor's application form.\56\ The burden for this 
provision is 85,656 hours (57,104 contractor companies x 1.5 hours = 
85,656 hours).
---------------------------------------------------------------------------

    \56\ OFCCP utilized the same ratio (approximately 3.7) of parent 
companies to number of establishments from the EEO-1 data to 
determine that among the universe of 251,300 establishments there 
are approximately 57,104 Federal contractor companies.
---------------------------------------------------------------------------

    Applicants for available positions with covered Federal contractors 
will have a minimal burden complying with Sec.  60-741.42(a) in the 
course of completing their application for employment with the 
contractor. Section 60-741.42(a), on pre-offer self-identification, 
requires contractors to invite all applicants to self-identify whether 
or not they are a protected veteran. OFCCP estimates that there will be 
an average of 24 applicants per job vacancy for on average 15 vacancies 
per year. OFCCP further estimates that it will take applicants 
approximately 5 minutes to complete the form. The burden for this 
provision is 6,388,610 hours (211,287 contractor establishments x 15 
listings x 24 applicants x 5 minutes/60 = 6,388,610 hours). This is a 
third-party disclosure.
    OFCCP estimates that it will take contractors 1.5 hours to conduct 
the

[[Page 58730]]

invitation to self-identify survey. This includes the time needed to 
set up procedures to conduct the invitation, distribute communications, 
and collect and track self-identification forms. OFCCP believes this 
process will become much more streamlined over time and will likely 
require significantly less than 1.5 hours in subsequent years. The 
estimated burden for this provision is 316,931 hours (211,287 
contractor establishments x 90 minutes/60 = 316,930 hours).
    Contractor employees will have to spend some time reviewing and/or 
completing the survey. There are approximately 27,400,000 Federal 
contractor employees. OFCCP estimates that employees will take 5 
minutes to complete the self-identification form. The burden for this 
provision is 2,283,333 hours (27,400,000 employees x 5 minutes/60 = 
2,283,333 hours). Utilizing Bureau of Labor Statistics data in the 
publication ``Employer Costs for Employee Compensation'' (September 
2011), which lists an average total compensation for all civilian 
workers as $30.11 per hour, the cost of this provision would be 
$68,751,157.
    OFCCP further estimates that it will take contractors 15 minutes to 
maintain self-identification forms. This time includes either manually 
storing the forms in a filing cabinet or saving them to an electronic 
database. The burden for this provision is 52,822 hours (211,287 
contractor establishments x 15 minutes/60 = 52,822 hours).

Section 60-741.44 Required Contents of the Affirmative Action Program

    OMB Control Number 1250-0004 contains the burden estimates for 
documenting and maintaining material evidence of annually updating a 
joint section 503 and VEVRAA affirmative action program. Therefore, 
there is no additional burden for this provision in this information 
collection request. OFCCP separately identified below, in Sec.  60-
741.44, provisions that are not included in burden estimates currently 
approved by 1250-0004.

 Section 60-741.44(f) External Dissemination of Policy, 
Outreach and Positive Recruitment

    Section 60-741.44(f)(1)(ii) requires contractors to send written 
notification of the company's affirmative action program policies to 
subcontractors, vendors, and suppliers. Section 60-300.44(f)(1)(ii) of 
the VEVRAA final rule also requires contractors to send written 
notification of the company policy related to its affirmative action 
efforts to all subcontractors, including subcontracting vendors and 
suppliers. OFCCP therefore expects that contractors will send a single, 
combined notice, informing subcontractors, vendors and suppliers of 
their VEVRAA and section 503 policies. Accordingly, OFCCP estimates 
that there is no additional burden for this provision.
    Section 60-741.44(f)(4) requires a contractor to document all 
activities it undertakes to comply with the obligations of this 
paragraph, and retain these documents for a period of 3 years. OFCCP 
estimates that it will take contractors 10 minutes to maintain the 
outreach and recruitment documentation that would typically be 
generated as a result of their obligations pursuant to other provisions 
in the regulations. This does not include any additional time to make 
the software configuration needed to tell the contractor's computer 
system to store data for an additional year, as this burden was 
previously accounted for in the VEVRAA final rule's burden analysis of 
Sec.  60-300.80(b). Therefore, the recurring burden for this provision 
is 35,215 hours (211,287 contractor establishments x 10 minutes/60 = 
35,215 hours).

 Section 60-741.44(h) Audit and Reporting System

    Section 60-741.44(h)(1)(vi) requires contractors to document the 
actions taken to meet the requirements of 60-741.44(h), as mandated in 
the current regulations. OFCCP estimates that it will take contractors 
10 minutes to document compliance with this existing provision. 
Documentation may include, as an example, the standard operating 
procedure of the system including roles and responsibilities, and audit 
and reporting timeframes and lifecycles. Because contractors are 
currently required to have an audit and reporting system, it is 
expected that some documentation of the process and operation of the 
system audit already exists. The annual recordkeeping burden of this 
provision is 35,215 (211,287 contractor establishments x 10 minutes = 
856,375/60 = 35,215 hours).

 Section 60-741.44(k) Data Collection and Analysis

    Section 60-741.44(k) requires contractors to collect and analyze 
certain categories of data. Based on feedback received from public 
comments expressing concerns about the costs of modifying human 
resources information systems, OFCCP believes that most contractors 
will have the capability to conduct the required calculations 
electronically. However, some companies may have to calculate this 
information manually. Therefore, OFCCP estimates that the average time 
to conduct the analysis and maintain the relevant documentation would 
be 1 hour 25 minutes. Relevant documentation could include the report 
or other written documentation generated by the calculations that 
explain the methodology, the data used, and the findings and 
conclusions; the data used to conduct the calculations for subsequent 
validation of the results; and other material used by the contractor 
for the calculations. The recurring burden for this provision is 
299,233 hours (251,300 contractor establishments x 85 minutes/60 = 
299,233 hours).
    No new software needs are anticipated for compliance with Sec.  60-
741.44(k), however, a software switch or configuration may be required 
to tell the system to retain the records for the additional 1or 2 
years, as appropriate. The estimated time needed for making this switch 
is included with the burden estimate for Sec.  60-71.44(f)(4).

Section 60-741.45 Utilization Goal

    Section 60-741.45 of the final rule requires contractors to conduct 
a utilization analysis to evaluate the representation of individuals 
with disabilities in each job group within the contractor's workforce 
with the utilization goal established in paragraph (a) of this section. 
OFCCP estimates that contractors will take 1 hour to conduct the 
utilization analysis. The burden for this provision is 211,287 hours 
(211,287 contractor establishments x 1 hour = 211,287 hours).
    OFCCP further estimates that it will take contractors an additional 
10 minutes to maintain records of the utilization analysis. The 
recordkeeping burden is 35,215 hours (211,287 contractor establishments 
x 10 minutes/60 = 35,215 hours).

Section 60-741.81 Access to Records

    Section 60-741.81 of the final rule requires contractors who are 
the subject of a compliance evaluation or complaint investigation to 
specify all available record formats and allow OFCCP to select 
preferred record formats from those identified by the contractor during 
a compliance evaluation. Pursuant to the regulations implementing the 
PRA at 5 CFR 1320.4(a)(2), this information collection is excluded from 
the PRA requirements because it is related to an ``administrative 
action, investigation, or audit involving an agency against specific 
individuals or entities.''
C. Summary of Costs
    The estimated cost to contractors is based on Bureau of Labor 
Statistics data in the publication ``Employer Costs for

[[Page 58731]]

Employee Compensation'' (September 2011), which lists total 
compensation for management, professional, and related occupations as 
$50.11 per hour and administrative support as $23.72 per hour. OFCCP 
estimates that 52 percent of the burden hours will be management, 
professional, and related occupations and 48 percent will be 
administrative support.

  Table 1--Total Burden for Sec.  Sec.   60-741.42; 60-741.44; and 60-
                                 741.45
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Recordkeeping Burden Hours.................................      633,861
Reporting Burden Hours.....................................            0
Third Party Disclosure Burden Hours........................    9,077,352
                                                            ------------
  Total Burden Hours.......................................    9,711,213
------------------------------------------------------------------------


       Table 2--Summary of Burden Hours and Costs for Contractors
------------------------------------------------------------------------
                                              Burden
                PRA burden                     hours          Total
------------------------------------------------------------------------
741.42 (Survey)...........................     316,931    $11,866,765.33
741.42 (Survey Employee Burden)...........   2,283,333     68,751,166.67
741.42 (Modifying Application System).....      85,656      2,342,234.35
741.42 (Recordkeeping)....................      52,822      1,977,794.22
741.44(f)(4) (Recordkeeping Outreach            52,822      1,977,794.22
 Activities)..............................
741.44(h) (Recordkeeping Affirmative            35,215      1,318,529.48
 Action Program Audit)....................
741.44(k) (Data Collection and Analysis)..     299,323     11,207,500.59
741.45 (Utilization Analysis).............     211,287      7,911,176.88
741.45 (Utilization Analysis                    35,215      1,318,529.48
 Recordkeeping)...........................
                                           -----------------------------
    Total.................................   3,372,603    108,671,491.22
------------------------------------------------------------------------


                            Table 3--Summary of Non-Contractor Burden Hours and Costs
----------------------------------------------------------------------------------------------------------------
                             Existing requirement                                 Burden hours     Burden costs
----------------------------------------------------------------------------------------------------------------
Section 60-741.42 (Self-Identification).......................................       6,338,610     $190,855,547
----------------------------------------------------------------------------------------------------------------

    The total estimated cost for applicants to fill out the self-
identification form is based on Bureau of Labor Statistics data in the 
publication ``Employer Costs for Employee Compensation'' (September 
2011), which lists an average total compensation for all civilian 
workers as $30.11.
D. Initial Capital or Start-Up Costs
Human Resources Information Systems
    OFCCP estimates on average it will take each contractor, working at 
the company level, on average 18 hours to have a professional make the 
needed systems modifications to track applicant and hiring information 
for individuals with disabilities. This includes IT and administrative 
professionals to make any necessary changes. The estimated costs for 
these modifications are based on data from the Bureau of Labor 
Statistics in the publication ``Employer Costs for Employee 
Compensation'' (September 2011), which lists total compensation for a 
professional of $47.21 per hour. The cost for these modifications is 
$48,525,837 (57,104 contractor companies x $47.21 = $48,525,837).
5 CFR 1320.3(b)(1)(i)--Reviewing Instructions
    Several commenters noted that the proposed rule did not quantify 
the burden of reading and understanding the section 503 revisions on 
contractors. OFCCP acknowledges that 5 CFR 1320.3(b)(1)(i) requires 
agencies to include in the burden analysis for new information 
collection requirements the estimated time it takes for contractors to 
review and understand the instructions for compliance. In order to 
minimize the burden, OFCCP will publish several compliance assistance 
materials including factsheets and ``Frequently Asked Questions.'' 
OFCCP will also host webinars for the contractor community that will 
describe the key provisions in the final rule.
    OFCCP estimates it will take, on average, 2.5 hours to have a 
management professional at each establishment either read compliance 
assistance materials provided by OFCCP or participate in an OFCCP 
webinar to learn about the new requirements of the final rule. The 
estimated cost of this burden is based on data from the Bureau of Labor 
Statistics in the publication ``Employer Costs for Employee 
Compensation'' (September 2011), which lists total compensation for a 
management professional at $50.11. Therefore, the estimated burden for 
the capital and start-up costs is 528,217 hours (211,287 contractor 
establishments x 2.5 hours = 528,217 hours). We calculate the total 
estimated cost for rule familiarization as $26,468,979 (528,217 hours x 
$50.11/hour = $26,468,979).
Operations and Maintenance Costs
    OFCCP estimates that the contractor will have some operations and 
maintenance costs in addition to the burden calculated above.

Section 60-741.42 Invitation to Self Identify

    OFCCP estimates that the contractor will have some operations and 
maintenance cost associated with the invitations to self-identify. The 
contractor must invite all applicants to self-identify at both the pre-
offer and post-offer stage of the employment process. Given the 
increasingly widespread use of electronic applications, any contractor 
that uses such applications would not incur copy costs. However, to 
account for contractors who may still choose to use paper applications, 
we are including printing and/or copying costs. Therefore, we estimate 
a single one page form for both the pre- and post-offer invitation. 
Assuming contractors using a paper-based application system, used 24 
applications for an average of 15 listings per establishment, the 
minimum estimated total cost to contractors will be $1,217,002 (42,257 
establishments x 360 copies x $.08 = $1,217,002).
    These paperwork burden estimates are summarized as follows:
    Type of Review: New collection.

[[Page 58732]]

    Agency: Office of Federal Contract Compliance Programs, Department 
of Labor.
    Title: Section 503 of the Rehabilitation Act of 1973, as amended
    OMB ICR Reference Number: 1250-0005
    Affected Public: Business or other for-profit; individuals.
    Estimated Number of Annual Responses: 9,711,213.
    Frequency of Response: On occasion.
    Estimated Total Annual Burden Hours:
    Estimated Total Initial and Other Costs: $375,738,856.
    The estimated $375,738,856 is the total of the PRA costs resulting 
from the new requirements of this final rule.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is a major rule as defined by Section 804 of the Small 
Business Regulatory Enforcement Fairness Act of 1996. This rule will 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of the United States-based companies to compete with 
foreign-based companies in domestic and export markets.

Unfunded Mandates Reform Act of 1995

    For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1532, this final rule includes a Federal mandate that may result in 
excess of $100 million in expenditures in the private sector in any one 
year. Accordingly, in compliance with 2 U.S.C. 1532, OFCCP provides the 
following written statement. All references to other sections of this 
final rule are incorporated by reference pursuant to 2 U.S.C. 1532(c).
    (1) The final rule is authorized by the section 503 of the 
Rehabilitation Act.
    (2) A qualitative and quantitative assessment of the anticipated 
costs and benefits of this final rule, including the costs and benefits 
to the private sector, are set forth in the Regulatory Procedures 
section of the final rule (specifically the sections describing 
Executive Orders 12866 and 13563, the Regulatory Flexibility Act, and 
the Paperwork Reduction Act) and the Section-by-Section Analysis in the 
preamble to the final rule. OFCCP anticipates no effect of the final 
rule on health, safety, and the natural environment not otherwise 
discussed in the sections set forth above.
    (3) Estimates of future compliance costs are set forth in the 
Regulatory Procedures section of the final rule (specifically the 
sections describing Executive Orders 12866 and 13563, the Regulatory 
Flexibility Act, and the Paperwork Reduction Act). OFCCP anticipates 
none of the disproportionate budgetary effects of the final rule set 
forth in 2 U.S.C. 1532(a)(3)(B).
    (4) To the extent feasible and relevant, OFCCP has estimated the 
effect of the final rule on the national economy in the Regulatory 
Procedures section of the final rule (specifically the sections 
describing Executive Orders 12866 and 13563, the Regulatory Flexibility 
Act, and the Paperwork Reduction Act).
    (5) The provisions of 2 U.S.C. 1532(a)(5) do not apply to this 
final rule.
    Finally, OFCCP identified, considered, and implemented a reasonable 
number of regulatory alternatives that were the least burdensome 
alternative. In those cases where OFCCP did not select the least 
burdensome alternative, it has provided an explanation of the reasons 
these suggestions were not adopted in the corresponding section of the 
Section-by-Section Analysis in the preamble to the final rule and/or 
the Regulatory Procedures section of the final rule (specifically the 
sections describing Executive Orders 12866 and 13563, the Regulatory 
Flexibility Act, and the Paperwork Reduction Act).

Executive Order 13132 (Federalism)

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

Executive Order 13175 (Consultation and Coordination With Indian Tribal 
Governments)

    This final rule does not have tribal implications under Executive 
Order 13175 that requires a tribal summary impact statement. The final 
rule does not have substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal government and Indian 
tribes or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.

Effects on Families

    The undersigned hereby certifies that the final rule would not 
adversely affect the well-being of families, as discussed under section 
654 of the Treasury and General Government Appropriations Act, 1999.

Executive Order 13045 (Protection of Children)

    This final rule would have no environmental health risk or safety 
risk that may disproportionately affect children.

Environmental Impact Assessment

    A review of this final rule in accordance with the requirements of 
the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et 
seq.; the regulations of the Council on Environmental Quality, 40 CFR 
part 1500 et seq.; and DOL NEPA procedures, 29 CFR part 11, indicates 
the final rule would not have a significant impact on the quality of 
the human environment. There is, thus, no corresponding environmental 
assessment or an environmental impact statement.

Executive Order 13211 (Energy Supply)

    This final rule is not subject to Executive Order 13211. It will 
not have a significant adverse effect on the supply, distribution, or 
use of energy.

Executive Order 12630 (Constitutionally Protected Property Rights)

    This final rule is not subject to Executive Order 12630 because it 
does not involve implementation of a policy that has takings 
implications or that could impose limitations on private property use.

