§ 1534.4 - Procedures for determination of compliance or noncompliance and for conciliation.

(a) This Section governs how the OFI will process cases of possible non-compliance, whether generated through compliance review or complaint investigation, initiated under §§ 1534.2 and 1534.3 respectively.

(b) Upon finding reasonable cause to believe that there is noncompliance, during compliance review, or upon initiating investigation, after receipt of a complaint, the OFI will first notify the potentially noncompliant recipient, contractor, or subcontractor of the following:

(1) A request for pertinent information and data;

(2) A statement of the practices to be reviewed, and the programs or activities affected by the compliance review or complaint investigation;

(3) An opportunity to respond in writing:

(i) To explain, support, or otherwise address the practices to be reviewed or

(ii) To rebut or deny the allegations made in the complaint; and

(4) The schedule for review or investigation, including formal on-site review or investigation to commence 15 calendar days after the notice.

(c) Within 30 calendar days of completion of the formal on-site review or investigation (which itself will be conducted expeditiously by the OFI but under no set timetable), conducted as per paragraph (b)(4) of this section, the OFI will notify the pertinent recipient, contractor, or subcontractor in writing of:

(1) Preliminary findings as to compliance or noncompliance; any complainant will receive notice of the preliminary findings;

(2) Where appropriate, recommendations for achieving voluntary compliance;

(3) The opportunity to request that the OFI engage in voluntary compliance negotiations (to be completed within 20 calendar days of this written notice) prior to a final determination of compliance or noncompliance; and

(4) Where a contractor or subcontractor alone appears to be in possible noncompliance, the obligation on the part of the appropriate recipient (after notice of the preliminary finding directed to the contractor or subcontractor) to assist the OFI in achieving voluntary compliance, failure for which may also be processed through these procedures to determine noncompliance with these regulations.

(d) The OFI will render a final determination as to compliance or noncompliance within 45 calendar days of notice given under paragraph (c) of this section.

(1) A final determination of noncompliance will be made in the following situations:

(i) The preliminary recommendation for voluntary compliance is not followed;

(ii) Voluntary compliance is not secured; or

(iii) The preliminary finding of noncompliance is not shown to be false.

(2) A final determination of noncompliance will contain the following provisions:

(i) A statement with specificity of how the recipient, contractor, or subcontractor has violated these regulations;

(ii) A detailed basis for this finding of noncompliance, including how the recipient, contractor, or subcontractor failed to follow the recommendations contained in the OFI's preliminary finding, rendered pursuant to paragraph (c) of this section; and

(iii) Final recommendations on remedial actions to bring the recipient, contractor, or subcontractor into compliance.

(e) Where a final determination of noncompliance has been made under paragraph (d) of this section, the OFI will so advise the pertinent recipient, contractor, subcontractor, and any complainant in writing, giving an additional 10 calendar days in which to comply voluntarily. If the recipient, contractor, or subcontractor has not so complied, the OFI will institute enforcement proceedings under § 1534.5 of this part.

(f) In cases where complaints have been filed against contractors or subcontractors only, the OFI will notify the appropriate recipient pursuant to paragraphs (b), (c) and (e) of this section.

(g) All voluntary compliance agreements, whether formed under paragraphs (c)(3) or (e) of this section, will have the following features:

(1) The agreement shall:

(i) Be in writing;

(ii) Be signed by an authorized official of the recipient, contractor, or subcontractor and by the OFI designated official;

(iii) Contain commitments regarding the precise remedial action to be taken and the dates for completion of those remedial actions, including commitments to eliminate all discriminatory practices and conditions; and

(iv) Include a provision that breach of the agreement may result in further enforcement actions by the OFI.

(2) Upon execution of the agreement, the OFI will certify compliance, conditioned upon:

(i) Performance of the commitments given under paragraph (f)(1)(iii) of this section, and

(ii) The full facts being known at the time the agreement was executed.

(h) In the case of complaints, the OFI will notify the complainant of actions taken, including:

(1) Final determination of noncompliance, and subsequent enforcement efforts;

(2) Finding of compliance;

(3) Achieving voluntary compliance through conciliation; or

(4) Closing the investigation due to complainant's failure to cooperate or provide necessary information.