[Federal Register Volume 59, Number 29 (Friday, February 11, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2535]
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[Federal Register: February 11, 1994]
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DEPARTMENT OF JUSTICE
28 CFR Part 42
[AG Order No. 1843-94]
Nondiscrimination on The Basis of Age in Federally Assisted
Programs--Implementation of The Age Discrimination Act of 1975
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: This regulation implements the Age Discrimination Act of 1975,
as amended (Act), with regard to programs receiving federal financial
assistance from the Department of Justice (Department).
The Act prohibits, subject to certain exceptions, discrimination on
the basis of age in federally assisted programs. The Act requires each
federal agency that extends financial assistance to issue an
implementing regulation. Also, pursuant to the Act, the Secretary of
Health and Human Services (HHS) has issued a general regulation to
guide federal agencies regarding their implementation of the Act. This
regulation is based upon the HHS general regulation.
EFFECTIVE DATE: February 11, 1994.
FOR FURTHER INFORMATION CONTACT:
Stewart B. Oneglia, Chief, Coordination and Review Section, Civil
Rights Division, Department of Justice, Washington, DC 20530; (202)
307-2222 (Voice) or (202) 307-7678 (TDD). This is not a toll-free
number.
SUPPLEMENTARY INFORMATION:
General
The Age Discrimination Act of 1975, as amended (42 U.S.C. 6101-
6107), covers such practices as the way in which recipients of Federal
financial assistance provide benefits and services. The Act does not
apply to employment practices, except in regard to certain programs
funded under the Job Training Partnership Act, as amended (29 U.S.C.
1501-1791j).
Unlike the Age Discrimination in Employment Act of 1967, as amended
(29 U.S.C. 621-634), the basic coverage of which is limited to persons
who are at least 40 years of age, the Age Discrimination Act applies to
any kind of age distinction. That is, the present Act applies to age-
related practices affecting children, elderly persons, or any other
persons.
This regulation applies to programs or activities receiving
financial assistance from the Department of Justice. The largest amount
of such assistance is administered by the Office of Justice Programs
(OJP), which provides staff support to and coordinates the activities
of the National Institute of Justice, the Bureau of Justice Statistics,
the Office of Juvenile Justice and Delinquency Prevention, and the
Bureau of Justice Assistance. The Office of Justice Programs includes
the Office for Victims of Crime. Other parts of the Department that
extend such assistance are the Federal Bureau of Investigation, the
Bureau of Prisons, the Drug Enforcement Administration, the National
Institute of Corrections, the Community Relations Service, the U.S.
Parole Commission, the Immigration and Naturalization Service, and the
U.S. Marshals Service. See Appendix A to subpart C of 28 CFR part 42
for a list of the Department's financial assistance programs to which
this subpart is applicable.
This regulation covers federally assisted programs or activities in
the same manner as other civil rights authorities, such as title VI of
the Civil Rights Act of 1964 (42 U.S.C. 2000d-2000d-4a), title IX of
the Education Amendments of 1972, as amended (20 U.S.C. 1681-1687), and
section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C.
794).
Standards for Determining Age Discrimination
The Act sets forth a general prohibition against age discrimination
in federally assisted programs, but the prohibition is subject to three
exceptions. The general regulation of the Secretary of HHS deals with
the nature of the exceptions (45 CFR part 90). This regulation
(Secs. 42.711-42.736) follows the substance of the HHS general
regulation.
Compliance Procedures
Section 42.731 of the regulation, which deals with the handling of
complaints, is based upon the applicable provision of the HHS general
regulation (45 CFR 90.43(c)). Section 42.731(b) of the regulation
states that a complaint may be filed by an ``aggrieved'' person.
Section 42.731(a) makes clear that this limitation is not intended to
prevent any person who has information regarding a possible violation
of this regulation from providing the information to the Department.
Complaints should be sent to the component within the Department
that is responsible for the provision of financial assistance to the
program or activity in which discrimination is alleged. Complaints
about programs or activities receiving financial assistance from OJP
(including offices coordinated by OJP) should be directed to: Director,
Office of Civil Rights Compliance, Office of Justice Programs, U.S.
Department of Justice, 633 Indiana Avenue, NW., Room 1254-B,
Washington, DC 20531.