Executive Order 12988 (Civil Justice Reform Analysis)

    This final rule was drafted and reviewed in accordance with 
Executive Order 12988 and will not unduly burden the Federal court 
system. The final rule was: (1) Reviewed to eliminate drafting errors 
and ambiguities; (2) written to minimize litigation; and (3) written to 
provide a clear legal standard for affected conduct and to promote 
burden reduction.

List of Subjects in 41 CFR Part 60-741

    Administrative practice and procedure, Civil rights, Employment, 
Equal employment opportunity, Government contracts, Government 
procurement, Individuals with disabilities, Investigations, and 
Reporting and recordkeeping requirements.

Patricia A. Shiu
Director, Office of Federal Contract Compliance Programs.

    Accordingly, under authority of 29 U.S.C. 793, Title 41 of the Code 
of

[[Page 58733]]

Federal Regulations, Chapter 60, part 60-741 is revised to read as 
follows:

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

Subpart A--Preliminary Matters, Equal Opportunity Clause
Sec.
60-741.1 Purpose, applicability and construction.
60-741.2 Definitions.
60-741.3 Exceptions to the definitions of ``disability'' and 
``qualified individual.''
60-741.4 Coverage and waivers.
60-741.5 Equal opportunity clause.
Subpart B--Discrimination Prohibited
60-741.20 Covered employment activities.
60-741.21 Prohibitions.
60-741.22 Direct threat defense.
60-741.23 Medical examinations and inquiries.
60-741.24 Drugs and alcohol.
60-741.25 Health insurance, life insurance and other benefit plans.
Subpart C--Affirmative Action Program
60-741.40 General purpose and applicability of the affirmative 
action program requirement.
60-741.41 Availability of affirmative action program.
60-741.42 Invitation to self-identify.
60-741.43 Affirmative action policy.
60-741.44 Required contents of affirmative action programs.
60-741.45 Utilization goals.
60-741.46 Voluntary affirmative action programs for employees with 
disabilities.
60-741.47 Sheltered workshops.
Subpart D--General Enforcement and Complaint Procedures
60-741.60 Compliance evaluations.
60-741.61 Complaint procedures.
60-741.62 Conciliation agreements.
60-741.63 Violations of conciliation agreements.
60-741.64 Show cause notices.
60-741.65 Enforcement proceedings.
60-741.66 Sanctions and penalties.
60-741.67 Notification of agencies.
60-741.68 Reinstatement of ineligible contractors.
60-741.69 Intimidation and interference.
60-741.70 Disputed matters related to compliance with the act.
Subpart E--Ancillary Matters
60-741.80 Recordkeeping.
60-741.81 Access to records.
60-741.82 Labor organizations and recruiting and training agencies.
60-741.83 Rulings and interpretations.

Appendix A to Part 60-741--Guidelines on a Contractor's Duty To Provide 
Reasonable Accommodation

Appendix B to Part 60-741--Developing Reasonable Accommodation 
Procedures

    Authority:  29 U.S.C. 705 and 793; E.O. 11758 (3 CFR, 1971-1975 
Comp., p. 841).

Subpart A--Preliminary Matters, Equal Opportunity Clause


Sec.  60-741.1  Purpose, applicability, and construction.

    (a) Purpose. The purpose of this part is to set forth the standards 
for compliance with section 503 of the Rehabilitation Act of 1973, as 
amended (29 U.S.C. 793), which prohibits discrimination against 
individuals with disabilities and requires Government contractors and 
subcontractors to take affirmative action to employ and advance in 
employment qualified individuals with disabilities.
    (b) Applicability. This part applies to all Government contracts 
and subcontracts in excess of $10,000 for the purchase, sale or use of 
personal property or nonpersonal services (including construction): 
Provided, That subpart C of this part applies only as described in 
Sec.  60-741.40(a). Compliance by the contractor with the provisions of 
this part will not necessarily determine its compliance with other 
statutes, and compliance with other statutes will not necessarily 
determine its compliance with this part: Provided, That compliance 
shall also satisfy the employment provisions of the Department of 
Labor's regulations implementing section 504 of the Rehabilitation Act 
of 1973 (see 29 CFR 32.2(b)) when the contractor is also subject to 
those requirements.
    (c) Construction--(1) In general. Except as otherwise provided in 
this part, this part does not apply a lesser standard than the 
standards applied under title I of the Americans with Disabilities Act 
(ADA) of 1990, as amended, (42 U.S.C. 12101 et seq.) or the regulations 
issued by the Equal Employment Opportunity Commission pursuant to that 
title (29 CFR part 1630). The Interpretive Guidance on Title I of the 
Americans with Disabilities Act set out as an appendix to 29 CFR part 
1630 issued pursuant to that title may be relied upon for guidance in 
interpreting the parallel non-discrimination provisions of this part.
    (2) Benefits under State worker's compensation laws. Nothing in 
this part alters the standards for determining eligibility for benefits 
under State worker's compensation laws or under State and Federal 
disability benefit programs.
    (3) Relationship to other laws. This part does not invalidate or 
limit the remedies, rights, and procedures under any Federal law or the 
law of any State or political subdivision that provides greater or 
equal protection for the rights of individuals with disabilities as 
compared to the protection afforded by this part. It may be a defense 
to a charge of violation of this part that a challenged action is 
required or necessitated by another Federal law or regulation, or that 
another Federal law or regulation prohibits an action (including the 
provision of a particular reasonable accommodation) that would 
otherwise be required by this part.


Sec.  60-741.2  Definitions.

    For the purpose of this part:
    (a) Act means the Rehabilitation Act of 1973, as amended, 29 U.S.C. 
706 and 793.
    (b) Compliance evaluation means any one or combination of actions 
OFCCP may take to examine a Federal contractor's or subcontractor's 
compliance with one or more of the requirements of section 503 of the 
Rehabilitation Act of 1973.
    (c) Contract means any Government contract or subcontract.
    (d) Contractor means, unless otherwise indicated, a prime 
contractor or subcontractor holding a contract in excess of $10,000.
    (e) Direct threat means a significant risk of substantial harm to 
the health or safety of the individual or others that cannot be 
eliminated or reduced by reasonable accommodation. The determination 
that an individual with a disability poses a direct threat shall be 
based on an individualized assessment of the individual's present 
ability to perform safely the essential functions of the job. This 
assessment shall be based on a reasonable medical judgment that relies 
on the most current medical knowledge and/or on the best available 
objective evidence. In determining whether an individual would pose a 
direct threat, the factors to be considered include:
    (1) The duration of the risk;
    (2) The nature and severity of the potential harm;
    (3) The likelihood that the potential harm will occur; and
    (4) The imminence of the potential harm.
    (f) Director means the Director, Office of Federal Contract 
Compliance Programs of the United States Department of Labor, or his or 
her designee.
    (g) Disability--(1) The term disability means, with respect to an 
individual:

[[Page 58734]]

    (i) A physical or mental impairment that substantially limits one 
or more major life activities of such individual;
    (ii) A record of such an impairment; or
    (iii) Being regarded as having such an impairment (as defined in 
paragraph (v) of this section).
    (2) As used in this part, the definition of ``disability'' must be 
construed in favor of broad coverage of individuals, to the maximum 
extent permitted by law. The question of whether an individual meets 
the definition under this part should not demand extensive analysis.
    (3) An impairment that substantially limits one major life activity 
need not limit other major life activities in order to be considered a 
disability.
    (4) An impairment that is episodic or in remission is a disability 
if it would substantially limit a major life activity when active.
    (5) See paragraphs (m), (o), (t), (v), and (z) of this section, 
respectively, for definitions of ``major life activities,'' ``physical 
or mental impairment,'' ``record of such an impairment,'' ``regarded as 
having such an impairment,'' and ``substantially limits.''
    (6) See Sec.  60-741.3 for exceptions to the definition of 
``disability.''
    (h) Equal opportunity clause means the contract provisions set 
forth in Sec.  60-741.5, ``Equal opportunity clause.''
    (i) Essential functions--(1) In general. The term essential 
functions means fundamental job duties of the employment position the 
individual with a disability holds or desires. The term essential 
functions does not include the marginal functions of the position.
    (2) A job function may be considered essential for any of several 
reasons, including but not limited to the following:
    (i) The function may be essential because the reason the position 
exists is to perform that function;
    (ii) The function may be essential because of the limited number of 
employees available among whom the performance of that job function can 
be distributed; and/or
    (iii) The function may be highly specialized so that the incumbent 
in the position is hired for his or her expertise or ability to perform 
the particular function.
    (3) Evidence of whether a particular function is essential 
includes, but is not limited to:
    (i) The contractor's judgment as to which functions are essential;
    (ii) Written job descriptions prepared before advertising or 
interviewing applicants for the job;
    (iii) The amount of time spent on the job performing the function;
    (iv) The consequences of not requiring the incumbent to perform the 
function;
    (v) The terms of a collective bargaining agreement;
    (vi) The work experience of past incumbents in the job; and/or
    (vii) The current work experience of incumbents in similar jobs.
    (j) Government means the Government of the United States of 
America.
    (k) Government contract means any agreement or modification thereof 
between any contracting agency and any person for the purchase, sale or 
use of personal property or nonpersonal services (including 
construction). The term Government contract does not include agreements 
in which the parties stand in the relationship of employer and 
employee, and federally assisted contracts.
    (1) Construction, as used in paragraphs (k) and (x)(1) of this 
section, means the construction, rehabilitation, alteration, 
conversion, extension, demolition, or repair of buildings, highways, or 
other changes or improvements to real property, including facilities 
providing utility services. The term also includes the supervision, 
inspection, and other on-site functions incidental to the actual 
construction.
    (2) Contracting agency means any department, agency, establishment, 
or instrumentality of the United States, including any wholly owned 
Government corporation, which enters into contracts.
    (3) Modification means any alteration in the terms and conditions 
of a contract, including supplemental agreements, amendments, and 
extensions.
    (4) Nonpersonal services, as used in paragraphs (k) and (x)(1) of 
this section, includes, but is not limited to, the following: utility, 
construction, transportation, research, insurance, and fund depository.
    (5) Person, as used in paragraphs (k), (p), (u), (x), and (y) of 
this section, means any natural person, corporation, partnership or 
joint venture, unincorporated association, State or local government, 
and any agency, instrumentality, or subdivision of such a government.
    (6) Personal property, as used in paragraphs (k) and (x)(1) of this 
section, includes supplies and contracts for the use of real property 
(such as lease arrangements), unless the contract for the use of real 
property itself constitutes real property (such as easements).
    (l) Individual with a disability--See definition of ``disability'' 
in paragraph (g) of this section.
    (m) Major life activities --(1) In general. Major life activities 
include, but are not limited to, caring for oneself, performing manual 
tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, 
reaching, lifting, bending, speaking, breathing, learning, reading, 
concentrating, thinking, communicating, interacting with others, and 
working.
    (2) Major bodily functions. For purposes of paragraph (m)(1) of 
this section, a major life activity also includes the operation of a 
major bodily function, including, but not limited to, functions of the 
immune system, special sense organs and skin, normal cell growth, 
digestive, genitourinary, bowel, bladder, neurological, brain, 
respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, 
musculoskeletal, and reproductive functions. The operation of a major 
bodily function includes the operation of an individual organ within a 
body system.
    (3) In determining other examples of major life activities, the 
term ``major'' shall not be interpreted strictly to create a demanding 
standard for disability. Whether an activity is a ``major life 
activity'' is not determined by reference to whether it is of ``central 
importance to daily life.''
    (n) Mitigating measures--(1) In general. The term mitigating 
measures includes, but is not limited to:
    (i) Medication, medical supplies, equipment, or appliances, low-
vision devices (which do not include ordinary eyeglasses or contact 
lenses), prosthetics including limbs and devices, hearing aids and 
cochlear implants or other implantable hearing devices, mobility 
devices, or oxygen therapy equipment and supplies;
    (ii) Use of assistive technology;
    (iii) Reasonable accommodations or ``auxiliary aids or services'' 
(as defined by 42 U.S.C. 12103(1));
    (iv) Learned behavioral or adaptive neurological modifications; or
    (v) Psychotherapy, behavioral therapy, or physical therapy.
    (2) Ordinary eyeglasses or contact lenses. The term ordinary 
eyeglasses or contact lenses means lenses that are intended to fully 
correct visual acuity or to eliminate refractive error.
    (3) Low-vision devices. The term low-vision devices means devices 
that magnify, enhance, or otherwise augment a visual image, but not 
including ordinary eyeglasses or contact lenses.
    (4) Auxiliary aids and services. The term auxiliary aids and 
services includes--

[[Page 58735]]

    (i) Qualified interpreters or other effective methods of making 
aurally delivered materials available to individuals with hearing 
impairments;
    (ii) Qualified readers, taped texts, or other effective methods of 
making visually delivered materials available to individuals with 
visual impairments;
    (iii) Acquisition or modification of equipment or devices; and
    (iv) Other similar services and actions.
    (o) Physical or mental impairment means:
    (1) Any physiological disorder, or condition, cosmetic 
disfigurement, or anatomical loss affecting one or more body systems 
such as neurological, musculoskeletal, special sense organs, 
respiratory (including speech organs), cardiovascular, reproductive, 
digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, 
and endocrine; or
    (2) Any mental or psychological disorder, such as an intellectual 
disability (formerly termed mental retardation), organic brain 
syndrome, emotional or mental illness, and specific learning 
disabilities.
    (p) Prime contractor means any person holding a contract in excess 
of $10,000, and, for the purposes of subpart D of this part, ``General 
Enforcement and Complaint Procedures,'' includes any person who has 
held a contract subject to the act.
    (q) Qualification standards means the personal and professional 
attributes including the skill, experience, education, physical, 
medical, safety, and other requirements established by the contractor 
as requirements which an individual must meet in order to be eligible 
for the position held or desired.
    (r) Qualified individual means an individual who satisfies the 
requisite skill, experience, education, and other job-related 
requirements of the employment position such individual holds or 
desires, and who, with or without reasonable accommodation, can perform 
the essential functions of such position. See Sec.  60-741.3 for 
exceptions to this definition.
    (s) Reasonable accommodation--(1) In general. The term reasonable 
accommodation means modifications or adjustments:
    (i) To a job application process that enable a qualified applicant 
with a disability to be considered for the position such applicant 
desires; \1\ or
---------------------------------------------------------------------------

    \1\ A contractor's duty to provide a reasonable accommodation 
with respect to applicants with disabilities is not limited to those 
who ultimately demonstrate that they are qualified to perform the 
job in issue. Applicants with disabilities must be provided a 
reasonable accommodation with respect to the application process if 
they are qualified with respect to that process (e.g., if they 
present themselves at the correct location and time to fill out an 
application).
---------------------------------------------------------------------------

    (ii) To the work environment, or to the manner or circumstances 
under which the position held or desired is customarily performed, that 
enable a qualified individual with a disability to perform the 
essential functions of that position; or
    (iii) That enable the contractor's employee with a disability to 
enjoy equal benefits and privileges of employment as are enjoyed by the 
contractor's other similarly situated employees without disabilities.
    (2) Reasonable accommodation may include but is not limited to:
    (i) Making existing facilities used by employees readily accessible 
to and usable by individuals with disabilities; and
    (ii) Job restructuring; part-time or modified work schedules; 
reassignment to a vacant position; acquisition or modifications of 
equipment or devices; appropriate adjustments or modifications of 
examinations, training materials, or policies; the provision of 
qualified readers or interpreters; and other similar accommodations for 
individuals with disabilities.
    (3) To determine the appropriate reasonable accommodation it may be 
necessary for the contractor to initiate an informal, interactive 
process with the qualified individual with a disability in need of the 
accommodation.\2\ This process should identify the precise limitations 
resulting from the disability and potential reasonable accommodations 
that could overcome those limitations. (Appendix A of this part 
provides guidance on a contractor's duty to provide reasonable 
accommodation.)
---------------------------------------------------------------------------

    \2\ Before providing a reasonable accommodation, the contractor 
is strongly encouraged to verify with the individual with a 
disability that the accommodation will effectively meet the 
individual's needs.
---------------------------------------------------------------------------

