[Federal Register Volume 63, Number 28 (Wednesday, February 11, 1998)]
[Rules and Regulations]
[Pages 6874-6879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3334]
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NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES
45 CFR Part 1156
Nondiscrimination on the Basis of Age
AGENCY: National Endowment for the Arts, National Foundation on the
Arts and the Humanities.
ACTION: Final rule.
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SUMMARY: The National Endowment for the Arts (NEA) is the Federal
grantmaking agency that Congress created to support the visual,
literary, design and performing arts, to benefit all Americans. The
NEA's mission is to foster the excellence, diversity and vitality of
the arts in the United States and to broaden public access to the arts.
The NEA is adopting regulations to carry out its responsibilities under
the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) (the Act).
The regulations are consistent with and reflect standards and
procedures included in general government-wide regulations issued by
the Department of Health and Human Services and published in the
Federal Register June 12, 1979, 44 FR 33768 (1979).
The Act of 1975 prohibits discrimination on the basis of age in
programs and activities receiving Federal financial assistance. The Act
also permits federally assisted programs and activities, and recipients
of Federal funds, to continue to use certain age distinctions and
factors other than age which meet the requirements of the Act and these
regulations.
DATES: Effective February 11, 1998.
FOR FURTHER INFORMATION CONTACT:
Karen Elias, Deputy General Counsel, (202) 682-5418.
SUPPLEMENTARY INFORMATION:
Background
The regulations are consistent with and reflect standards and
procedures included in general government-wide regulations issued by
the Department of Health and Human Services (HHS) and published in the
Federal Register June 12, 1979, 44 FR 33768 (1979). The Act prohibits
discrimination on the basis of age in programs and activities receiving
Federal financial assistance. The Act also permits federally assisted
programs and activities, and recipients of Federal funds, to continue
to use certain age distinctions and factors other than age which meet
the requirements of the Act and these regulations.
45 CFR Section 90.31(b) of the HHS government-wide regulations
required Federal agencies with statutory authority to extend Federal
financial assistance to issue agency regulations applicable to the
specific programs and activities administered by that agency. In
addition to publishing specific regulations consistent with HHS
government-wide regulations, the following actions are required to be
taken by the NEA in connection with implementation of the Act.
(1) An appendix is required to be included in NEA regulations
listing all age distinctions which appear in federal statutes and
regulations and effect the agency's programs of financial assistance. A
review of the National Foundation on the Arts and the Humanities Act of
1965, as amended, 20 U.S.C. 951 et seq., and NEA regulations reveals no
statutory age distinctions used by the NEA in the administration of
agency programs.
(2) As a second step in the public administration process, the NEA
must review any age distinctions it imposes on its recipients by
regulation, policy or administrative practice in order to determine
whether these distinctions are permissible under the Act. The results
of this review must be included in a report that the agency shall
publish, for public comment, in the Federal Register, no later than 12
months from the date the agency publishes its final regulations. The
NEA will conduct and publish this review no later than 12 months from
the date of the publication of its Final Rule.
(3) The NEA is required to report annually to the Congress through
HHS on its compliance and enforcement activities. The NEA regularly
files this report.
(4) The NEA is required to provide written notices to each
recipient of the recipient's obligations under the Act, to provide
technical assistance to the recipients where necessary, and to make
available educational materials explaining the rights and obligations
of beneficiaries and recipients.
(5) The NEA is required to establish a procedure for processing
complaints of age discrimination. The complaint handling procedure must
include an initial screening by the NEA and notice to complainants and
recipients of their rights and obligations in the complaint process.
All complaints which fall within the coverage of the Act will be
referred to the agency designated by the Secretary of HHS to manage the
mediation process.
(6) The NEA must review the effectiveness of its regulations 30
months after their effective date. The review is to be published in the
Federal Register with an opportunity for public comment.
The NEA received comments on its proposed rulemaking from the HHS
Office of Civil Rights. After analyzing the comments received, all
except for one of HHS's comments have been incorporated into the final
rule.
The proposed regulations listed Sections 1156.11 Notice to
Subrecipients, 1156.12 Self-Evaluation, 1156.13 Information
Requirements, 1156.15 Complaints, 1156.16 Mediation, 1156.17
Investigation, and 1156.21 Exhaustion of administrative remedies as
containing information collection requirements which must be submitted
to OMB under the Paper Reduction Act of 1980, 44 U.S.C. 5301 et seq.
(1982). HHS's conclusion that these sections do not contain information
collection requirements subject to OMB clearance was adopted for the
reasons listed below.