Upon receipt of a complaint, the Department will refer it to the
Federal Mediation and Conciliation Service for mediation. If the
complaint is not resolved after mediation, the Department shall
promptly investigate it.
With regard to means of enforcement by the Department, the
provisions of the Act are similar to those of title VI of the Civil
Rights Act of 1964 (42 U.S.C. 2000d-2000d-4a), in that the basis means
of enforcement are (1) An administrative proceeding to terminate
federal financial assistance or (2) a lawsuit by the Department of
enjoin discriminatory practices. In addition, the Act expressly
authorizes lawsuits by private parties who have exhausted their
administrative remedies.
Under Sec. 42.733(b)(2) of this regulation, a final decision
terminating OJP grants to a recipient may be made by the Assistant
Attorney General, OJP, rather than by the Attorney General. This
provision is consistent with the responsibility of the Assistant
Attorney General, OJP, under the nondiscrimination provision of the
Justice System Improvement Act, as amended (42 U.S.C. 3789d(c)).
Effective Date of Prohibitions
HHS has taken the position that the Act's prohibitions became
effective on July 1, 1979. See section 304(a)(5) of the Act, as amended
(42 U.S.C. 6103(a)(5)). The Department of Justice will investigate
complaints of alleged discrimination that occurred on or after July 1,
1979, the effective date of the Age Discrimination Act, and prior to
the effective date of this regulation, to the extent that those
complaints charge violations of the statute that do not require for
their resolution the interpretive language of this regulation.
Rulemaking History
On May 19, 1980, the Department of Justice published its proposed
regulation implementing the Act (45 FR 32710). We received written
comments from two members of the public; these comments related to the
proposed section on self-evaluation (which is discussed below). We also
received comments from HHS.
Because of extended delays in the interagency review process, it
has been necessary to review the regulation in its entirety to revise
and update it. The substance of the final regulation is essentially the
same as the proposed regulation. Differences include the following:
The proposed rule indicated that it would be placed in subpart H of
part 42 of title 28 of the Code of Federal Regulations and that
sections would be numbered 28 CFR 42.600-42.636. During the intervening
years another regulation was designated subpart H of part 42 of title
28 of the Code of Federal Regulations. Accordingly, the final rule is
added as subpart I of part 42 of title 28 of the Code of Federal
Regulations and the sections are numbered 28 CFR 42.700-42.736.
Reference in the Act to the Comprehensive Employment and Training
Act was substituted for reference to the Job Training Partnership Act
of 1982. See 29 U.S.C. 1592. This change is reflected in Sec. 42.701(b)
of the final regulation.
Components of the Department providing federal financial assistance
have changed since the proposed rule was published. There is no longer
a Law Enforcement Assistance Administration. The OJP, which includes
the Office of Victims of Crime, and which coordinates the activities of
the National Institute of Justice, the Bureau of Justice Statistics,
the Office of Juvenile Justice and Delinquency Prevention, and the
Bureau of Justice Assistance, is now the major component of the
Department through which financial assistance is provided to
recipients. This change is reflected in the final regulation.
In a number of instances in which the proposed regulation referred
to ``federally assisted program[s]'' the final regulation refers to
``program[s] or activit[ies]'' in order to track completely the
statutory language. In addition, several provisions have been revised
to incorporate a reference to the recipient's ``federally assisted
program or activity'' to clarify the scope of coverage as reflecting
the language of the statute. The definition section now includes the
definition of ``program or activity'' as provided in the Civil Rights
Restoration Act of 1987 (see 42 U.S.C. 2000d-4a).
The definition of ``Secretary,'' Sec. 42.702, has been amended to
refer to the Secretary of Health and Human Services, rather than to the
Secretary of Health, Education, and Welfare.
The examples that had been presented in the proposed regulation in
proposed Secs. 42.611-42.613 (cf. final rule, Secs. 42.711-42.713) have
been deleted. Upon review it was determined that the examples did not
enhance an understanding of the general principles articulated in those
sections.
In response to HHS's objection to the absence of a provision
pertaining to special benefits for children and elderly persons, the
final rule includes such a provision in Sec. 42.714. This section is
derived from the HHS regulation implementing the Act in HHS's own
financial assistance programs (45 CFR 90.49(c)).
Proposed Sec. 42.622, which would have required recipients to
prepare a written self-evaluation of their compliance with the
regulation, has been modified in Sec. 42.722 to follow the provisions
of HHS's regulation for HHS-assisted programs (45 CFR 91.33).