    (4) Individuals who meet the definition of ``disability'' solely 
under the ``regarded as'' prong of the definition of ``disability'' as 
defined in paragraph (v)(1) of this section are not entitled to receive 
reasonable accommodation.
    (t) Record of such impairment means has a history of, or has been 
misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities. An individual 
shall be considered to have a record of a disability if the individual 
has a history of an impairment that substantially limited one or more 
major life activities when compared to most people in the general 
population, or was misclassified as having had such an impairment.
    (u) Recruiting and training agency means any person who refers 
workers to any contractor, or who provides or supervises apprenticeship 
or training for employment by any contractor.
    (v) Regarded as having such an impairment--(1) Except as provided 
in paragraph (v)(4) of this section, an individual is regarded as 
having such an impairment if the individual is subjected to an action 
prohibited under subpart B (Discrimination Prohibited) of these 
regulations because of an actual or perceived physical or mental 
impairment, whether or not the impairment substantially limits or is 
perceived to substantially limit a major life activity. Prohibited 
actions include but are not limited to refusal to hire, demotion, 
placement on involuntary leave, termination, exclusion for failure to 
meet a qualification standard, harassment, or denial of any other term, 
condition, or privilege of employment.
    (2) Except as provided in paragraph (v)(4) of this section, an 
individual is regarded as having such an impairment any time a 
contractor takes a prohibited action against the individual because of 
an actual or perceived impairment, even if the contractor asserts, or 
may or does ultimately establish a defense to such action.
    (3) Establishing that an individual is regarded as having such an 
impairment does not, by itself, establish liability for unlawful 
discrimination in violation of this part. Such liability is established 
only when an individual proves that a contractor discriminated on the 
basis of disability as prohibited by this part.
    (4) Impairments that are transitory and minor. Paragraph (v)(1) of 
this section shall not apply to an impairment that is shown by the 
contractor to be transitory and minor. The contractor must demonstrate 
that the impairment is both ``transitory'' and ``minor.'' Whether the 
impairment at issue is or would be ``transitory and ``minor'' is to be 
determined objectively. The fact that a contractor subjectively 
believed the impairment was transitory and minor is not sufficient to 
defeat an individual's coverage under paragraph (v)(1) of this section.
    (i) An impairment is transitory if it has an actual or expected 
duration of six months or less.
    (ii) [Reserved]
    (w) Secretary means the Secretary of Labor, United States 
Department of Labor, or his or her designee.
    (x) Subcontract means any agreement or arrangement between a 
contractor and any person (in which the parties do

[[Page 58736]]

not stand in the relationship of an employer and an employee):
    (1) For the purchase, sale or use of personal property or 
nonpersonal services (including construction) which, in whole or in 
part, is necessary to the performance of any one or more contracts; or
    (2) Under which any portion of the contractor's obligation under 
any one or more contracts is performed, undertaken, or assumed.
    (y) Subcontractor means any person holding a subcontract in excess 
of $10,000 and, for the purposes of subpart D of this part, ``General 
Enforcement and Complaint Procedures,'' any person who has held a 
subcontract subject to the act.
    (z) Substantially limits--(1) In general. The term ``substantially 
limits'' shall be construed broadly in favor of expansive coverage, to 
the maximum extent permitted by law. Substantially limits is not meant 
to be a demanding standard and should not demand extensive analysis.
    (i) An impairment is substantially limiting within the meaning of 
this section if it substantially limits the ability of an individual to 
perform a major life activity as compared to most people in the general 
population. An impairment need not prevent, or significantly or 
severely restrict, the individual from performing a major life activity 
in order to be considered ``substantially limiting.'' Nonetheless, not 
every impairment will constitute a disability within the meaning of 
this section.
    (ii) The comparison of an individual's performance of a major life 
activity to the performance of the same major life activity by most 
people in the general population usually will not require scientific, 
medical, or statistical analysis. However, nothing in this section is 
intended to prohibit the presentation of scientific, medical, or 
statistical evidence to make such a comparison where appropriate.
    (iii) In determining whether an individual is substantially limited 
in a major life activity, it may be useful in appropriate cases to 
consider, as compared to most people in the general population, the 
condition under which the individual performs the major life activity; 
the manner in which the individual performs the major life activity; 
and/or the duration of time it takes the individual to perform the 
major life activity, or for which the individual can perform the major 
life activity. This may include consideration of facts such as the 
difficulty, effort, or time required to perform a major life activity; 
pain experienced when performing a major life activity; the length of 
time a major life activity can be performed; and/or the way an 
impairment affects the operation of a major bodily function.
    (2) Non-applicability to the ``regarded as'' prong. Whether an 
individual's impairment substantially limits a major life activity is 
not relevant to a determination of whether the individual is regarded 
as having a disability within the meaning of paragraph (g)(1)(iii) of 
this section.
    (3) Ameliorative effects of mitigating measures. Except as provided 
in paragraph (z)(3)(i) of this section, the determination of whether an 
impairment substantially limits a major life activity shall be made 
without regard to the ameliorative effects of mitigating measures as 
defined in paragraph (n) of this section.
    (i) The ameliorative effects of the mitigating measures of ordinary 
eyeglasses or contact lenses shall be considered when determining 
whether an impairment substantially limits a major life activity. See 
paragraph (n)(2) of this section for a definition of ``ordinary 
eyeglasses or contact lenses.''
    (ii) Non-ameliorative effects of mitigating measures. The non-
ameliorative effects of mitigating measures, such as negative side 
effects of medication or burdens associated with following a particular 
treatment regimen, may be considered when determining whether an 
individual's impairment substantially limits a major life activity.
    (4) In determining whether an individual is substantially limited 
the focus is on how a major life activity is substantially limited, and 
not on the outcomes an individual can achieve. For example, someone 
with a learning disability may achieve a high level of academic 
success, but may nevertheless be substantially limited in the major 
life activity of learning because of the additional time or effort he 
or she must spend to read, write, or learn compared to most people in 
the general population.
    (5) Predictable assessments. The determination of whether an 
impairment substantially limits a major life activity requires an 
individualized assessment. However, the principles set forth in this 
section are intended to provide for generous coverage through a 
framework that is predictable, consistent, and workable for all 
individuals and contractors with rights and responsibilities under this 
part. Therefore, the individualized assessment of some types of 
impairments will, in virtually all cases, result in a determination of 
coverage under paragraph (g)(1)(i) or (ii) of this section. Given their 
inherent nature, these types of impairments will, as a factual matter, 
virtually always be found to impose a substantial limitation on a major 
life activity. With respect to these types of impairments, the 
necessary individualized assessment should be particularly simple and 
straightforward.
    (i) Examples of predictable assessments. Applying the principles 
set forth in this section it should easily be concluded that the 
following types of impairments will, at a minimum, substantially limit 
the major life activities indicated: deafness substantially limits 
hearing; blindness substantially limits seeing; an intellectual 
disability (formerly termed mental retardation) substantially limits 
brain function; partially or completely missing limbs or mobility 
impairments requiring the use of a wheelchair substantially limit 
musculoskeletal function; autism substantially limits brain function; 
cancer substantially limits normal cell growth; cerebral palsy 
substantially limits brain function; diabetes substantially limits 
endocrine function; epilepsy substantially limits neurological 
function; Human Immunodeficiency Virus (HIV) infection substantially 
limits immune function; multiple sclerosis (MS) substantially limits 
neurological function; muscular dystrophy substantially limits 
neurological function; and major depressive disorder, bipolar disorder, 
post-traumatic stress disorder (PTSD), obsessive compulsive disorder, 
and schizophrenia substantially limit brain function. The types of 
impairments described in this section may also substantially limit 
additional major life activities not explicitly listed above.
    (ii) [Reserved].
    (aa) Undue hardship--(1) In general. Undue hardship means, with 
respect to the provision of an accommodation, significant difficulty or 
expense incurred by the contractor, when considered in light of the 
factors set forth in paragraph (aa)(2) of this section.
    (2) Factors to be considered. In determining whether an 
accommodation would impose an undue hardship on the contractor, factors 
to be considered include:
    (i) The nature and net cost of the accommodation needed, taking 
into consideration the availability of tax credits and deductions, and/
or outside funding;
    (ii) The overall financial resources of the facility or facilities 
involved in the provision of the reasonable accommodation, the number 
of persons employed at such facility, and the effect on expenses and 
resources;

[[Page 58737]]

    (iii) The overall financial resources of the contractor, the 
overall size of the business of the contractor with respect to the 
number of its employees, and the number, type and location of its 
facilities;
    (iv) The type of operation or operations of the contractor, 
including the composition, structure and functions of the work force of 
such contractor, and the geographic separateness and administrative or 
fiscal relationship of the facility or facilities in question to the 
contractor; and
    (v) The impact of the accommodation upon the operation of the 
facility, including the impact on the ability of other employees to 
perform their duties and the impact on the facility's ability to 
conduct business.
    (bb) United States, as used herein, shall include the several 
States, the District of Columbia, the Virgin Islands, the Commonwealth 
of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern 
Mariana Islands, and Wake Island.


Sec.  60-741.3  Exceptions to the definitions of ``disability'' and 
``qualified individual.''

    (a) Current illegal use of drugs--(1) In general. The terms 
``disability'' and ``qualified individual'' do not include individuals 
currently engaging in the illegal use of drugs, when the contractor 
acts on the basis of such use.
    (2) ``Drug'' defined. The term drug means a controlled substance, 
as defined in schedules I through V of Section 202 of the Controlled 
Substances Act (21 U.S.C. 812).
    (3) ``Illegal use of drugs'' defined. The term illegal use of drugs 
means the use of drugs, the possession or distribution of which is 
unlawful under the Controlled Substances Act, as updated pursuant to 
that act. Such term does not include the use of a drug taken under 
supervision by a licensed health care professional, or other uses 
authorized by the Controlled Substances Act or other provisions of 
Federal law.
    (4) Construction. (i) Nothing in paragraph (a)(1) of this section 
shall be construed to exclude from the definition of disability or 
qualified individual an individual who:
    (A) Has successfully completed a supervised drug rehabilitation 
program and is no longer engaging in the illegal use of drugs, or has 
otherwise been rehabilitated successfully and is no longer engaging in 
the illegal use of drugs;
    (B) Is participating in a supervised rehabilitation program and is 
no longer engaging in such use; or
    (C) Is erroneously regarded as engaging in such use, but is not 
engaging in such use.
    (ii) In order to be protected by section 503 and this part, an 
individual described in paragraph (a)(4)(i) of this section must, as 
appropriate, satisfy the requirements of the definition of disability 
and qualified individual.
    (5) Drug testing. It shall not be a violation of this part for the 
contractor to adopt or administer reasonable policies or procedures, 
including but not limited to drug testing, designed to ensure that an 
individual described in paragraphs (a)(4)(i)(A) and (B) of this section 
is no longer engaging in the illegal use of drugs. (See Sec.  60-
741.24(b)(1).)
    (b) Alcoholics-- (1) In general. The terms disability and qualified 
individual do not include an individual who is an alcoholic whose 
current use of alcohol prevents such individual from performing the 
essential functions of the employment position such individual holds or 
desires or whose employment, by reason of such current alcohol abuse, 
would constitute a direct threat to property or to the health or safety 
of the individual or others.
    (2) Duty to provide reasonable accommodation. Nothing in paragraph 
(b)(1) of this section shall relieve the contractor of its obligation 
to provide a reasonable accommodation for an individual described in 
paragraph (b)(1) of this section when such an accommodation will enable 
the individual to perform the essential functions of the employment 
position such individual holds or desires, or when the accommodation 
will eliminate or reduce the direct threat to the health or safety of 
the individual or others posed by such individual, provided that such 
individual satisfies the requisite skill, experience, education, and 
other job-related requirements of such position.
    (c) Contagious disease or infection-- (1) In general. The terms 
disability and qualified individual do not include an individual who 
has a currently contagious disease or infection and who, by reason of 
such disease or infection, would constitute a direct threat to the 
health or safety of the individual or others or who, by reason of the 
currently contagious disease or infection, is unable to perform the 
essential functions of the employment position such individual holds or 
desires.
    (2) Duty to provide reasonable accommodation. Nothing in paragraph 
(c)(1) of this section shall relieve the contractor of its obligation 
to provide a reasonable accommodation for an individual described in 
paragraph (c)(1) of this section when such an accommodation will enable 
the individual to perform the essential functions of the employment 
position such individual holds or desires, or when the accommodation 
will eliminate or reduce the direct threat to the health or safety of 
the individual or others posed by such individual, provided that such 
individual satisfies the requisite skill, experience, education, and 
other job-related requirements of such position.
    (d) Homosexuality and bisexuality. Homosexuality and bisexuality 
are not impairments and so are not disabilities as defined in this 
part.
    (e) Other conditions. The term disability does not include:
    (1) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (2) Compulsive gambling, kleptomania, or pyromania; or
    (3) Psychoactive substance use disorders resulting from current 
illegal use of drugs.


Sec.  60-741.4  Coverage and waivers.

    (a) Coverage-- (1) Contracts and subcontracts in excess of $10,000. 
Contracts and subcontracts in excess of $10,000 are covered by this 
part. No contracting agency or contractor shall procure supplies or 
services in less than usual quantities to avoid the applicability of 
the equal opportunity clause.
    (2) Contracts and subcontracts for indefinite quantities. With 
respect to indefinite delivery-type contracts and subcontracts 
(including, but not limited to, open end contracts, requirement-type 
contracts, Federal Supply Schedule contracts, ``call-type'' contracts, 
and purchase notice agreements), the equal opportunity clause shall be 
included unless the contracting agency has reason to believe that the 
amount to be ordered in any year under such contract will not be in 
excess of $10,000. The applicability of the equal opportunity clause 
shall be determined at the time of award for the first year and 
annually thereafter for succeeding years, if any. Notwithstanding the 
above, the equal opportunity clause shall be applied to such contract 
whenever the amount of a single order exceeds $10,000. Once the equal 
opportunity clause is determined to be applicable, the contract shall 
continue to be subject to such clause for its duration, regardless of 
the amounts ordered, or reasonably expected to be ordered in any year.

[[Page 58738]]

    (3) Employment activities within the United States. This part 
applies only to employment activities within the United States and not 
to employment activities abroad. The term employment activities within 
the United States includes actual employment within the United States, 
and decisions of the contractor made within the United States, 
pertaining to the contractor's applicants and employees who are within 
the United States, regarding employment opportunities abroad (such as 
recruiting and hiring within the United States for employment abroad, 
or transfer of persons employed in the United States to contractor 
establishments abroad).
    (4) Contracts with State or local governments. The requirements of 
the equal opportunity clause in any contract or subcontract with a 
State or local government (or any agency, instrumentality or 
subdivision thereof) shall not be applicable to any agency, 
instrumentality or subdivision of such government which does not 
participate in work on or under the contract or subcontract.
    (b) Waivers--(1) Specific contracts and classes of contracts. The 
Director may waive the application to any contract of the equal 
opportunity clause in whole or part when he or she deems that special 
circumstances in the national interest so require. The Director may 
also grant such waivers to groups or categories of contracts: where it 
is in the national interest; where it is found impracticable to act 
upon each request individually; and where such waiver will 
substantially contribute to convenience in administration of the act. 
When a waiver has been granted for any class of contracts, the Director 
may withdraw the waiver for a specific contract or group of contracts 
to be awarded, when in his or her judgment such action is necessary or 
appropriate to achieve the purposes of the act. The withdrawal shall 
not apply to contracts awarded prior to the withdrawal, except that in 
procurements entered into by formal advertising, or the various forms 
of restricted formal advertising, such withdrawal shall not apply 
unless the withdrawal is made more than 10 calendar days before the 
date set for the opening of the bids.
    (2) National security. Any requirement set forth in the regulations 
of this part shall not apply to any contract whenever the head of the 
contracting agency determines that such contract is essential to the 
national security and that its award without complying with such 
requirements is necessary to the national security. Upon making such a 
determination, the head of the contracting agency will notify the 
Director in writing within 30 days.
    (3) Facilities not connected with contracts. (i) Upon the written 
request of the contractor, the Director may waive the requirements of 
the equal opportunity clause with respect to any of a contractor's 
facilities if the Director finds that the contractor has demonstrated 
that:
    (A) The facility is in all respects separate and distinct from 
activities of the contractor related to the performance of a contract; 
and
    (B) Such a waiver will not interfere with or impede the 
effectuation of the act.
    (ii) The Director's findings as to whether the facility is separate 
and distinct in all respects from activities of the contractor related 
to the performance of a contract shall include consideration of the 
following factors:
    (A) Whether any work at the facility directly or indirectly 
supports or contributes to the satisfaction of the work performed on a 
Government contract;
    (B) The extent to which the facility benefits, directly or 
indirectly, from a Government contract;
    (C) Whether any costs associated with operating the facility are 
charged to a Government contract;
    (D) Whether working at the facility is a prerequisite for 
advancement in job responsibility or pay, and the extent to which 
employees at facilities connected to a Government contract are 
recruited for positions at the facility;
    (E) Whether employees or applicants for employment at the facility 
may perform work related to a Government contract at another facility, 
and the extent to which employees at the facility are interchangeable 
with employees at facilities connected to a Government contract; and
    (F) Such other factors that the Director deems are necessary or 
appropriate for considering whether the facility is in all respects 
separate and distinct from the activities of the contractor related to 
the performance of a contract.
    (iii) The Director's findings as to whether granting a waiver will 
interfere with or impede the effectuation of the act shall include 
consideration of the following factors:
    (A) Whether the waiver will be used as a subterfuge to circumvent 
the contractor's obligations under the act;
    (B) The contractor's compliance with the act or any other Federal, 
State or local law requiring equal opportunity for disabled persons;
    (C) The impact of granting the waiver on OFCCP enforcement efforts; 
and
    (D) Such other factors that the Director deems are necessary or 
appropriate for considering whether the granting of the waiver would 
interfere with or impede the effectuation of the act.
    (iv) A contractor granted a waiver under paragraph (b)(3) of this 
section shall:
    (A) Promptly inform the Director of any changed circumstances not 
reflected in the contractor's waiver request; and
    (B) Permit the Director access during normal business hours to the 
contractor's places of business for the purpose of investigating 
whether the facility granted a waiver meets the standards and 
requirements of paragraph (b)(3) of this section, and for inspecting 
and copying such books and accounts and records, including computerized 
records, and other material as may be relevant to the matter under 
investigation.
    (v)(A) A waiver granted under paragraph (b)(3) of this section 
shall terminate on one of the following dates, whichever is earliest:
    (1) Two years after the date the waiver was granted.
    (2) When the facility performs any work that directly supports or 
contributes to the satisfaction of the work performed on a Government 
contract.
    (3) When the Director determines, based on information provided by 
the contractor under this section or upon any other relevant 
information, that the facility does not meet the requirements of 
paragraph (b)(3) of this section.
    (B) When a waiver terminates in accordance with paragraph 
(b)(3)(v)(A) of this section the contractor shall ensure that the 
facility complies with this part on the date of termination, except 
that compliance with Sec. Sec.  60-741.40 through 60-741.44, if 
applicable, must be attained within 120 days of such termination.
    (vi) False or fraudulent statements or representations made by a 
contractor under paragraph (b)(3) of this section are prohibited and 
may subject the contractor to sanctions and penalties under this part 
and criminal prosecution under 18 U.S.C. 1001.