A new Sec. 42.725 has been added that establishes the obligation of
recipients to execute written assurances, as specified by the
Department, that the recipient will comply with the subpart in its
federally assisted programs and activities.
Proposed Sec. 42.631 has been amended in final Sec. 42.731, by
addition of a new subsection (a), to make clear that any person who has
information regarding a possible violation of this regulation may
provide the information to the Department.
Proposed Sec. 42.631(c) has been revised in final Sec. 42.731(d).
Section 42.731(d) continues to state that complainants and recipients
may request information from the Department concerning the complaint
process, but the reference to ``assistance'' has been deleted to
prevent a misunderstanding about the Department's role.
Proposed Sec. 42.631(d)(2), which deals with the mediation process,
has been modified in final Sec. 42.731(e)(2) to conform to the general
regulation of HHS (45 CFR 90.43(c)(3)(ii)).
The Department has added an appendix (Appendix A) that provides a
cross-reference to federal financial assistance administered by the
Department to which this subpart applies.
In addition, pursuant to the HHS general regulations (45 CFR
90.31(f)), the Department has added an appendix (Appendix B) that
describes age distinctions provided in federal statutes or Department
regulations affecting financial assistance administered by the
Department.
Regulatory Analysis
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule does not have a significant adverse economic impact on a
substantial number of small entities. This rule is not considered to be
a major rule within the meaning of section 1(b) of E.O. 12291, nor does
that rule have federalism implications warranting the preparation of a
Federalism Assessment in accordance with section 6 of E.O. 12612.
List of Subjects in 28 CFR Part 42
Administrative practice and procedure, Age discrimination, Blind,
Buildings and facilities, Civil rights, Employment, Equal educational
opportunity, Equal employment opportunity, Government employees, Grant
programs, Disabled, Religious discrimination, Sex discrimination.
Dated: January 31, 1994.
Accordingly, part 42 of title 28 of the Code of Federal Regulations
is amended by adding subpart I to read as follows:
Janet Reno,
Attorney General.
PART 42--NONDISCRIMINATION; EQUAL EMPLOYMENT OPPORTUNITY; POLICIES
AND PROCEDURES
Subpart I--Nondiscrimination on the Basis of Age in Federally Assisted
Programs and Activities; Implementation of the Age Discrimination Act
of 1975
Sec.
General Provisions
42.700 Purpose.
42.701 Application.
42.702 Definitions.
42.703-42.709 [Reserved]
Standards for Determining Age Discrimination
42.710 General prohibition.
42.711 Exception; authorized by law.
42.712 Exception; normal operation or statutory objective.
42.713 Exception; reasonable factors other than age.
42.714 Special benefits.
42.715 Burden of proof regarding exceptions.
42.716-42.719 [Reserved]
Duties of Recipients
42.720 General responsibility.
42.721 Notice to subrecipients.
42.722 Recipient assessment of age distinctions.
42.723 Compliance information.
42.724 Remedial and affirmative action.
42.725 Assurance of compliance.
42.726-42.729 [Reserved]
Compliance Procedures
42.730 Compliance reviews.
42.731 Complaints.
42.732 Prohibition against intimidation.
42.733 Enforcement procedures.
42.734 Alternative funding.
42.735 Judicial review.
42.736 Private lawsuits.
42.737-42.799 [Reserved]
Appendix A to Subpart I of Part 42--Federal Financial Assistance
Administered by the Department of Justice to Which This Subpart
Applies
Appendix B to Subpart I of Part 42--Age Distinctions in Federal
Statutes or Regulations Affecting Financial Assistance Administered
by the Department of Justice
Subpart I--Nondiscrimination on the Basis of Age in Federally
Assisted Programs and Activities; Implementation of the Age
Discrimination Act of 1975
Authority: 42 U.S.C. 6103(a)(4); 45 CFR Part 90.
General Provisions
Sec. 42.700 Purpose.
(a) This subpart implements the Age Discrimination Act of 1975, as
amended (42 U.S.C. 5101-6107) (Act). Subject to certain exceptions, the
Act prohibits discrimination on the basis of age in programs or
activities receiving federal financial assistance.