Sec.  60-741.5  Equal opportunity clause.

    (a) Government contracts. Each contracting agency and each 
contractor shall include the following equal opportunity clause in each 
of its covered Government contracts or subcontracts (and modifications, 
renewals, or extensions thereof if not included in the original 
contract):

[[Page 58739]]

Equal Opportunity for Workers With Disabilities

    1. The contractor will not discriminate against any employee or 
applicant for employment because of physical or mental disability in 
regard to any position for which the employee or applicant for 
employment is qualified. The contractor agrees to take affirmative 
action to employ and advance in employment individuals with 
disabilities, and to treat qualified individuals without 
discrimination on the basis of their physical or mental disability 
in all employment practices, including the following:
    i. Recruitment, advertising, and job application procedures;
    ii. Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff and 
rehiring;
    iii. Rates of pay or any other form of compensation and changes 
in compensation;
    iv. Job assignments, job classifications, organizational 
structures, position descriptions, lines of progression, and 
seniority lists;
    v. Leaves of absence, sick leave, or any other leave;
    vi. Fringe benefits available by virtue of employment, whether 
or not administered by the contractor;
    vii. Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other 
related activities, and selection for leaves of absence to pursue 
training;
    viii. Activities sponsored by the contractor including social or 
recreational programs; and
    ix. Any other term, condition, or privilege of employment.
    2. The contractor agrees to comply with the rules, regulations, 
and relevant orders of the Secretary of Labor issued pursuant to the 
act.
    3. In the event of the contractor's noncompliance with the 
requirements of this clause, actions for noncompliance may be taken 
in accordance with the rules, regulations, and relevant orders of 
the Secretary of Labor issued pursuant to the act.
    4. The contractor agrees to post in conspicuous places, 
available to employees and applicants for employment, notices in a 
form to be prescribed by the Director, Office of Federal Contract 
Compliance Programs, provided by or through the contracting officer. 
Such notices shall state the rights of applicants and employees as 
well as the contractor's obligation under the law to take 
affirmative action to employ and advance in employment qualified 
employees and applicants with disabilities. The contractor must 
ensure that applicants or employees with disabilities are provided 
the notice in a form that is accessible and understandable to the 
individual applicant or employee (e.g., providing Braille or large 
print versions of the notice, or posting a copy of the notice at a 
lower height for easy viewing by a person using a wheelchair). With 
respect to employees who do not work at a physical location of the 
contractor, a contractor will satisfy its posting obligations by 
posting such notices in an electronic format, provided that the 
contractor provides computers, or access to computers, that can 
access the electronic posting to such employees, or the contractor 
has actual knowledge that such employees otherwise are able to 
access the electronically posted notices. Electronic notices for 
employees must be posted in a conspicuous location and format on the 
company's intranet or sent by electronic mail to employees. An 
electronic posting must be used by the contractor to notify job 
applicants of their rights if the contractor utilizes an electronic 
application process. Such electronic applicant notice must be 
conspicuously stored with, or as part of, the electronic 
application.
    5. The contractor will notify each labor organization or 
representative of workers with which it has a collective bargaining 
agreement or other contract understanding, that the contractor is 
bound by the terms of section 503 of the Rehabilitation Act of 1973, 
as amended, and is committed to take affirmative action to employ 
and advance in employment, and shall not discriminate against, 
individuals with physical or mental disabilities.
    6. The contractor will include the provisions of this clause in 
every subcontract or purchase order in excess of $10,000, unless 
exempted by the rules, regulations, or orders of the Secretary 
issued pursuant to section 503 of the act, as amended, so that such 
provisions will be binding upon each subcontractor or vendor. The 
contractor will take such action with respect to any subcontract or 
purchase order as the Director, Office of Federal Contract 
Compliance Programs may direct to enforce such provisions, including 
action for noncompliance.
    7. The contractor must, in all solicitations or advertisements 
for employees placed by or on behalf of the contractor, state that 
all qualified applicants will receive consideration for employment 
and will not be discriminated against on the basis of disability.


[End of Clause]

    (b) Subcontracts. Each contractor shall include the equal 
opportunity clause in each of its subcontracts subject to this part.
    (c) Adaption of language. Such necessary changes in language may be 
made to the equal opportunity clause as shall be appropriate to 
identify properly the parties and their undertakings.
    (d) Inclusion of the equal opportunity clause in the contract. It 
is not necessary to include the equal opportunity clause verbatim in 
the contract. The clause shall be made a part of the contract by 
citation to 41 CFR 60-741.5(a) and inclusion of the following language, 
in bold text, after the citation: ``This contractor and subcontractor 
shall abide by the requirements of 41 CFR 60-741.5(a). This regulation 
prohibits discrimination against qualified individuals on the basis of 
disability, and requires affirmative action by covered prime 
contractors and subcontractors to employ and advance in employment 
qualified individuals with disabilities.''
    (e) Incorporation by operation of the act. By operation of the act, 
the equal opportunity clause shall be considered to be a part of every 
contract and subcontract required by the act and the regulations in 
this part to include such a clause, whether or not it is physically 
incorporated in such contract and whether or not there is a written 
contract between the agency and the contractor.
    (f) Duties of contracting agencies. Each contracting agency shall 
cooperate with the Director and the Secretary in the performance of 
their responsibilities under the act. Such cooperation shall include 
insuring that the equal opportunity clause is included in all covered 
Government contracts and that contractors are fully informed of their 
obligations under the act and this part, providing the Director with 
any information which comes to the agency's attention that a contractor 
is not in compliance with the act or this part, responding to requests 
for information from the Director, and taking such actions for 
noncompliance as are set forth in Sec.  60-741.66 as may be ordered by 
the Secretary or the Director.

Subpart B--Discrimination Prohibited


Sec.  60-741.20  Covered employment activities.

    The prohibition against discrimination in this part applies to the 
following employment activities:
    (a) Recruitment, advertising, and job application procedures;
    (b) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;
    (c) Rates of pay or any other form of compensation and changes in 
compensation;
    (d) Job assignments, job classifications, organizational 
structures, position descriptions, lines of progression, and seniority 
lists;
    (e) Leaves of absence, sick leave, or any other leave;
    (f) Fringe benefits available by virtue of employment, whether or 
not administered by the contractor;
    (g) Selection and financial support for training, including 
apprenticeships, professional meetings, conferences and other related 
activities, and selection for leaves of absence to pursue training;
    (h) Activities sponsored by the contractor including social and 
recreational programs; and
    (i) Any other term, condition, or privilege of employment.

[[Page 58740]]

Sec.  60-741.21  Prohibitions.

    (a) The term discrimination includes, but is not limited to, the 
acts described in this section and Sec.  60-741.23.
    (1) Disparate treatment. It is unlawful for the contractor to deny 
an employment opportunity or benefit or otherwise to discriminate 
against a qualified individual on the basis of disability.
    (2) Limiting, segregating and classifying. Unless otherwise 
permitted by this part, it is unlawful for the contractor to limit, 
segregate, or classify a job applicant or employee in a way that 
adversely affects his or her employment opportunities or status on the 
basis of disability. For example, the contractor may not segregate 
employees into separate work areas or into separate lines of 
advancement on the basis of disability.
    (3) Contractual or other arrangements--(i) In general. It is 
unlawful for the contractor to participate in a contractual or other 
arrangement or relationship that has the effect of subjecting the 
contractor's own qualified applicant or employee with a disability to 
the discrimination prohibited by this part.
    (ii) Contractual or other arrangement defined. The phrase 
contractual or other arrangement or relationship includes, but is not 
limited to, a relationship with: an employment or referral agency; a 
labor organization, including a collective bargaining agreement; an 
organization providing fringe benefits to an employee of the 
contractor; or an organization providing training and apprenticeship 
programs.
    (iii) Application. This paragraph (a)(3) applies to the contractor, 
with respect to its own applicants or employees, whether the contractor 
offered the contract or initiated the relationship, or whether the 
contractor accepted the contract or acceded to the relationship. The 
contractor is not liable for the actions of the other party or parties 
to the contract which only affect that other party's employees or 
applicants.
    (4) Standards, criteria or methods of administration. It is 
unlawful for the contractor to use standards, criteria, or methods of 
administration, that are not job-related and consistent with business 
necessity, and that:
    (i) Have the effect of discriminating on the basis of disability; 
or
    (ii) Perpetuate the discrimination of others who are subject to 
common administrative control.
    (5) Relationship or association with an individual with a 
disability. It is unlawful for the contractor to exclude or deny equal 
jobs or benefits to, or otherwise discriminate against, a qualified 
individual because of the known disability of an individual with whom 
the qualified individual is known to have a family, business, social, 
or other relationship or association.
    (6) Not making reasonable accommodation. (i) It is unlawful for the 
contractor to fail to make reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified applicant or 
employee with a disability as defined in Sec. Sec.  60-741.2(g)(1)(i) 
or (ii), unless such contractor can demonstrate that the accommodation 
would impose an undue hardship on the operation of its business.
    (ii) It is unlawful for the contractor to deny employment 
opportunities to an otherwise qualified job applicant or employee with 
a disability based on the need of such contractor to make reasonable 
accommodation to such an individual's physical or mental impairments.
    (iii) The reasonable accommodation obligation extends to the 
contractor's use of electronic or online job application systems. If a 
contractor uses such a system, it must provide necessary reasonable 
accommodation to ensure that an otherwise qualified individual with a 
disability who is not able to fully utilize that system is nonetheless 
provided with equal opportunity to apply and be considered for all 
jobs. Though not required by this part, it is a best practice for the 
contractor to make its online job application system accessible and 
compatible with assistive technologies used by individuals with 
disabilities.
    (iv) A qualified individual with a disability is not required to 
accept an accommodation, aid, service, opportunity, or benefit which 
such qualified individual chooses not to accept. However, if such 
individual rejects a reasonable accommodation, aid, service, 
opportunity or benefit that is necessary to enable the individual to 
perform the essential functions of the position held or desired, and 
cannot, as a result of that rejection, perform the essential functions 
of the position, the individual will not be considered a qualified 
individual with a disability.
    (v) A contractor is not required to provide reasonable 
accommodation to an individual who satisfies only the ``regarded as 
having such an impairment'' prong of the definition of ``disability,'' 
as defined in Sec.  60- 741.2(v)(1).
    (vi) Reasonable accommodation procedures. The development and use 
of written procedures for processing requests for reasonable 
accommodation is a best practice that may assist the contractor in 
meeting its reasonable accommodation obligations under section 503 and 
this part. Such procedures help ensure that applicants and employees 
are informed as to how to request a reasonable accommodation and are 
aware of how such a request will be processed by the contractor. They 
also help ensure that the contractor's supervisors and managers know 
what to do should they receive a request for reasonable accommodation, 
and that all requests for accommodation are processed swiftly, within a 
reasonable period of time. The development and use of written 
reasonable accommodation procedures is not required by this part, and 
it is not a violation of this part for a contractor not to have or use 
such procedures. However, Appendix B of this part provides guidance to 
contractors that choose to develop and use written reasonable 
accommodation procedures.
    (7) Qualification standards, tests and other selection criteria--
(i) In general. It is unlawful for the contractor to use qualification 
standards, employment tests, or other selection criteria that screen 
out or tend to screen out an individual with a disability or a class of 
individuals with disabilities, on the basis of disability, unless the 
standard, test, or other selection criterion, as used by the 
contractor, is shown to be job-related for the position in question and 
is consistent with business necessity. Selection criteria that concern 
an essential function may not be used to exclude an individual with a 
disability if that individual could satisfy the criteria with provision 
of a reasonable accommodation. Selection criteria that exclude or tend 
to exclude an individual with a disability or a class of individuals 
with disabilities on the basis of disability but concern only marginal 
functions of the job would not be consistent with business necessity. 
The contractor may not refuse to hire an applicant with a disability 
because the applicant's disability prevents him or her from performing 
marginal functions.
    (ii) Qualification standards and tests related to uncorrected 
vision. It is unlawful for the contractor to use qualification 
standards, employment tests, or other selection criteria based on an 
individual's uncorrected vision unless the standard, test, or other 
selection criteria, as used by the contractor, is shown to be job-
related for the position in question and consistent with business 
necessity. An individual challenging a contractor's application of a 
qualification standard, test, or other criterion based on uncorrected 
vision need not be an individual with a disability, but must be 
adversely

[[Page 58741]]

affected by the application of the standard, test, or other criterion.
    (iii) The Uniform Guidelines on Employee Selection Procedures, 41 
CFR part 60-3, do not apply to the Rehabilitation Act and are similarly 
inapplicable to this part.
    (8) Administration of tests. It is unlawful for the contractor to 
fail to select and administer tests concerning employment in the most 
effective manner to ensure that, when a test is administered to a job 
applicant or employee who has a disability that impairs sensory, 
manual, or speaking skills, the test results accurately reflect the 
skills, aptitude, or whatever other factor of the applicant or employee 
that the test purports to measure, rather than reflecting the impaired 
sensory, manual, or speaking skills of such employee or applicant, 
except where such skills are the factors that the test purports to 
measure.
    (9) Compensation. In offering employment or promotions to 
individuals with disabilities, it is unlawful for the contractor to 
reduce the amount of compensation offered because of any income based 
upon a disability-related pension or other disability-related benefit 
the applicant or employee receives from another source. Nor may the 
contractor reduce the amount of compensation offered to an individual 
with a disability because of the actual or anticipated cost of a 
reasonable accommodation the individual needs or may request.
    (b) Claims of No Disability. Nothing in this part shall provide the 
basis for a claim that an individual without a disability was subject 
to discrimination because of the lack of disability, or because an 
individual with a disability was granted an accommodation that was 
denied to an individual without a disability.


Sec.  60-741.22  Direct threat defense.

    The contractor may use as a qualification standard the requirement 
that an individual be able to perform the essential functions of the 
position held or desired without posing a direct threat to the health 
or safety of the individual or others in the workplace. (See Sec.  60-
741.2(e) defining direct threat.)


Sec.  60-741.23  Medical examinations and inquiries.

    (a) Prohibited medical examinations or inquiries. Except as stated 
in paragraphs (b) and (c) of this section, it is unlawful for the 
contractor to require a medical examination of an applicant or employee 
or to make inquiries as to whether an applicant or employee is an 
individual with a disability or as to the nature or severity of such 
disability.
    (b) Permitted medical examinations and inquiries--(1) Acceptable 
pre-employment inquiry. The contractor may make pre-employment 
inquiries into the ability of an applicant to perform job-related 
functions, and/or may ask an applicant to describe or to demonstrate 
how, with or without reasonable accommodation, the applicant will be 
able to perform job-related functions.
    (2) Employment entrance examination. The contractor may require a 
medical examination (and/or inquiry) after making an offer of 
employment to a job applicant and before the applicant begins his or 
her employment duties, and may condition an offer of employment on the 
results of such examination (and/or inquiry), if all entering employees 
in the same job category are subjected to such an examination (and/or 
inquiry) regardless of disability.
    (3) Examination of employees. The contractor may require a medical 
examination (and/or inquiry) of an employee that is job-related and 
consistent with business necessity. The contractor may make inquiries 
into the ability of an employee to perform job-related functions.
    (4) Other acceptable examinations and inquiries. The contractor may 
conduct voluntary medical examinations and activities, including 
voluntary medical histories, which are part of an employee health 
program available to employees at the work site. These medical 
examinations and activities do not have to be job-related and 
consistent with business necessity.
    (5) Medical examinations conducted in accordance with paragraph 
(b)(2) of this section do not have to be job-related and consistent 
with business necessity. However, if certain criteria are used to 
screen out an applicant or applicants or an employee or employees with 
disabilities as a result of such examinations or inquiries, the 
contractor must demonstrate that the exclusionary criteria are job-
related and consistent with business necessity, and that performance of 
the essential job functions cannot be accomplished with reasonable 
accommodations as required in this part.
    (c) Invitation to self-identify. The contractor shall invite the 
applicant to self-identify as an individual with a disability as 
specified in Sec.  60-741.42.
    (d) Confidentiality and use of medical information. (1) Information 
obtained under this section regarding the medical condition or history 
of any applicant or employee shall be collected and maintained on 
separate forms and in separate medical files and treated as a 
confidential medical record, except that:
    (i) Supervisors and managers may be informed regarding necessary 
restrictions on the work or duties of the applicant or employee and 
necessary accommodations;
    (ii) First aid and safety personnel may be informed, when 
appropriate, if the disability might require emergency treatment; and
    (iii) Government officials engaged in enforcing the laws 
administered by OFCCP, including this part, or enforcing the Americans 
with Disabilities Act, as amended, shall be provided relevant 
information on request.
    (2) Information obtained under this section regarding the medical 
condition or history of any applicant or employee shall not be used for 
any purpose inconsistent with this part.