(b) The Secretary of Health and Human Services has issued a general
regulation (45 CFR Part 90) to guide other federal agencies regarding
implementation of the Act. This subpart is generally based upon that
general regulation.
Sec. 42.701 Application.
(a) This subpart applies to each program or activity that receives
federal financial assistance from the Department of Justice.
(b) This subpart does not apply to employment practices, except to
those occurring in programs that receive federal financial assistance
under the Job Training Partnership Act.
Sec. 42.72 Definitions.
As used in this subpart, the term:
Act means the Age Discrimination Act of 1975, as amended, 42 U.S.C.
6101-6107.
Action means any act, activity, policy, rule, standard, or method
of administration; or the use of any policy, rule, standard, or method
of administration.
Age distinction means any action using age or an age-related term.
Age-related term means a term that necessarily implies a particular
age or range of ages (e.g., ``youth,'' ``juvenile,'' ``adult,'' ``older
persons,'' but not ``student'').
Department means the Department of Justice.
Federal financial assistance means any grant, entitlement, loan,
cooperative agreement, contract (other than a procurement contract or a
contract of insurance or guaranty), or any other arrangement by which
the Department provides assistance in the form of:
(1) Funds;
(2) Services of federal personnel; or
(3) Real or personal property or any interest in or use of such
property, including--
(1) Transfers or leases of property for less than fair market value
or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of property if
the federal share of its fair market value is not returned to the
federal government.
FMCS means the Federal Mediation and Conciliation Service.
OJP means the Office of Justice Programs. OJP coordinates the work
of the Bureau of Justice Assistance, the National Institute of Justice,
the Bureau of Justice Statistics, and the Office of Juvenile Justice
and Delinquency Prevention; OJP includes the Office for Victims of
Crime.
Program or activity means all of the operations of--
(1)(i) A department, agency, special purpose district, or other
instrumentality of a state or of a local government;
(ii) The entity of such state and local government that distributes
such assistance and each such department or agency (and each other
state or local government entity) to which the assistance is extended,
in the cases of assistance to a state or local government;
(2)(i) A college, university, or other postsecondary institution,
or a public system of higher education; or
(ii) A local educational agency (as defined in section 198(a)(10)
of the Elementary and Secondary Education Act of 1965, 20 U.S.C.
2891(12)), system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) If such entity is principally engaged in the business of
providing education, health care, housing, social services, or parks
and recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities described in paragraph (1), (2), or (3) of this definition,
any part of which is extended federal financial assistance.
Recipient means any state or political subdivision, any
instrumentality of a State or political subdivision, any public or
private agency, institution, organization, or other entity, or any
person to which federal financial assistance is extended, directly or
through another recipient. ``Recipient'' includes any successor,
assignee, or transferee, but does not include the ultimate beneficiary
of the assistance.
Secretary means the Secretary of Health and Human Services or his
or her designee.
United States means the fifty States, the District of Columbia,
Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the
Trust Territory of the Pacific Islands, the Northern Marinas, and the
territories and possessions of the United States.
Secs. 42.703-42.709 [Reserved]
Standards for Determining Age Discrimination
Sec. 42.710 General prohibition.
(a) Subject to the exceptions discussed in Secs. 42.711-42.713, no
person in the United States shall, on the basis of age, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination in any program or activity to which this subpart
applies. This prohibition applies to actions taken by a recipient,
directly or through contractual or other arrangements, that have the
purpose or effect of discriminating on the basis of age.
(b) This prohibition encompasses treatment of elderly persons,
children and any other age group. Unless one of the exception applies,
the recipient may use neither a minimum age limit nor a maximum age
limit in connection with receipt of benefits or services or other
participation in a program subject to this subpart.
Sec. 42.711 Exception; authorized by law.
(a) This subpart does not apply to an age distinction contained in
a portion of a federal or state statute or a local statute or ordinance
adopted by an elected, general-purpose legislative body which portion:
(1) Provides any benefits or assistance to persons on the basis of
age;
(2) Establishes criteria for participation in age-related terms; or
(3) Describes intended beneficiaries or target groups in age-
related terms.
(b) The exception set forth in paragraph (a) of this section does
not extend to regulations adopted by an administrative agency pursuant
to a specific statutory provision or otherwise.
Sec. 42.712 Exception; normal operation or statutory objective.