Sec.  60-741.24  Drugs and alcohol.

    (a) Specific activities permitted. The contractor:
    (1) May prohibit the illegal use of drugs and the use of alcohol at 
the workplace by all employees;
    (2) May require that employees not be under the influence of 
alcohol or be engaging in the illegal use of drugs at the workplace;
    (3) May require that all employees behave in conformance with the 
requirements established under the Drug-Free Workplace Act of 1988 (41 
U.S.C. 701 et seq.);
    (4) May hold an employee who engages in the illegal use of drugs or 
who is an alcoholic to the same qualification standards for employment 
or job performance and behavior to which the contractor holds its other 
employees, even if any unsatisfactory performance or behavior is 
related to the employee's drug use or alcoholism;
    (5) May require that its employees employed in an industry subject 
to such regulations comply with the standards established in the 
regulations (if any) of the Departments of Defense and Transportation, 
and of the Nuclear Regulatory Commission, and other Federal agencies 
regarding alcohol and the illegal use of drugs; and
    (6) May require that employees employed in sensitive positions 
comply with the regulations (if any) of the Departments of Defense and 
Transportation, and of the Nuclear Regulatory Commission, and other 
Federal agencies that apply to employment in sensitive positions 
subject to such regulations.
    (b) Drug testing--(1) General policy. For purposes of this part, a 
test to determine the illegal use of drugs is not

[[Page 58742]]

considered a medical examination. Thus, the administration of such drug 
tests by the contractor to its job applicants or employees is not a 
violation of Sec.  60-741.23. Nothing in this part shall be construed 
to encourage, prohibit, or authorize the contractor to conduct drug 
tests of job applicants or employees to determine the illegal use of 
drugs or to make employment decisions based on such test results.
    (2) Transportation employees. Nothing in this part shall be 
construed to encourage, prohibit, or authorize the otherwise lawful 
exercise by contractors subject to the jurisdiction of the Department 
of Transportation of authority to test employees in, and applicants 
for, positions involving safety-sensitive duties for the illegal use of 
drugs or for on-duty impairment by alcohol; and remove from safety-
sensitive positions persons who test positive for illegal use of drugs 
or on-duty impairment by alcohol pursuant to paragraph (b)(1) of this 
section.
    (3) Any information regarding the medical condition or history of 
any employee or applicant obtained from a test to determine the illegal 
use of drugs, except information regarding the illegal use of drugs, is 
subject to the requirements of Sec.  60-741.23(b)(5) and (c).


Sec.  60-741.25  Health insurance, life insurance, and other benefit 
plans.

    (a) An insurer, hospital, or medical service company, health 
maintenance organization, or any agent or entity that administers 
benefit plans, or similar organizations may underwrite risks, classify 
risks, or administer such risks that are based on or not inconsistent 
with State law.
    (b) The contractor may establish, sponsor, observe, or administer 
the terms of a bona fide benefit plan that are based on underwriting 
risks, classifying risks, or administering such risks that are based on 
or not inconsistent with State law.
    (c) The contractor may establish, sponsor, observe, or administer 
the terms of a bona fide benefit plan that is not subject to State laws 
that regulate insurance.
    (d) The contractor may not deny an individual with a disability 
equal access to insurance or subject an individual with a disability to 
different terms or conditions of insurance based on disability alone, 
if the disability does not pose increased risks.
    (e) The activities described in paragraphs (a), (b), and (c) of 
this section are permitted unless these activities are used as a 
subterfuge to evade the purposes of this part.

Subpart C--Affirmative Action Program


Sec.  60-741.40  General purpose and applicability of the affirmative 
action program requirement.

    (a) General purpose. An affirmative action program is a management 
tool designed to ensure equal employment opportunity and foster 
employment opportunities for individuals with disabilities. An 
affirmative action program institutionalizes the contractor's 
commitment to equality in every aspect of employment and is more than a 
paperwork exercise. An affirmative action program is dynamic in nature 
and includes measurable objectives, quantitative analyses, and internal 
auditing and reporting systems that measure the contractor's progress 
toward achieving equal employment opportunity for individuals with 
disabilities.
    (b) Applicability of the affirmative action program. (1) The 
requirements of this subpart apply to every Government contractor that 
has 50 or more employees and a contract of $50,000 or more.
    (2) Contractors described in paragraph (b)(1) of this section 
shall, within 120 days of the commencement of a contract, prepare and 
maintain an affirmative action program at each establishment. The 
affirmative action program shall set forth the contractor's policies 
and procedures in accordance with this part. This program may be 
integrated into or kept separate from other affirmative action 
programs.
    (3) The affirmative action program shall be reviewed and updated 
annually by the official designated by the contractor pursuant to Sec.  
60-741.44(i).
    (c) Submission of program to OFCCP. The contractor shall submit the 
affirmative action program within 30 days of a request from OFCCP, 
unless the request provides for a different time. The contractor also 
shall make the affirmative action program promptly available on-site 
upon OFCCP's request.


Sec.  60-741.41  Availability of affirmative action program.

    The full affirmative action program, absent the data metrics 
required by Sec.  60-741.44(k), shall be available to any employee or 
applicant for employment for inspection upon request. The location and 
hours during which the program may be obtained shall be posted at each 
establishment.


Sec.  60-741.42  Invitation to self-identify.

    (a) Pre-offer. (1) As part of the contractor's affirmative action 
obligation, the contractor shall invite applicants to inform the 
contractor whether the applicant believes that he or she is an 
individual with a disability as defined in Sec.  60-741.2(g)(1)(i) or 
(ii). This invitation shall be provided to each applicant when the 
applicant applies or is considered for employment. The invitation may 
be included with the application materials for a position, but must be 
separate from the application.
    (2) The contractor shall invite an applicant to self-identify as 
required in paragraph (a) of this section using the language and manner 
prescribed by the Director and published on the OFCCP Web site.
    (b) Post-offer. (1) At any time after the offer of employment, but 
before the applicant begins his or her job duties, the contractor shall 
invite the applicant to inform the contractor whether the applicant 
believes that he or she is an individual with a disability as defined 
in Sec.  60-741.2(g)(1)(i) or (ii).
    (2) The contractor shall invite an applicant to self-identify as 
required in paragraph (b) of this section using the language and manner 
prescribed by the Director and published on the OFCCP Web site.
    (c) Employees. The contractor shall invite each of its employees to 
voluntarily inform the contractor whether the employee believes that he 
or she is an individual with a disability as defined in Sec.  60-
741.2(g)(1)(i) or (ii). This invitation shall be extended the first 
year the contractor becomes subject to the requirements of this section 
and at five year intervals, thereafter, using the language and manner 
prescribed by the Director and published on the OFCCP Web site. At 
least once during the intervening years between these invitations, the 
contractor must remind their employees that they may voluntarily update 
their disability status.
    (d) The contractor may not compel or coerce an individual to self-
identify as an individual with a disability.
    (e) The contractor shall keep all information on self-
identification confidential, and shall maintain it in a data analysis 
file (rather than in the medical files of individual employees). See 
Sec.  60-741.23(d). The contractor shall provide self-identification 
information to OFCCP upon request. Self-identification information may 
be used only in accordance with this part.
    (f) Nothing in this section shall relieve the contractor of its 
obligation to take affirmative action with respect to those applicants 
or employees of whose disability the contractor has knowledge.
    (g) Nothing in this section shall relieve the contractor from 
liability for

[[Page 58743]]

discrimination in violation of section 503 or this part.


Sec.  60-741.43  Affirmative action policy.

    Under the affirmative action obligations imposed by the act, 
contractors shall not discriminate because of physical or mental 
disability and shall take affirmative action to employ and advance in 
employment qualified individuals with disabilities at all levels of 
employment, including the executive level. Such action shall apply to 
all employment activities set forth in Sec.  60-741.20.


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

    Acceptable affirmative action programs shall contain, but not 
necessarily be limited to the following elements:
    (a) Policy statement. The contractor shall include an equal 
opportunity policy statement in its affirmative action program, and 
shall post the policy statement on company bulletin boards. The 
contractor must ensure that applicants and employees with disabilities 
are provided the notice in a form that is accessible and understandable 
to the individual with a disability (e.g., providing Braille or large 
print versions of the notice, or posting a copy of the notice at a 
lower height for easy viewing by a person using a wheelchair). The 
policy statement shall indicate the top United States executive's (such 
as the Chief Executive Officer or the President of the United States 
Division of a foreign company) support for the contractor's affirmative 
action program, provide for an audit and reporting system (see 
paragraph (h) of this section) and assign overall responsibility for 
the implementation of affirmative action activities required under this 
part (see paragraph (i) of this section). Additionally, the policy 
shall state, among other things that the contractor will: recruit, 
hire, train, and promote persons in all job titles, and ensure that all 
other personnel actions are administered without regard to disability; 
and ensure that all employment decisions are based only on valid job 
requirements. The policy shall state that employees and applicants 
shall not be subjected to harassment, intimidation, threats, coercion, 
or discrimination because they have engaged in or may engage in any of 
the following activities:
    (1) Filing a complaint;
    (2) Assisting or participating in an investigation, compliance 
evaluation, hearing, or any other activity related to the 
administration of section 503 or any other Federal, State, or local law 
requiring equal opportunity for individuals with disabilities;
    (3) Opposing any act or practice made unlawful by section 503 or 
its implementing regulations in this part, or any other Federal, State 
or local law requiring equal opportunity for individuals with 
disabilities; or
    (4) Exercising any other right protected by section 503 or its 
implementing regulations in this part.
    (b) Review of personnel processes. The contractor shall ensure that 
its personnel processes provide for careful, thorough, and systematic 
consideration of the job qualifications of applicants and employees 
with known disabilities for job vacancies filled either by hiring or 
promotion, and for all training opportunities offered or available. The 
contractor shall ensure that its personnel processes do not stereotype 
individuals with disabilities in a manner which limits their access to 
all jobs for which they are qualified. In addition, the contractor 
shall ensure that applicants and employees with disabilities have equal 
access to its personnel processes, including those implemented through 
information and communication technologies. The contractor is required 
to provide necessary reasonable accommodation to ensure applicants and 
employees with disabilities receive equal opportunity in the operation 
of personnel processes. The contractor is also encouraged to make its 
information and communication technologies accessible, even absent a 
specific request for reasonable accommodation.\3\ The contractor shall 
periodically review such processes and make any necessary modifications 
to ensure that these obligations are carried out. A description of the 
review and any necessary modifications to personnel processes or 
development of new processes shall be included in any affirmative 
action programs required under this part. The contractor must design 
procedures that facilitate a review of the implementation of this 
requirement by the contractor and the Government.
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    \3\ Contractors are encouraged to make their information and 
communication technology accessible. There are a variety of 
resources that may assist contractors in assessing and ensuring the 
accessibility of its information and communication technology. These 
include the Web Content Accessibility Guidelines (WCAG 2.0) of the 
World Wide Web Consortium Web Accessibility Initiative, online at 
www.w3.org/WAI/intro/wcag.php, and the regulations implementing the 
accessibility requirements for Federal agencies prescribed in 
section 508 of the Rehabilitation Act. Information on section 508 
may be found online at http://www.section508.gov/index.cfm. This Web 
site also provides information about various State accessibility 
requirements and initiatives.
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    (c) Physical and mental qualifications. (1) The contractor shall 
provide in its affirmative action program, and shall adhere to, a 
schedule for the review of all physical and mental job qualification 
standards to ensure that, to the extent qualification standards tend to 
screen out qualified individuals with disabilities, they are job-
related for the position in question and are consistent with business 
necessity.
    (2) Whenever the contractor applies physical or mental 
qualification standards in the selection of applicants or employees for 
employment or other change in employment status such as promotion, 
demotion or training, to the extent that qualification standards tend 
to screen out qualified individuals on the basis of disability, the 
standards shall be related to the specific job or jobs for which the 
individual is being considered and consistent with business necessity. 
The contractor shall have the burden to demonstrate that it has 
complied with the requirements of this paragraph (c).
    (3) The contractor may use as a defense to an allegation of a 
violation of paragraph (c)(2) of this section that an individual poses 
a direct threat to the health or safety of the individual or others in 
the workplace. (See Sec.  60-741.2(e) defining direct threat.)
    (d) Reasonable accommodation to physical and mental limitations. 
(1) As is provided in Sec.  60-741.21(a)(6), as a matter of 
nondiscrimination, the contractor must make reasonable accommodation to 
the known physical or mental limitations of an otherwise qualified 
individual with a disability unless it can demonstrate that the 
accommodation would impose an undue hardship on the operation of its 
business. As a matter of affirmative action, if an employee with a 
known disability is having significant difficulty performing his or her 
job and it is reasonable to conclude that the performance problem may 
be related to the known disability, the contractor shall confidentially 
notify the employee of the performance problem and inquire whether the 
problem is related to the employee's disability. If the employee 
responds affirmatively, the contractor shall confidentially inquire 
whether the employee is in need of a reasonable accommodation.
    (2) Reasonable accommodation procedures. The development and use of 
written procedures for processing requests for reasonable accommodation 
is a best practice that may assist the contractor in meeting its 
reasonable