(a) A recipient may take an action that would otherwise be
prohibited by Sec. 42.710(a), if such action reasonably takes age into
account as a factor necessary to the normal operation of or the
achievement of any statutory objective of the program or activity.
(1) ``Normal operation'' refers to the operation of a program or
activity without significant changes that would impair its ability to
meet its objectives.
(2) A ``statutory objective'' of a program is a purpose that is
expressly stated in a federal or state statute or a local statute or
ordinance adopted by an elected, general-purpose body.
(b) This exception applies when the following test is met--
(1) Age is used as a measure or approximation of one or more other
characteristics;
(2) The other characteristic must be measured or approximated in
order to continue the normal operation of the program or to achieve any
statutory objective of the program;
(3) The other characteristic can be reasonably measured or
approximated by the use of age; and
(4) The other characteristic is impractical to measure directly on
an individual basis.
(c) The question whether an age distinction comes within this
section depends upon the particular facts, including the nature and
purpose of the program, the basis for and the nature and purpose of the
age distinction, and the manner in which the age distinction is used.
Sec. 42.713 Exception; reasonable factors other than age.
(a) A recipient may take an action, otherwise prohibited by
Sec. 42.710(a), that affects age groups differently, if such
differentiation is based upon reasonable factors other than age.
(b) This exception does not apply to the use of an explicit age
distinction, but to conduct that has the effect of differentiating
among age groups. This exception applies when the factor (other than
age) upon which the recipient's action is based bears a direct and
substantial relationship to the normal operation of or achievement of a
statutory objective of the program.
Sec. 42.714 Special benefits.
If a recipient operating a program provides special benefits to the
elderly or to children, such use of age distinctions shall be presumed
to be necessary to the normal operation of the program, notwithstanding
the provisions of Sec. 42.712.
Sec. 42.715 Burden of proof regarding exceptions.
The burden of proving that an age distinction or other action falls
within the exceptions described in Sec. 42.712 and Sec. 42.713 is on
the recipient. This allocation of the burden of proof applies in
proceedings by the Department to enforce the Act.
Secs. 42.716-42.719 [Reserved]
Duties of Recipients
Sec. 42.720 General responsibility.
Regarding any program subject to this subpart, the recipient has
primary responsibility to ensure compliance with the Act and this
subpart. The recipient also has responsibility to maintain records,
provide information, and to afford access to its records to the
Department to the extent required to determine whether it is in
compliance with the Act.
Sec. 42.721 Notice to subrecipients.
Any recipient that receives federal financial assistance from the
Department and extends such assistance to subrecipients shall give its
subrecipients written notice of their obligations under this subpart.
Sec. 42.722 Receipient assessment of age distinctions.
(a) As part of a compliance review under Sec. 42.730 or complaint
investigation under Sec. 42.731, the Department may require a recipient
employing the equivalent of 15 or more employees to complete a written
self-evaluation, in a manner specified by the responsible Department
official, of any age distinction imposed in its program or activity
receiving federal financial assistance from the Department to assess
the recipient's compliance with the Act.
(b) Whenever a recipient assessment indicates a violation of the
Act and this subpart, the recipient shall take corrective action.
Sec. 42.723 Compliance information.
(a) Upon request by the Department, a recipient shall make
available to the Department information necessary to determine whether
the recipient is complying with this subpart.
(b) Each recipient shall permit reasonable access by the Department
to the recipient's facilities, books, records and other sources of
information concerning the recipient's compliance with this subpart.
Sec. 42.724 Remedial and affirmative action.
(a) If the Department finds that, in violation of this subpart, a
recipient has discriminated on the basis of age, the recipient shall
take remedial action that the Department considers necessary to
overcome the effects of the discrimination.
(b) Even in the absence of a finding of discrimination, a
recipient, in administering a program, may take steps to overcome the
effects of conditions that resulted in limited participation on the
basis of age.
Sec. 42.725 Assurance of compliance.
Each recipient of federal financial assistance from the Department
shall sign a written assurance as specified by the Department that it
will comply with this subpart in its federally assisted programs and
activities.
Secs. 42.726--42.729 [Reserved]
Compliance Procedures
Sec. 42.730 Compliance reviews.
The Department may conduct a pre-award or post-award compliance
review of an applicant or a recipient to determine compliance with this
subpart. When a compliance review indicates probably noncompliance, the
Department shall inform the applicant or recipient and shall promptly
begin enforcement as described in Sec. 42.733.
Sec. 42.731 Complaints.
(a) General. This section provides for the filing, by aggrieved
persons, of complaints alleging violation of this subpart. Although the
complaint process is limited to aggrieved persons, any person who has
information regarding a possible violation of this subpart may provide
it to the Department.
(b) Receipt of complaints. (1) Any aggrieved person, individually
or as a member of a class, may file with the Department a written
complaint alleging a violation of this subpart. A complaint may be
filed by a representative of an aggrieved person. A complaint must be
filed within 180 days of the date the complaint first knew of the
alleged violation. However, this time limit may, for good cause shown,
be extended by the Department.
(2) The Department shall promptly review each such complaint for
sufficiency. A complaint will be deemed sufficient if it--
(i) Describes an action that may constitute a violation of this
subpart; and
(ii) Contains information necessary for further processing (i.e.,
identifies the parties involved, states the date when the complainant
first learned of the alleged violation, and is signed by the
complainant).
(3) When a complaint is deemed sufficient, the Department shall
promptly refer it to the FMCS for mediation.
(4) When a complaint is deemed insufficient, the Department shall
advise the complainant of the reasons for that determination. A
complainant shall be freely permitted to add information necessary for
further processing.
(c) Representation of parties. During each stage of the complaint
process, the complainant and the recipient may be represented by an
attorney or other representative.
(d) Assistance from the Department. Any complainant or recipient
may request from the Department information regarding the complaint
process.
(e) Mediation. (1) When a complaint is referred for mediation, the
complainant and the recipient shall participate in the mediation
process to the extent necessary either to reach an agreement or to
enable the mediator to determine that no agreement can be reached. No
determination that an agreement is not possible shall be made until the
mediator has conferred at least once, jointly or separately, with each
of the parties.
(2) If the complainant and the recipient reach an agreement, they
shall reduce the agreement to writing and sign it. The mediator shall
send a copy of the agreement to the Department.
(3) If, after 60 days after the Department's receipt of a
complaint, no agreement is reached or if, within that 60-day period,
the mediator determines that no agreement can be reached, the mediator
shall return the complaint to the Department.
(4) The mediator shall protect the confidentiality of information
obtained during the mediation process. No mediator shall testify in any
adjudicative proceeding, produce any document, or otherwise disclose
any information obtained during the mediation process without prior
approval of the Director of the FMCS.
(f) Department investigations. The Department shall promptly
investigate any complaint that is unresolved after mediation or is
reopened because of violation of a mediation agreement. An
investigation should include a review of the pertinent actions or
practices of the recipient and the circumstances under which the
alleged discrimination occurred. During an investigation the Department
shall take appropriate steps to obtain informal resolution of the
complaint.
(g) Resolution of matters. (1) where, prior to any finding by the
Department of probable noncompliance with this subpart, discussions
between the Department and the parties result in settlement of a
complaint, the Department shall prepare an agreement to be signed by
the parties and an authorized official of the Department. A settlement
shall not affect the operation of any other enforcement efforts of the
Department, including compliance reviews or investigation of other
complaints involving the recipient.
(2) If the Department determines that an investigation pursuant to
paragraph (f) of this section indicates probable noncompliance with
this subpart, the Department shall inform the recipient and shall
promptly begin enforcement pursuant to Sec. 42.733.
(3) If the Department determines that an investigation does not
indicate probable noncompliance, the Department shall inform the
recipient and the complainant. The Department shall also inform the
complainant of his or her right to bring a civil action as described in
Sec. 42.736.
Sec. 42.732 Prohibition against intimidation.
A recipient may not intimidate or retaliate against any person who
attempts to assert a right secured by the Act and this suppart or who
cooperates in any mediation, investigation, hearing, or other aspect of
the Department's compliance procedure.
Sec. 42.733 Enforcement procedures.
(a) Voluntary compliance. When a compliance review or complaint
investigation results in a finding of probable noncompliance with this
subpart, the Department shall attempt to obtain voluntary compliance.
An agreement for voluntary compliance shall describe the corrective
action to be taken and time limits for such action and shall be signed
by the recipient and an authorized official of the Department.