[[Page 58744]]

accommodation obligations under section 503 and this part. Such 
procedures help ensure that applicants and employees are informed as to 
how to request a reasonable accommodation and are aware of how such a 
request will be processed by the contractor. They also help ensure that 
the contractor's supervisors and managers know what to do should they 
receive a request for reasonable accommodation, and that all requests 
for accommodation are processed swiftly, within a reasonable period of 
time. The development and use of written reasonable accommodation 
procedures is not required by this part, and it is not a violation of 
this part for a contractor not to have or use such procedures. However, 
Appendix B of this part provides guidance to contractors that choose to 
develop and use written reasonable accommodation procedures.
    (e) Harassment. The contractor must develop and implement 
procedures to ensure that its employees are not harassed on the basis 
of disability.
    (f) External dissemination of policy, outreach, and positive 
recruitment--(1) Required outreach efforts. (i) The contractor shall 
undertake appropriate outreach and positive recruitment activities such 
as those listed in paragraph (f)(2) of this section that are reasonably 
designed to effectively recruit qualified individuals with 
disabilities. It is not contemplated that the contractor will 
necessarily undertake all the activities listed in paragraph (f)(2) of 
this section or that its activities will be limited to those listed. 
The scope of the contractor's efforts shall depend upon all the 
circumstances, including the contractor's size and resources and the 
extent to which existing employment practices are adequate.
    (ii) The contractor must send written notification of company 
policy related to its affirmative action efforts to all subcontractors, 
including subcontracting vendors and suppliers, requesting appropriate 
action on their part.
    (2) Examples of outreach and recruitment activities. Below are 
examples of outreach and positive recruitment activities referred to in 
paragraph (f)(1) of this section.
    (i) Enlisting the assistance and support of the following persons 
and organizations in recruiting, and developing on-the-job training 
opportunities for individuals with disabilities, in order to fulfill 
its commitment to provide equal employment opportunity for such 
individuals:
    (A) The State Vocational Rehabilitation Service Agency (SVRA), 
State mental health agency, or State developmental disability agency in 
the area of the contractor's establishment;
    (B) The Employment One-Stop Career Center (One-Stop) or American 
Job Center nearest the contractor's establishment;
    (C) The Department of Veterans Affairs Regional Office nearest the 
contractor's establishment (www.va.gov);
    (D) Entities funded by the Department of Labor that provide 
recruitment or training services for individuals with disabilities, 
such as the services currently provided through the Employer Assistance 
and Resource Network (EARN) (www.earnworks.com);
    (E) Local Employment Network (EN) organizations (other than the 
contractor, if the contractor is an EN) listed in the Social Security 
Administration's Ticket to Work Employment Network Directory 
(www.yourtickettowork.com/endir);
    (F) Local disability groups, organizations, or Centers for 
Independent Living (CIL) near the contractor's establishment;
    (G) Placement or career offices of educational institutions that 
specialize in the placement of individuals with disabilities; and
    (H) Private recruitment sources, such as professional organizations 
or employment placement services that specialize in the placement of 
individuals with disabilities.
    (ii) The contractor should also consider taking the actions listed 
below to fulfill its commitment to provide equal employment 
opportunities to individuals with disabilities:
    (A) Formal briefing sessions should be held, preferably on company 
premises, with representatives from recruiting sources. Contractor 
facility tours, clear and concise explanations of current and future 
job openings, position descriptions, worker specifications, 
explanations of the company's selection process, and recruiting 
literature should be an integral part of the briefing. At any such 
briefing sessions, the company official in charge of the contractor's 
affirmative action program should be in attendance when possible. 
Formal arrangements should be made for referral of applicants, follow 
up with sources, and feedback on disposition of applicants.
    (B) The contractor's recruitment efforts at all educational 
institutions should incorporate special efforts to reach students who 
are individuals with disabilities.
    (C) An effort should be made to participate in work-study programs 
for students, trainees, or interns with disabilities. Such programs may 
be found through outreach to State and local schools and universities, 
and through EARN.
    (D) Individuals with disabilities should be made available for 
participation in career days, youth motivation programs, and related 
activities in their communities.
    (E) The contractor should take any other positive steps it deems 
necessary to attract individuals with disabilities not currently in the 
work force who have requisite skills and can be recruited through 
affirmative action measures. These individuals may be located through 
State and local agencies supported by the U.S. Department of 
Education's Rehabilitation Services Administration (RSA) (http://rsa.ed.gov/), local Ticket-to-Work Employment Networks, or local 
chapters of groups or organizations that provide services for 
individuals with disabilities.
    (F) The contractor, in making hiring decisions, should consider 
applicants who are known to have disabilities for all available 
positions for which they may be qualified when the position(s) applied 
for is unavailable.
    (3) Assessment of external outreach and recruitment efforts. The 
contractor shall, on an annual basis, review the outreach and 
recruitment efforts it has taken over the previous twelve months to 
evaluate their effectiveness in identifying and recruiting qualified 
individuals with disabilities. The contractor shall document each 
evaluation, including at a minimum the criteria it used to evaluate the 
effectiveness of each effort and the contractor's conclusion as to 
whether each effort was effective. Among these criteria shall be the 
data collected pursuant to paragraph (k) of this section for the 
current year and the two most recent previous years. The contractor's 
conclusion as to the effectiveness of its outreach efforts must be 
reasonable as determined by OFCCP in light of these regulations. If the 
contractor concludes the totality of its efforts were not effective in 
identifying and recruiting qualified individuals with disabilities, it 
shall identify and implement alternative efforts listed in paragraphs 
(f)(1) or (f)(2) of this section in order to fulfill its obligations.
    (4) Recordkeeping obligation. The contractor shall document all 
activities it undertakes to comply with the obligations of this 
section, and retain these documents for a period of three (3) years.
    (g) Internal dissemination of policy. (1) A strong outreach program 
will be ineffective without adequate internal

[[Page 58745]]

support from supervisory and management personnel and other employees. 
In order to assure greater employee cooperation and participation in 
the contractor's efforts, the contractor shall develop the internal 
procedures listed in paragraph (g)(2) of this section for communication 
of its obligation to engage in affirmative action efforts to employ and 
advance in employment qualified individuals with disabilities. It is 
not contemplated that the contractor's activities will be limited to 
those listed. These procedures shall be designed to foster 
understanding, acceptance and support among the contractor's executive, 
management, supervisory, and other employees and to encourage such 
persons to take the necessary actions to aid the contractor in meeting 
this obligation.
    (2) The contractor shall implement and disseminate this policy 
internally as follows:
    (i) Include it in the contractor's policy manual or otherwise make 
the policy available to employees;
    (ii) If the contractor is a party to a collective bargaining 
agreement, it shall notify union officials and/or employee 
representatives of the contractor's policy and request their 
cooperation;
    (3) The contractor is encouraged to additionally implement and 
disseminate this policy internally as follows:
    (i) Inform all employees and prospective employees of its 
commitment to engage in affirmative action to increase employment 
opportunities for individuals with disabilities. The contractor should 
periodically schedule special meetings with all employees to discuss 
policy and explain individual employee responsibilities;
    (ii) Publicize it in the company newspaper, magazine, annual report 
and other media;
    (iii) Conduct special meetings with executive, management, and 
supervisory personnel to explain the intent of the policy and 
individual responsibility for effective implementation making clear the 
chief executive officer's support for the affirmative action policy;
    (iv) Discuss the policy thoroughly in both employee orientation and 
management training programs;
    (v) Include articles on accomplishments of individuals with 
disabilities in company publications; and
    (vi) When employees are featured in employee handbooks or similar 
publications for employees, include individuals with disabilities.
    (h) Audit and reporting system. (1) The contractor shall design and 
implement an audit and reporting system that will:
    (i) Measure the effectiveness of the contractor's affirmative 
action program;
    (ii) Indicate any need for remedial action;
    (iii) Determine the degree to which the contractor's objectives 
have been attained;
    (iv) Determine whether known individuals with disabilities have had 
the opportunity to participate in all company sponsored educational, 
training, recreational, and social activities;
    (v) Measure the contractor's compliance with the affirmative action 
program's specific obligations; and
    (vi) Document the actions taken to comply with the obligations of 
paragraphs (h)(1)(i) through (v) of this section, and retain these 
documents as employment records subject to the recordkeeping 
requirements of Sec.  60-741.80.
    (2) Where the affirmative action program is found to be deficient, 
the contractor shall undertake necessary action to bring the program 
into compliance.
    (i) Responsibility for implementation. An official of the 
contractor shall be assigned responsibility for implementation of the 
contractor's affirmative action activities under this part. His or her 
identity should appear on all internal and external communications 
regarding the company's affirmative action program. This official shall 
be given necessary senior management support and staff to manage the 
implementation of this program.
    (j) Training. All personnel involved in the recruitment, screening, 
selection, promotion, disciplinary, and related processes shall be 
trained to ensure that the commitments in the contractor's affirmative 
action program are implemented.
    (k) Data collection analysis. The contractor shall document the 
following computations or comparisons pertaining to applicants and 
hires on an annual basis and maintain them for a period of three (3) 
years:
    (1) The number of applicants who self-identified as individuals 
with disabilities pursuant to Sec.  60-741.42(a), or who are otherwise 
known to be individuals with disabilities;
    (2) The total number of job openings and total number of jobs 
filled;
    (3) The total number of applicants for all jobs;
    (4) The number of applicants with disabilities hired; and
    (5) The total number of applicants hired.


Sec.  60-741.45  Utilization goals.

    The utilization goal is not a rigid and inflexible quota which must 
be met, nor is it to be considered either a ceiling or a floor for the 
employment of particular groups. Quotas are expressly forbidden.
    (a) Goal. OFCCP has established a utilization goal of 7 percent for 
employment of qualified individuals with disabilities for each job 
group in the contractor's workforce, or for the contractor's entire 
workforce as provided in paragraph (d)(2)(i) of this section.
    (b) Purpose. The purpose of the utilization goal is to establish a 
benchmark against which the contractor must measure the representation 
of individuals within each job group in its workforce, or within the 
contractor's entire workforce as provided in paragraph (d)(2)(i) of 
this section. The utilization goal serves as an equal employment 
opportunity objective that should be attainable by complying with all 
aspects of the affirmative action requirements of this part.
    (c) Periodic review of goal. The Director of OFCCP shall 
periodically review and update, as appropriate, the utilization goal 
established in paragraph (a) of this section.
    (d) Utilization analysis--(1) Purpose. The utilization analysis is 
designed to evaluate the representation of individuals with 
disabilities in each job group within the contractor's workforce, or to 
evaluate the representation of individuals with disabilities in the 
contractor's entire workforce as provided in paragraph (d)(2)(i) of 
this section, with the utilization goal established in paragraph (a) of 
this section.
    (2) Grouping jobs for analysis. The contractor must use the same 
job groups established for utilization analyses under Executive Order 
11246, either in accordance with 41 CFR part 60-2, or in accordance 
with 41 CFR part 60-4, as appropriate, except as provided below.
    (i) Contractors with 100 or fewer employees. If a contractor has a 
total workforce of 100 or fewer employees, it need not use the jobs 
groups established for utilization analyses under Executive Order 
11246, and has the option to measure the representation of individuals 
with disabilities in its entire workforce with the utilization goal 
established in paragraph (a) of this section.
    (ii) [Reserved].
    (3) Annual evaluation. The contractor shall annually evaluate its 
utilization of individuals with disabilities in each job group, or in 
its entire workforce as provided in paragraph (d)(2)(i) of this 
section.

[[Page 58746]]

    (e) Identification of problem areas. When the percentage of 
individuals with disabilities in one or more job groups, or in a 
contractor's entire workforce as provided in paragraph (d)(2)(i) of 
this section, is less than the utilization goal established in 
paragraph (a) of this section, the contractor must take steps to 
determine whether and where impediments to equal employment opportunity 
exist. When making this determination, the contractor must assess its 
personnel processes, the effectiveness of its outreach and recruitment 
efforts, the results of its affirmative action program audit, and any 
other areas that might affect the success of the affirmative action 
program.
    (f) Action-oriented programs. The contractor must develop and 
execute action-oriented programs designed to correct any identified 
problems areas. These action-oriented programs may include the 
modification of personnel processes to ensure equal employment 
opportunity for individuals with disabilities, alternative or 
additional outreach and recruitment efforts from among those listed in 
Sec.  60-741.44 (f)(1) and (f)(2), and/or other actions designed to 
correct the identified problem areas and attain the established goal.
    (g) A contractor's determination that it has not attained the 
utilization goal established in paragraph (a) of this section in one or 
more job groups does not constitute either a finding or admission of 
discrimination in violation of this part.
    (h) The utilization goal established in paragraph (a) of this 
section shall not be used as a quota or ceiling that limits or 
restricts the employment of individuals with disabilities.


Sec.  60-741.46  Voluntary affirmative action programs for employees 
with disabilities.

    (a) The contractor is permitted to develop and implement training 
and employment for employees with disabilities. Examples include, 
developing a job training program focused on the specific needs of 
individuals with certain disabilities such as traumatic brain injury 
(TBI) or developmental disabilities and utilizing linkage agreements to 
recruit program trainees. Successful programs such as these have been 
developed by some contractors and OFCCP desires to make clear they are 
permissible, though not required.
    (1) If a contractor elects to implement a voluntary affirmative 
action program for employees with disabilities, a description of the 
program and the policies governing the program, including the name and 
title of the official responsible for the program, shall be included in 
the contractor's written affirmative action program. An annual report 
describing the contractor's activities pursuant to the program and 
identifying the outcomes achieved should also be included in the 
contractor's affirmative action program.
    (2) Disability-related information from the applicant and/or 
employee self-identification request required by Sec.  60-741.42 may be 
used to identify individuals with disabilities who are eligible to 
benefit from a voluntary affirmative action program for employees with 
disabilities.
    (b) The contractor shall not use such programs to segregate 
individuals with disabilities or to limit or restrict the employment 
opportunities of any individual with a disability.
    (c) The contractor shall not discriminate against an individual 
with a disability who has participated in a voluntary affirmative 
action program for employees with disabilities with respect to any 
term, condition, or benefit of employment, including, but not limited 
to, employment acts such as compensation, promotion, and termination, 
that are listed in Sec.  60-741.20.
    (d) These voluntary training and development programs should not 
result in discrimination against other groups and do not relieve a 
contractor from liability for discrimination under this act, Executive 
Order 11246, or the Vietnam Era Vetrans' Readjustment Assistance Act.


Sec.  60-741.47  Sheltered workshops.

    Contracts with sheltered workshops do not constitute affirmative 
action in lieu of employment and advancement of qualified individuals 
with disabilities in the contractor's own work force. Contracts with 
sheltered workshops may be included within an affirmative action 
program if the sheltered workshop trains employees for the contractor 
and the contractor is obligated to hire trainees at full compensation 
when such trainees become ``qualified individuals with disabilities.''

Subpart D--General Enforcement and Complaint Procedures


Sec.  60-741.60  Compliance evaluations.

    (a) OFCCP may conduct compliance evaluations to determine if the 
contractor is taking affirmative action to employ, advance in 
employment, and otherwise treat qualified individuals without 
discrimination on the basis of disability in all employment practices. 
A compliance evaluation may consist of any one or any combination of 
the following investigative procedures:
    (1) Compliance review. A comprehensive analysis and evaluation of 
the hiring and employment practices of the contractor, the written 
affirmative action program, and the results of the affirmative action 
efforts undertaken by the contractor. A compliance review may proceed 
in three stages:
    (i) A desk audit of the written affirmative action program and 
supporting documentation to determine whether all elements required by 
the regulations in this part are included, whether the affirmative 
action program meets agency standards of reasonableness, and whether 
the affirmative action program and supporting documentation satisfy 
agency standards of acceptability. OFCCP may extend the temporal scope 
of the desk audit beyond that set forth in the scheduling letter if 
OFCCP deems it necessary to carry out its investigation of potential 
violations of this part. The desk audit is conducted at OFCCP offices;
    (ii) An on-site review is conducted at the contractor's 
establishment to investigate unresolved problem areas identified in the 
affirmative action program and supporting documentation during the desk 
audit, to verify that the contractor has implemented the affirmative 
action program and has complied with those regulatory obligations not 
required to be included in the affirmative action program, and to 
examine potential instances or issues of discrimination. An on-site 
review normally will involve an examination of the contractor's 
personnel and employment policies, inspection and copying of documents 
related to employment actions, and interviews with employees, 
supervisors, managers, hiring officials; and
    (iii) Where necessary, an off-site analysis of information supplied 
by the contractor or otherwise gathered during or pursuant to the on-
site review;
    (2) Off-site review of records. An analysis and evaluation of the 
affirmative action program (or any part thereof) and supporting 
documentation, and other documents related to the contractor's 
personnel policies and employment actions that may be relevant to a 
determination of whether the contractor has complied with the 
requirements of section 503 and its regulations;
    (3) Compliance check. A determination of whether the contractor has 
maintained records consistent with Sec.  60-741.80; OFCCP may request 
the documents be provided either on-site or off-site; or

[[Page 58747]]

    (4) Focused review. A review restricted to one or more components 
of the contractor's organization or one or more aspects of the 
contractor's employment practices.
    (b) Where deficiencies are found to exist, reasonable efforts shall 
be made to secure compliance through conciliation and persuasion 
pursuant to Sec.  60-741.62.
    (c) Pre-award compliance evaluations. Each agency will include in 
the invitation for bids for each formally advertised nonconstruction 
contract or state at the outset of negotiations for each negotiated 
contract, that if the award, when let, should total $10 million or 
more, the prospective contractor and its known first-tier 
subcontractors with subcontracts of $10 million or more will be subject 
to a compliance evaluation before the award of the contract unless 
OFCCP has conducted an evaluation and found them to be in compliance 
with section 503 within the preceding 24 months. The awarding agency 
will notify OFCCP and request appropriate action and findings in 
accordance with this subsection. Within 15 days of the notice, OFCCP 
will inform the awarding agency of its intention to conduct a pre-award 
compliance evaluation. If OFCCP does not inform the awarding agency 
within that period of its intention to conduct a pre-award compliance 
evaluation, clearance shall be presumed and the awarding agency is 
authorized to proceed with the award. If OFCCP informs the awarding 
agency of its intention to conduct a pre-award compliance evaluation, 
OFCCP will be allowed an additional 20 days after the date that it so 
informs the awarding agency to provide its conclusions. If OFCCP does 
not provide the awarding agency with its conclusions within that 
period, clearance will be presumed and the awarding agency is 
authorized to proceed with the award.


Sec.  60-741.61  Complaint procedures.