(b) Means of enforcement--(1) General. (i) The Department may seek
to enforce this subpart--
(A) By administrative proceedings that may lead to termination or
refusal of federal financial assistance to the particular program; or
(B) By any other means authorized by law. Such other means include
lawsuits by the Department of enjoin violations of this subpart.
(ii) To the extent consistent with the Act, the Department, in
enforcing this subpart, shall follow the procedures applicable to
enforcement of title VI of the Civil Rights Act of 1964.
(2) Termination of federal financial assistance. With regard to
enforcement of this subpart through the termination or refusal of
federal financial assistance, the Department shall follow the
provisions of its title VI regulation concerning notice (28 CFR
42.180(c)), hearings (28 CFR 42.109), and decisions (28 CFR 42.110).
However, with respect to programs receiving federal financial
assistance from a component of the Department's Office of Justice
Programs (OJP), the requirement of 28 CFR 42.110(e) that a sanction be
approved by the Attorney General shall not apply; that function may be
performed by the Assistant Attorney General, OJP.
(3) Other means of enforcement. With regard to enforcement of this
subpart through other means, the Department shall follow the procedures
of 28 CFR 42.108(d). In addition, at least 30 days before commencing a
lawsuit or taking other action pursuant to paragraph (b)(1)(i)(A) of
this section, the Department shall send an appropriate report to the
committees of the House of Representatives and the Senate having
legislative jurisdiction over the program involved.
(c) Deferral. When a proceeding for the termination or refusal or
federal financial assistance is initiated pursuant to paragraph
(b)(1)(i)(A) of this section, the Department may defer granting new
federal financial assistance to the recipient.
(1) New federal financial assistance includes any assistance for
which, during the deferral period, the Department requires an
application or approval, including renewal or continuation of existing
activities or authorization of new activities. New federal financial
assistance does not include assistance approved prior to initiation of
the administrative proceeding or increases in funding as a result of a
change in the manner of computing formula awards.
(2) A deferral may not begin until the recipient has received a
notice of opportunity for a hearing. A deferral may not continue for
more than 60 days unless a hearing has begun within that time or the
time for beginning the hearing has been extended by mutual consent of
the recipient and the Department. A deferral may not continue for more
than 30 days after the close of the hearing, unless the hearing results
in a finding against the recipient.
Sec. 42.734 Alternative funding.
When assistance to a recipient is terminated or refused pursuant to
Sec. 42.733(b)(1)(i)(A), the Department may disburse the withheld funds
directly to an alternate recipient serving the same area (i.e., a
public or nonprofit private organization or agency or state or
political subdivision of the state). Any such alternate recipient must
demonstrate the ability to comply with the requirements of this subpart
and to achieve the goals of the federal statute authorizing the
assistance.
Sec. 42.735 Judicial review.
A final decision of the Department in an administrative proceeding
pursuant to Sec. 42.733(b)(1)(i)(A) is subject to judicial review as
provided in section 306 of the Act, 42 U.S.C. 6105.
Sec. 42.736 Private lawsuits.
(a) Upon exhausting administrative remedies under the Act, a
complainant may file a civil action to enjoin a violation of the Act.
Administrative remedies are exhausted if--
(1) 180 days have elapsed since the complainant filed the complaint
and the Department has made no finding with regard to the complaint; or
(2) The Department issues a finding, pursuant to Sec. 42.731(g)(3),
in favor of the recipient.
(b) Whenever administrative remedies are exhausted in accord with
paragraph (a) of this section, the Department shall promptly inform the
complainant that
(1) The complainant may bring a civil action in a United States
district court for the district in which the recipient is located or
transacts business;
(2) A complainant who prevails in such an action has the right to
be awarded reasonable attorney's fees, if the complainant demands such
an award in the complaint initiating the lawsuit;
(3) Before commencing the action, the complainant must give 30
days' notice by registered mail to the Secretary, the Attorney General,
and the recipient;
(4) The notice must state the nature of the alleged violation, the
relief requested, the court in which the action will be brought, and
whether attorney's fees will be demanded; and
(5) The complainant may not bring an action if the same alleged
violation by the recipient is the subject of a pending action in any
court of the United States.