    (a) Coordination with other agencies. Pursuant to section 107(b) of 
the Americans with Disabilities Act of 1990, as amended (ADA), OFCCP 
and the Equal Employment Opportunity Commission (EEOC) have promulgated 
regulations setting forth procedures governing the processing of 
complaints falling within the overlapping jurisdiction of both the act 
and title I of the ADA to ensure that such complaints are dealt with in 
a manner that avoids duplication of effort and prevents the imposition 
of inconsistent or conflicting standards. Complaints filed under this 
part will be processed in accordance with those regulations, which are 
found at 41 CFR part 60-742, and with this part.
    (b) Place and time of filing. Any applicant for employment with a 
contractor or any employee of a contractor may, personally, or by an 
authorized representative, file a written complaint with the Director 
alleging a violation of the act or the regulations in this part. The 
complaint may allege individual or class-wide violation(s). Complaints 
may be submitted to the OFCCP, 200 Constitution Avenue NW., Room C-
3325, Washington, DC 20210, or to any OFCCP regional, district, or area 
office. Such complaint must be filed within 300 days of the date of the 
alleged violation, unless the time for filing is extended by OFCCP for 
good cause shown.
    (c) Contents of complaints. (1) In general. A complaint must be 
signed by the complainant or his or her authorized representative and 
must contain the following information:
    (i) Name and address (including telephone number) of the 
complainant;
    (ii) Name and address of the contractor who committed the alleged 
violation;
    (iii) The facts showing that the individual has a disability, a 
record or history of a disability, or was regarded by the contractor as 
having a disability;
    (iv) A description of the act or acts considered to be a violation, 
including the pertinent dates (in the case of an alleged continuing 
violation, the earliest and most recent date that the alleged violation 
occurred should be stated); and
    (v) Other pertinent information available which will assist in the 
investigation and resolution of the complaint, including the name of 
any known Federal agency with which the employer has contracted.
    (2) Third party complaints. When a written complaint is filed by an 
authorized representative, that complaint need not identify by name the 
person on whose behalf it is filed. However, the authorized 
representative must nonetheless provide the name, address and telephone 
number of the person on whose behalf the complaint is filed to OFCCP, 
along with the other information specified in paragraph (c)(1) of this 
section. OFCCP shall verify the authorization of such complaint with 
the person on whose behalf the complaint is filed. Any such person may 
request that OFCCP keep his or her identity confidential during the 
investigation of the complaint, and OFCCP will protect the individual's 
confidentiality wherever that is possible given the facts and 
circumstances in the complaint.
    (d) Incomplete information. Where a complaint contains incomplete 
information, OFCCP shall seek the needed information from the 
complainant. If the information is not furnished to OFCCP within 60 
days of the date of such request, the case may be closed.
    (e) Investigations. The Department of Labor shall institute a 
prompt investigation of each complaint.
    (f) Resolution of matters. (1) If the complaint investigation finds 
no violation of the act or this part, or if the Director decides not to 
refer the matter to the Solicitor of Labor for enforcement proceedings 
against the contractor pursuant to Sec.  60-741.65(a)(l), the 
complainant and contractor shall be so notified. The Director, on his 
or her own initiative, may reconsider his or her determination or the 
determination of any of his or her designated officers who have 
authority to issue Notifications of Results of Investigation.
    (2) The Director will review all determinations of no violation 
that involve complaints that are not also cognizable under title I of 
the Americans with Disabilities Act.
    (3) In cases where the Director decides to reconsider the 
determination of a Notification of Results of Investigation, the 
Director shall provide prompt notification of his or her intent to 
reconsider, which is effective upon issuance, and his or her final 
determination after reconsideration to the person claiming to be 
aggrieved, the person making the complaint on behalf of such person, if 
any, and the contractor.
    (4) If the investigation finds a violation of the act or this part, 
OFCCP shall invite the contractor to participate in conciliation 
discussions pursuant to Sec.  60-741.62.


Sec.  60-741.62  Conciliation agreements.

    (a) If a compliance evaluation, complaint investigation, or other 
review by OFCCP finds a material violation of the act or this part, and 
if the contractor is willing to correct the violations and/or 
deficiencies, and if OFCCP determines that settlement on that basis 
(rather than referral for consideration of formal enforcement) is 
appropriate, a written conciliation agreement will be required. The 
agreement shall provide for such remedial action as may be necessary to 
correct the violations and/or deficiencies noted, including, where 
appropriate (but not necessarily limited to) such make whole remedies 
as back pay and retroactive seniority. The agreement shall also specify 
the time period for completion of the remedial action; the period shall 
be no longer

[[Page 58748]]

than the minimum period necessary to complete the action.
    (b) Remedial benchmarks. The remedial action referenced in 
paragraph (a) of this section may include the establishment of 
benchmarks for the contractor's outreach, recruitment, hiring, or other 
employment activities. The purpose of such benchmarks is to create a 
quantifiable method by which the contractor's progress in correcting 
identified violations and/or deficiencies can be measured.


Sec.  60-741.63  Violations of conciliation agreements.

    (a) When OFCCP believes that a conciliation agreement has been 
violated, the following procedures are applicable:
    (1) A written notice shall be sent to the contractor setting forth 
the violation alleged and summarizing the supporting evidence. The 
contractor shall have 15 days from receipt of the notice to respond, 
except in those cases in which OFCCP asserts that such a delay would 
result in irreparable injury to the employment rights of affected 
employees or applicants.
    (2) During the 15-day period the contractor may demonstrate in 
writing that it has not violated its commitments.
    (b) In those cases in which OFCCP asserts that a delay would result 
in irreparable injury to the employment rights of affected employees or 
applicants, enforcement proceedings may be initiated immediately 
without proceeding through any other requirement contained in this 
chapter.
    (c) In any proceedings involving an alleged violation of a 
conciliation agreement, OFCCP may seek enforcement of the agreement 
itself and shall not be required to present proof of the underlying 
violations resolved by the agreement.


Sec.  60-741.64  Show cause notices.

    When the Director has reasonable cause to believe that the 
contractor has violated the act or this part, he or she may issue a 
notice requiring the contractor to show cause, within 30 days, why 
monitoring, enforcement proceedings, or other appropriate action to 
ensure compliance should not be instituted. The issuance of such a 
notice is not a prerequisite to instituting enforcement proceedings 
(see Sec.  60-741.65).


Sec.  60-741.65  Enforcement proceedings.

    (a) General. (1) If a compliance evaluation, complaint 
investigation, or other review by OFCCP finds a violation of the act or 
this part, and the violation has not been corrected in accordance with 
the conciliation procedures in this part, or OFCCP determines that 
referral for consideration of formal enforcement (rather than 
settlement) is appropriate, OFCCP may refer the matter to the Solicitor 
of Labor with a recommendation for the institution of enforcement 
proceedings to enjoin the violations, to seek appropriate relief, and 
to impose appropriate sanctions, or any combination of these outcomes. 
OFCCP may seek back pay and other make whole relief for aggrieved 
individuals identified during a complaint investigation or compliance 
review. Such individuals need not have filed a complaint as a 
prerequisite to OFCCP seeking such relief on their behalf. Interest on 
back pay shall be calculated from the date of the loss and compounded 
quarterly at the percentage rate established by the Internal Revenue 
Service (IRS) for the underpayment of taxes.
    (2) In addition to the administrative proceedings set forth in this 
section, the Director may, within the limitations of applicable law, 
seek appropriate judicial action to enforce the contractual provisions 
set forth in Sec.  60-741.5, including appropriate injunctive relief.
    (b) Hearing practice and procedure. (1) In administrative 
enforcement proceedings the contractor shall be provided an opportunity 
for a formal hearing. All hearings conducted under the act and this 
part shall be governed by the Rules of Practice for Administrative 
Proceedings to Enforce Equal Opportunity Under Executive Order 11246 
contained in 41 CFR part 60-30 and the Rules of Evidence set out in the 
Rules of Practice and Procedure for Administrative Hearings Before the 
Office of Administrative Law Judges contained in 29 CFR part 18, 
subpart B: Provided, That a final administrative order shall be issued 
within one year from the date of the issuance of the recommended 
findings, conclusions, and decision of the Administrative Law Judge, or 
the submission of any exceptions and responses to exceptions to such 
decision (if any) whichever is later.
    (2) Complaints may be filed by the Solicitor, the Associate 
Solicitor for Civil Rights and Labor-Management, Regional Solicitors 
and Associate Regional Solicitors.
    (3) For the purposes of hearings pursuant to this part, references 
in 41 CFR part 60-30 to ``Executive Order 11246'' shall mean section 
503 of the Rehabilitation Act of 1973, as amended; references to 
``equal opportunity clause''' shall mean the equal opportunity clause 
published at Sec.  60-741.5; and references to ``regulations'' shall 
mean the regulations contained in this part.


Sec.  60-741.66  Sanctions and penalties.

    (a) Withholding progress payments. With the prior approval of the 
Director, so much of the accrued payment due on the contract or any 
other contract between the Government contractor and the Federal 
Government may be withheld as necessary to correct any violations of 
the provisions of the act or this part.
    (b) Termination. A contract may be canceled or terminated, in whole 
or in part, for failure to comply with the provisions of the act or 
this part.
    (c) Debarment. A contractor may be debarred from receiving future 
contracts for failure to comply with the provisions of the act or this 
part subject to reinstatement pursuant to Sec.  60-741.68. Debarment 
may be imposed for an indefinite period, or may be imposed for a fixed 
period of not less than six months, but no more than three years.
    (d) Hearing opportunity. An opportunity for a formal hearing shall 
be afforded to a contractor before the imposition of any sanction or 
penalty.


Sec.  60-741.67  Notification of agencies.

    The Director shall ensure that the heads of all agencies are 
notified of any debarments taken against any contractor.


Sec.  60-741.68  Reinstatement of ineligible contractors.

    (a) Application for reinstatement. A contractor debarred from 
further contracts for an indefinite period under the act may request 
reinstatement in a letter filed with the Director at any time after the 
effective date of the debarment; a contractor debarred for a fixed 
period may make such a request following the expiration of six months 
from the effective date of the debarment. In connection with the 
reinstatement proceedings, all debarred contractors shall be required 
to show that they have established and will carry out employment 
policies and practices in compliance with the act and this part. 
Additionally, in determining whether reinstatement is appropriate for a 
contractor debarred for a fixed period, the Director also shall 
consider, among other factors, the severity of the violation which 
resulted in the debarment, the contractor's attitude towards 
compliance, the contractor's past compliance history, and whether the 
contractor's reinstatement would impede the effective enforcement of 
the act or this part. Before reaching a decision, the Director may 
conduct a compliance evaluation of the contractor

[[Page 58749]]

and may require the contractor to supply additional information 
regarding the request for reinstatement. The Director shall issue a 
written decision on the request.
    (b) Petition for review. Within 30 days of its receipt of a 
decision denying a request for reinstatement, the contractor may file a 
petition for review of the decision with the Secretary. The petition 
shall set forth the grounds for the contractor's objections to the 
Director's decision. The petition shall be served on the Director and 
the Associate Solicitor for Civil Rights and Labor-Management and shall 
include the decision as an appendix. The Director may file a response 
within 14 days to the petition. The Secretary shall issue the final 
agency decision denying or granting the request for reinstatement. 
Before reaching a final decision, the Secretary may issue such 
additional orders respecting procedure as he or she finds appropriate 
in the circumstances, including an order referring the matter to the 
Office of Administrative Law Judges for an evidentiary hearing where 
there is a material factual dispute that cannot be resolved on the 
record before the Secretary.


Sec.  60-741.69  Intimidation and interference.

    (a) The contractor shall not harass, intimidate, threaten, coerce, 
or discriminate against any individual because the individual has 
engaged in or may engage in any of the following activities:
    (1) Filing a complaint;
    (2) Assisting or participating in any manner in an investigation, 
compliance evaluation, hearing, or any other activity related to the 
administration of the act or any other Federal, State, or local law 
requiring equal opportunity for individuals with disabilities;
    (3) Opposing any act or practice made unlawful by the act or this 
part or any other Federal, State, or local law requiring equal 
opportunity for individuals with disabilities; or
    (4) Exercising any other right protected by the act or this part.
    (b) The contractor shall ensure that all persons under its control 
do not engage in such harassment, intimidation, threats, coercion, or 
discrimination. The sanctions and penalties contained in this part may 
be exercised by the Director against any contractor who violates this 
obligation.


Sec.  60-741.70  Disputed matters related to compliance with the act.

    The procedures set forth in the regulations in this part govern all 
disputes relative to the contractor's compliance with the act and this 
part. Any disputes relating to issues other than compliance, including 
contract costs arising out of the contractor's efforts to comply, shall 
be determined by the disputes clause of the contract.

Subpart E--Ancillary Matters


Sec.  60-741.80  Recordkeeping.

    (a) General requirements. Except as set forth in paragraph (b) of 
this section, any personnel or employment record made or kept by the 
contractor shall be preserved by the contractor for a period of two 
years from the date of the making of the record or the personnel action 
involved, whichever occurs later. However, if the contractor has fewer 
than 150 employees or does not have a Government contract of at least 
$150,000, the minimum record retention period shall be one year from 
the date of the making of the record or the personnel action involved, 
whichever occurs later, except as set forth in paragraph (b) of this 
section. Such records include, but are not necessarily limited to, 
records relating to requests for reasonable accommodation; the results 
of any physical examination; job advertisements and postings; 
applications and resumes; tests and test results; interview notes; and 
other records having to do with hiring, assignment, promotion, 
demotion, transfer, lay-off or termination, rates of pay or other terms 
of compensation, and selection for training or apprenticeship. In the 
case of involuntary termination of an employee, the personnel records 
of the individual terminated shall be kept for a period of two years 
from the date of the termination, except that contractors that have 
fewer than 150 employees or that do not have a Government contract of 
at least $150,000 shall keep such records for a period of one year from 
the date of the termination. Where the contractor has received notice 
that a complaint of discrimination has been filed, that a compliance 
evaluation has been initiated, or that an enforcement action has been 
commenced, the contractor must preserve all personnel records relevant 
to the complaint, compliance evaluation, or action until final 
disposition of the complaint, compliance evaluation or action. The term 
``personnel records relevant to the complaint, compliance evaluation, 
or action'' will include, for example, personnel or employment records 
relating to the aggrieved person and to all other employees holding 
positions similar to that held or sought by the aggrieved person and 
application forms or test papers completed by an unsuccessful applicant 
and by all other candidates for the same position as that for which the 
aggrieved person applied and was rejected.
    (b) Records with three-year retention requirement. Records required 
by Sec.  60-741.44(f)(4) and (k) shall be maintained by all contractors 
for a period of three years from the date of the making of the record.
    (c) Failure to preserve records. Failure to preserve complete and 
accurate records as required by this part constitutes noncompliance 
with the contractor's obligations under the act and this part. Where 
the contractor has destroyed or failed to preserve records as required 
by this section, there may be a presumption that the information 
destroyed or not preserved would have been unfavorable to the 
contractor: Provided, That this presumption shall not apply where the 
contractor shows that the destruction or failure to preserve records 
results from circumstances that are outside of the contractor's 
control.


Sec.  60-741.81  Access to records.

    Each contractor shall permit access during normal business hours to 
its places of business for the purpose of conducting on-site compliance 
evaluations and complaint investigations and inspecting and copying 
such books, accounts, and records, including electronic records, and 
any other material OFCCP deems relevant to the matter under 
investigation and pertinent to compliance with the act or this part. 
Contractors must also provide OFCCP access to these materials, 
including electronic records, off-site for purposes of conducting 
compliance evaluations and complaint investigations. Upon request, the 
contractor must provide OFCCP information about all format(s), 
including specific electronic formats, in which the contractor 
maintains its records and other information. The contractor must 
provide records and other information in any of the formats in which 
they are maintained, as selected by OFCCP. Information obtained in this 
manner shall be used only in connection with the administration of the 
act, the Americans with Disabilities Act of 1990, as amended (ADA), and 
in furtherance of the purposes of the act and the ADA. OFCCP will treat 
records provided by the contractor to OFCCP under this section as 
confidential to the maximum extent the information is exempt from 
public disclosure under the Freedom of Information Act, 5 U.S.C. 552.

[[Page 58750]]

Sec.  60-741.82  Labor organizations and recruiting and training 
agencies.

    (a) Whenever performance in accordance with the equal opportunity 
clause or any matter contained in the regulations in this part may 
necessitate a revision of a collective bargaining agreement, the labor 
organizations which are parties to such agreement shall be given an 
adequate opportunity to present their views to OFCCP.
    (b) OFCCP shall use its best efforts, directly or through 
contractors, subcontractors, local officials, vocational rehabilitation 
facilities, and all other available instrumentalities, to cause any 
labor organization, recruiting and training agency, or other 
representative of workers who are employed by a contractor to cooperate 
with, and to assist in, the implementation of the purposes of the act.


Sec.  60-741.83  Rulings and interpretations.

    Rulings under or interpretations of the act and this part shall be 
made by the Director.

Appendix A to Part 60-741--Guidelines on a Contractor's Duty To Provide 
Reasonable Accommodation

    The guidelines in this appendix are in large part derived from, 
and are consistent with, the discussion regarding the duty to 
provide reasonable accommodation contained in the Interpretive 
Guidance on title I of the Americans with Disabilities Act, as 
amended (ADA), set out as an appendix to the regulations issued by 
the Equal Employment Opportunity Commission (EEOC) implementing the 
ADA (29 CFR part 1630). Although the following discussion is 
intended to provide an independent ``free-standing'' source of 
guidance with respect to the duty to provide reasonable 
accommodation under this part, to the extent that the EEOC appendix 
provides additional guidance which is consistent with the following 
discussion, it may be relied upon for purposes of this part as well. 
See Sec.  60-741.1(c). Contractors are obligated to provide 
reasonable accommodation and to take affirmative action. Reasonable 
accommodation under section 503, like reasonable accommodation 
required under the ADA, is a part of the nondiscrimination 
obligation. See EEOC appendix cited in this paragraph. Affirmative 
action is unique to section 503, and includes actions above and 
beyond those required as a matter of nondiscrimination. An example 
of this is the requirement discussed in paragraph 2 of this appendix 
that a contractor shall make an inquiry of an employee with a known 
disability who is having significant difficulty performing his or 
her job.
    1. A contractor is required to make reasonable accommodations to 
the known physical or mental limitations of a qualified individual 
with a disability, unless the contractor can demonstrate that the 
accommodation would impose an undue hardship on the operation of its 
business. As stated in Sec.  60-741.2(r), an individual with a 
disability is qualified if he or she satisfies all the skill, 
experience, education, and other job-related selection criteria, and 
can perform the essential functions of the position with or without 
reasonable accommodation. A contractor is required to make a 
reasonable accommodation with respect to its application process if 
the individual with a disability is qualified with respect to that 
process. One is qualified within the meaning of section 503 if he or 
she is qualified for a job, except that, because of a disability, he 
or she needs a reasonable accommodation to be able to perform the 
job's essential functions.
    2. Although the contractor would not be expected to accommodate 
disabilities of which it is unaware, the contractor has an 
affirmative obligation to provide reasonable accommodation for 
applicants and employees of whose disabilities the contractor has 
actual knowledge. As stated in Sec.  60-741.42, as part of the 
contractor's affirmative action obligation, the contractor is 
required to invite applicants to inform the contractor whether the 
applicant believes that he or she is an individual with a disability 
both prior to an offer of employment, and after an offer of 
employment but before he or she begins his/her employment duties. 
That invitation also informs applicants of the contractor's 
reasonable accommodation obligation and invites individuals with 
disabilities to request any accommodation they might need. Moreover, 
Sec.  60-741.44(d) provides that if an employee with a known 
disability is having significant difficulty performing his or her 
job and it is reasonable to conclude that the performance problem 
may be related to the disability, the contractor is required to 
confidentially inquire whether the problem is disability related and 
if the employee is in need of a reasonable accommodation.
    3. An accommodation is any change in the work environment or in 
the way things are customarily done that enables an individual with 
a disability to enjoy equal employment opportunities. Equal 
employment opportunity means an opportunity to attain the same level 
of performance, or to enjoy the same level of benefits and 
privileges of employment as are available to the average similarly 
situated employee without a disability. Thus, for example, an 
accommodation made to assist an employee with a disability in the 
performance of his or her job must be adequate to enable the 
individual to perform the essential functions of the position. The 
accommodation, however, does not have to be the ``best'' 
accommodation possible, so long as it is sufficient to meet the job-
related needs of the individual being accommodated. There are three 
areas in which reasonable accommodations may be necessary: (1) 
Accommodations in the application process; (2) accommodations that 
enable employees with disabilities to perform the essential 
functions of the position held or desired; and (3) accommodations 
that enable employees with disabilities to enjoy equal benefits and 
privileges of employment as are enjoyed by employees without 
disabilities.
    4. The term ``undue hardship'' refers to any accommodation that 
would be unduly costly, extensive, substantial, or disruptive, or 
that would fundamentally alter the nature or operation of the 
contractor's business. The contractor's claim that the cost of a 
particular accommodation will impose an undue hardship requires a 
determination of which financial resources should be considered--
those of the contractor in its entirety or only those of the 
facility that will be required to provide the accommodation. This 
inquiry requires an analysis of the financial relationship between 
the contractor and the facility in order to determine what resources 
will be available to the facility in providing the accommodation. If 
the contractor can show that the cost of the accommodation would 
impose an undue hardship, it would still be required to provide the 
accommodation if the funding is available from another source (e.g., 
a State vocational rehabilitation agency) or if Federal, State, or 
local tax deductions or tax credits are available to offset the cost 
of the accommodation. In the absence of such funding, the individual 
with a disability must be given the option of providing the 
accommodation or of paying that portion of the cost which 
constitutes the undue hardship on the operation of the business.
    5. The definition for ``reasonable accommodation'' in Sec.  60-
741.2(s) lists a number of examples of the most common types of 
accommodations that the contractor may be required to provide. There 
are a number of specific accommodations that may be appropriate for 
particular situations. The discussion in this appendix is not 
intended to provide an exhaustive list of required accommodations 
(as no such list would be feasible); rather, it is intended to 
provide general guidance regarding the nature of the obligation. The 
decision as to whether a reasonable accommodation is appropriate 
must be made on a case-by-case basis. The contractor generally 
should consult with the individual with a disability in deciding on 
the appropriate accommodation; frequently, the individual will know 
exactly what accommodation he or she will need to perform 
successfully in a particular job, and may suggest an accommodation 
which is simpler and less expensive than the accommodation the 
contractor might have devised. Other resources to consult include 
the appropriate State vocational rehabilitation services agency, the 
Equal Employment Opportunity Commission (1-800-669-4000 (voice) or 
1-800-669-6820 (TTY)), the Job Accommodation Network (JAN)--a 
service of the U.S. Department of Labor's Office of Disability 
Employment Policy (1-800-526-7234 (voice) or 1-877-781-9403 (TTY)), 
private disability organizations, and other employers.
    6. With respect to accommodations that can permit an employee 
with a disability to perform essential functions successfully, a 
reasonable accommodation may require the contractor to, for 
instance, modify or acquire equipment. For those visually-impaired, 
such accommodations may include providing adaptive hardware and 
software for computers, electronic visual aids, Braille writers, 
talking calculators, magnifiers, audio recordings, and Braille or 
large print materials. For persons with hearing

[[Page 58751]]

impairments, reasonable accommodations may include providing 
telephone handset amplifiers, telephones compatible with hearing 
aids, and TTY machines. For persons with limited physical dexterity, 
the obligation may require the provision of telephone headsets, 
mechanical page turners, and raised or lowered furniture.
    7. Other reasonable accommodations of this type may include 
providing personal assistants such as a reader, interpreter, or 
travel attendant, permitting the use of accrued paid leave or 
providing additional unpaid leave for necessary treatment. The 
contractor may also be required to make existing facilities readily 
accessible to and usable by individuals with disabilities--including 
areas used by employees for purposes other than the performance of 
essential job functions--such as restrooms, break rooms, cafeterias, 
lounges, auditoriums, libraries, parking lots, and credit unions. 
This type of accommodation will enable employees to enjoy equal 
benefits and privileges of employment as are enjoyed by employees 
who do not have disabilities.
    8. Another of the potential accommodations listed in Sec.  60-
741.2(s) is job restructuring. This may involve reallocating or 
redistributing those nonessential, marginal job functions which a 
qualified individual with a disability cannot perform to another 
position. Accordingly, if a clerical employee is occasionally 
required to lift heavy boxes containing files, but cannot do so 
because of a disability, this task may be reassigned to another 
employee. The contractor, however, is not required to reallocate 
essential functions, i.e., those functions that the individual who 
holds the job would have to perform, with or without reasonable 
accommodation, in order to be considered qualified for the position. 
For instance, the contractor that has a security guard position 
which requires the incumbent to inspect identity cards would not 
have to provide a blind individual with an assistant to perform that 
duty; in such a case, the assistant would be performing an essential 
function of the job for the individual with a disability. Job 
restructuring may also involve allowing part-time or modified work 
schedules. For instance, flexible or adjusted work schedules could 
benefit individuals with disabilities who cannot work a standard 
schedule because of the need to obtain medical treatment, or 
individuals with mobility impairments who depend on a public 
transportation system that is not accessible during the hours of a 
standard schedule.
    9. Reasonable accommodation may also include reassignment to a 
vacant position. In general, reassignment should be considered only 
when accommodation within the individual's current position would 
pose an undue hardship. Reassignment is not required for applicants. 
However, in making hiring decisions, contractors are encouraged to 
consider known applicants with disabilities for all available 
positions for which they may be qualified when the position(s) 
applied for is unavailable. Reassignment may not be used to limit, 
segregate, or otherwise discriminate against employees with 
disabilities by forcing reassignments to undesirable positions or to 
designated offices or facilities. Employers should reassign the 
individual to an equivalent position in terms of pay, status, etc., 
if the individual is qualified, and if the position is vacant within 
a reasonable amount of time. A reasonable amount of time should be 
determined in light of the totality of the circumstances.
    10. The contractor may reassign an individual to a lower graded 
position if there are no accommodations that would enable the 
employee to remain in the current position and there are no vacant 
equivalent positions for which the individual is qualified with or 
without reasonable accommodation. The contractor may maintain the 
reassigned individual with a disability at the salary of the higher 
graded position, and must do so if it maintains the salary of 
reassigned employees who are not disabled. It should also be noted 
that the contractor is not required to promote an individual with a 
disability as an accommodation.
    11. With respect to the application process, appropriate 
accommodations may include the following: (1) Providing information 
regarding job vacancies in a form accessible to those with vision or 
hearing impairments (e.g., by making an announcement available in 
Braille, in large print, or on audio tape, or by responding to job 
inquiries via TTY); (2) providing readers, interpreters and other 
similar assistance during the application, testing and interview 
process; (3) appropriately adjusting or modifying employment-related 
examinations (e.g., extending regular time deadlines, allowing a 
blind person or one with a learning disorder such as dyslexia to 
provide oral answers for a written test, and permitting an 
applicant, regardless of the nature of his or her disability to 
demonstrate skills through alternative techniques and utilization of 
adapted tools, aids and devices); and (4) ensuring an applicant with 
a mobility impairment full access to testing locations such that the 
applicant's test scores accurately reflect the applicant's skills or 
aptitude rather than the applicant's mobility impairment.

Appendix B to Part 60-741--Developing Reasonable Accommodation 
Procedures

    As stated in Sec. Sec.  60-741.21(a)(6) and 60-741.44(d), the 
development and use of written procedures for processing requests 
for reasonable accommodation is a best practice. This Appendix 
provides guidance contractors may wish to use should they decide to 
adopt this best practice. As stated in the regulations, contractors 
are not required to use written reasonable accommodation procedures, 
and the failure to use such procedures will not result in a finding 
of violation.
    1. Designation of responsible official. The contractor should 
designate an official to be responsible for the implementation of 
the reasonable accommodation procedures. The responsible official 
may be the same official who is responsible for the implementation 
of the contractor's affirmative action program. The responsible 
official should have the authority, resources, support, and access 
to top management that is needed to ensure the effective 
implementation of the reasonable accommodation procedures. The name, 
title/office, and contact information (telephone number and email 
address) of the responsible official should be included in the 
reasonable accommodation procedures, and should be updated when 
changes occur.
    2. Description of process. The contractor's reasonable 
accommodation procedures should contain a description of the steps 
the contractor takes when processing a reasonable accommodation 
request, including the process by which the contractor renders a 
final determination on the accommodation request. If specific 
information must be provided to the contractor in order to obtain a 
reasonable accommodation, the description should identify this 
information. For example, the contractor's reasonable accommodation 
procedures may state that to obtain a reasonable accommodation, the 
contractor must be informed of the existence of a disability, the 
disability-related limitation(s) or workplace barrier(s) that needs 
to be accommodated, and, if known, the desired reasonable 
accommodation. The description should also indicate that, if the 
need for accommodation is not obvious, or if additional information 
is needed, the contractor may initiate an interactive process with 
the accommodation requester.
    3. Form of requests for reasonable accommodation. The reasonable 
accommodation procedures should specify that a request for 
reasonable accommodation may be oral or written and should explain 
that there are no required ``magic words'' that must be used by the 
requester to request an accommodation. The procedures should also 
state that requests for reasonable accommodation may be made by an 
applicant, employee, or by a third party, such as a relative, job 
coach, or friend, on his or her behalf.
    4. Submission of reasonable accommodation requests by employees. 
The reasonable accommodation procedures should identify to whom an 
employee (or a third party acting on his or her behalf) must submit 
an accommodation request. At a minimum, this should include any 
supervisor or management official in the employee's chain of 
command, and the official responsible for the implementation of the 
reasonable accommodation procedures.
    5. Recurring requests for a reasonable accommodation. The 
reasonable accommodation procedures should provide that in instances 
of a recurring need for an accommodation (e.g., a hearing impaired 
employee's need for a sign language interpreter for meetings) the 
requester will not be required to repeatedly submit or renew their 
request for accommodation each time the accommodation is needed. In 
the absence of a reasonable belief that the individual's recurring 
need for the accommodation has changed, requiring the repeated 
submission of a request for the accommodation could be considered 
harassment on the basis of disability in violation of this part.
    6. Supporting medical documentation. The reasonable 
accommodation procedures

[[Page 58752]]

should explain the circumstances, if any, under which the contractor 
may request and review medical documentation in support of a request 
for reasonable accommodation. The procedures should explain that any 
request for medical documentation may not be open ended, and must be 
limited to documentation of the individual's disability and the 
functional limitations for which reasonable accommodation is sought. 
The procedures should also explain that the submission of medical 
documentation is not required when the disability for which a 
reasonable accommodation is sought is known or readily observable 
and the need for accommodation is known or obvious.
    7. Written confirmation of receipt of request. The reasonable 
accommodation procedures should specify that written confirmation of 
the receipt of a request for reasonable accommodation will be 
provided to the requester, either by letter or email. The written 
confirmation should include the date the accommodation request was 
received, and be signed by the authorized decisionmaker or his or 
her designee.
    8. Timeframe for processing requests. The reasonable 
accommodation procedures should state that requests for 
accommodation will be processed as expeditiously as possible. Oral 
requests for reasonable accommodation should be considered received 
on the date they are initially made, even if the contractor has a 
reasonable accommodation request form that has not been completed. 
Requests for reasonable accommodation must be processed within a 
reasonable period of time. What constitutes a reasonable period of 
time will depend upon the specific circumstances. However, in 
general, if supporting medical documentation is not needed, that 
timeframe should not be longer than 5 to 10 business days. If 
supporting medical documentation is needed, or if special equipment 
must be ordered, that timeframe should not exceed 30 calendar days, 
unless there are extenuating circumstances beyond the control of the 
contractor. The procedures should explain what constitutes 
extenuating circumstances. However, reasonable accommodations may 
need to be provided even more expeditiously for applicants. See the 
discussion of accommodation requests from applicants in section 10, 
below.
    9. Delay in responding to request. If the contractor's 
processing of an accommodation request will exceed established 
timeframes, written notice should be provided to the requester. The 
notice should include the reason(s) for the delay and a projected 
date of response. The notice should also be dated and signed by the 
authorized decisionmaker or his or her designee.
    10. Reasonable accommodation requests by applicants. The 
reasonable accommodation procedures should include procedures to 
ensure that all applicants, including those using the contractor's 
online or other electronic application system, are made aware of the 
contractor's reasonable accommodation obligation and are invited to 
request any reasonable accommodation needed to participate fully in 
the application process. All applicants should also be provided with 
contact information for contractor staff able to assist the 
applicant, or his or her representative, in making a request for 
accommodation. The contractor's procedures should provide that 
reasonable accommodation requests by or on behalf of an applicant 
are processed expeditiously, using timeframes tailored to the 
application process.
    11. Denial of reasonable accommodation. The contractor's 
reasonable accommodation procedures should specify that any denial 
or refusal to provide a requested reasonable accommodation will be 
provided in writing. The written denial should include the reason 
for the denial and be dated and signed by the authorized 
decisionmaker or his or her designee. If the contractor provides an 
internal appeal or reconsideration process, the written denial 
should inform the requester about this process.
    12. Confidentiality. The contractor's reasonable accommodation 
procedures should indicate that all requests for reasonable 
accommodation, related documentation (such as request confirmation 
receipts, requests for additional information, and decisions 
regarding accommodation requests), and any medical or disability-
related information provided to the contractor will be treated as 
confidential medical records and maintained in a separate medical 
file, in accordance with section 503 and this part.
    13. Dissemination of procedures to employees. The contractor 
should disseminate its written reasonable accommodation procedures 
to all employees. Notice of the reasonable accommodation procedures 
may be provided by their inclusion in an employee handbook that is 
disseminated to all employees and/or by email or electronic posting 
on a company Web page where work-related notices are ordinarily 
posted. Notice of the reasonable accommodation procedures should be 
provided to employees who work off-site in the same manner that 
notice of other work-related matters is ordinarily provided to these 
employees.
    14. Training. The contractor should provide annual training for 
its supervisors and managers regarding the implementation of the 
reasonable accommodation procedures. Training should also be 
provided whenever significant changes are made to the reasonable 
accommodation procedures. Training regarding the reasonable 
accommodation procedures may be provided in conjunction with other 
required equal employment opportunity or affirmative action 
training.

[FR Doc. 2013-21228 Filed 9-23-13; 8:45 am]
BILLING CODE 4510-45-P