Secs. 42.737-42.799 [Reserved]
Appendix A to Subpart I of Part 42--Federal Financial Assistance
Administered by the Department of Justice to Which This Subpart
Applies
Note: Failure to list a type of federal assistance in Appendix A
shall not mean, if the Age Discrimination Act is otherwise
applicable, that a program or activity is not covered. For the text
of Appendix A to subpart I, see Appendix A to subpart C of this
part.
Appendix B to Subpart I of Part 42--Age Distinctions in Federal
Statutes or Regulations Affecting Financial Assistance Administered
by the Department of Justice
Section 90.31(f) of HHS' the general regulations (45 CFR Part
90) requires each federal agency to publish an appendix to its final
regulation containing a list of age distinctions in federal statutes
and regulations affecting financial assistance administered by the
agency. This appendix is the Department's list of federal statutes
and Department regulations that contain age distinctions that:
(1) Provide benefits or assistance to persons based upon age; or
(2) Establish criteria for participation in age-related terms;
or
(3) Describe intended beneficiaries or target groups in age-
related terms.
The Department administers financial assistance under the
Juvenile Justice and Delinquency Prevention Act of 1974, as amended
(42 U.S.C. 5601-5672). This statute reflects the basic distinction
between criminal justice systems for adults and juvenile justice
systems, and the entire statute is predicated upon making
distinctions on the basis of age between juveniles and adults. Such
age distinctions are set forth throughout this statute, including
provisions establishing programs of financial assistance to juvenile
justice systems and for purposes related to the prevention of
juvenile delinquency. The Department's current regulations
pertaining to formula grants under this statute are set forth at 28
CFR part 31 (CFDA No. 16.540). In order to implement the statutory
purposes, these regulations reflect the same age distinctions
between juveniles and adults as are contained in the statute. The
same statute also provides for discretionary special emphasis grants
for which there are program announcements issued (CFDA No. 16.541),
and this program also necessarily reflects the basic statutory
distinction based on age.
The Department is authorized to extend financial assistance
under the Missing Children's Assistance Act, as amended (42 U.S.C.
5771-5777). This law is concerned with problems related to missing
children, and, thus, it contains many age-related references to
children, including references in connection with the provision of
financial assistance. Program announcements are issued in connection
with this program (CFDA No. 16.543).
The Department is authorized to extend financial assistance
pursuant to the Omnibus Crime Control and Safe Streets Act of 1968,
as amended (42 U.S.C. 3701-3797). Among the statutory purposes of
this law is the provision of grants addressing problems related to
juvenile delinquency and problems related to crimes committed
against elderly persons. Accordingly, this law also reflects the
basic distinction between criminal justice systems for adults and
juvenile justice systems. This law also singles out elderly persons
as a special target group to benefit from its programs. The
Department's regulations concerning block grants authorized under
this statute are set forth at 28 CFR part 33. These regulations
reflect the statutory authorizations for such block grants, which
specifically authorize funds for, among other things, programs
addressing problems related to juvenile delinquency and programs
addressing the problem of crimes committed against elderly persons
(CFDA No. 16.573). Similarly, the statute provides for discretionary
grants to enhance and complement the block grants (CFDA No. 16.574)
and has been amended to provide a focus on narcotics control (CFDA
No. 16.580).
The Department is authorized to extend financial assistance
under the Victims of Crime Act of 1984, as amended (42 U.S.C. 10601-
10604). Among other things, in order to qualify for funds under one
grant program, a state must certify that priority will be given to
eligible crime victim assistance programs that help victims of
certain crimes, including child abuse. In addition, among the
services to victims of crime for which funding is available is
``short term child care services'' (CFDA Nos. 16.575 and 16.576).
The Department is authorized to make grants to Native American
Indian tribes with funds reserved to the Office of Victims of Crime
under the Victims of Crime act of 1984, as amended (42 U.S.C.
10601(g)). The primary purpose of the funding is to assist Native
American Indian tribes with handling child abuse cases, particularly
child sexual abuse (CFDA No. 16.583).
The Department is authorized to extend financial assistance to
state and local authorities for narcotics control under the Anti-
Drug Abuse Act of 1988 (Pub. L. 100-690, 102 Stat. 4181), which
extends and/or modifies each of the previously noted laws. The
statute reflects the basic distinction between criminal justice
systems for adults and juveniles (CFDA Nos. 16.579 and 16.582).
[FR Doc. 94-2535 Filed 2-10-94; 8:45 am]
BILLING CODE 4410-01-M