Section 3518(c)(1)(B) of the Paper Reduction Act exempts from OMB
approval, collections of information ``* * * during the conduct of * *
* (ii) an administrative action or investigation involving an agency
against specific individuals or entities.'' Therefore, as originally
stated in the Proposed Regulations, the NEA need not submit Sections
1156.13, 1156.16, 1156.17 and 1156.21 to OMB for approval since all
four of these requirements are tied to the agency's authority to
investigate.
Moreover, the mandatory self-evaluation requirement contained in
1156.12 of the proposed regulation requiring recipients to complete a
self-evaluation was disapproved and invalidated by OMB. NEA will,
therefore, adopt the approach used in the HHS regulations set forth at
45 CFR 91.33(b). This approach provides NEA with discretionary
authority to require a self-evaluation requirement as part of an
investigation thereby eliminating any Paperwork Reduction Act problems
because it is discretionary and tied to the authority to investigate.
Sections 1156.15 and 1156.11 are also not subject to OMB clearance
because neither provision involves a ``collection of information''
within the meaning of the Act. Section 1156.15 provides individuals
``may file'' complaints and Section 1156.11 requires notice to
subrecipients of their obligations under the Act and the regulations.
[[Page 6875]]
In accordance with HHS's comments, NEA has adopted a section on
Special Benefits added to Section 1156.7 at (c) permitting a recipient
to provide special benefits to children or the elderly provided that
the benefits do not result in the exclusion of persons who are eligible
to participate in a recipient's program.
Section 1156.1 was amended to include ``and as required by the
general age discrimination regulations at 45 CFR Part 90'' where both
the Act and the general guidelines provide authority for the
promulgation of regulations.
Section 1156.2(a) was amended to include the language ``and these
regulations'' after ``1975.'' The new section now reads ``The Age
Discrimination Act of 1975 and these regulations apply to any program
or activity receiving financial assistance from the NEA and to each
program or activity that receives or benefits from such assistance.''
Section 1156.3 defining ``action'' was amended to include the
language ``or the use of any policy, rule, standard or method of
administration.'' The new section now reads ``action means any act,
activity, policy, rule, standard or method of administration; or the
use of any policy, rule, standard, or method of administration.''
Section 1156.6 on Rules Against Age Discrimination was amended to
include the language ``[t]he rules stated in this section are limited
by the exceptions contained in Sec. 1156.7(b) and (c) of these
regulations.''
Section 1156.6(b)(1) was amended to include the word ``or'' to
clarify that either of these effects constitutes a violation.
Section 1156.11 was amended to include the words ``the Act and''
after the word ``under.'' The new section now reads ``When a recipient
passes on Federal financial assistance from the NEA to subrecipients,
the recipient shall provide the subrecipients with written notice
regarding the subrecipient's obligation under the Act and these
regulations.''
Section 1156.14 regarding ``Compliance Reviews'' was revised to
provide requirements consistent with 45 CFR Part 90. The proposed
regulation limited agency action to compliance reviews and pre-award
reviews. The language is amended to include ``and other similar
procedures to investigate and correct violations of the Act and
regulations.'' This amendment eliminates the limit on the NEA's
authority to conduct compliance reviews only where the agency has
reason to believe there may be a violation of the regulations. No
similar limitation is found in the government-wide regulations.
Section 1156.15 was amended to include the language ``the Act and''
after the language ``prohibited by.'' The second sentence requiring a
complainant to file a complaint within 180 days from the ``time'' that
the complainant first had knowledge of an alleged discriminatory act,
is clarified by stating ``180 days from the date that the complainant
first had knowledge of the alleged discriminatory act.'' Following 45
CFR 91.42(b), the language, ``[t]he Endowment will consider the date a
complaint is filed to be the date upon which the complaint is
sufficient to be processed'' is added to identify when a complaint will
be deemed filed for purposes of the 180-day requirement.
Section 1156.16(a) was amended to include ``promptly,'' after
``Endowment'' for consistency with Sec. 90.43(c)(3). After the language
``refer to,'' Section 1156.16(a) was amended to include the language
``the agency designated by the Secretary of HHS to manage the mediation
process'' and delete the language ``[f]ederal Mediation Service.''
Section 1156.16(c) was amended to include for clarity the language
``by the endowment'' after the language ``shall be taken.''
Section 1156.19(a)(1) provides that cases settled in mediation or
prior to a hearing will not involve termination of a recipient's
Federal financial assistance from the NEA. However, a case settled in
mediation could eventually go to enforcement if the recipient fails to
abide by the agreement. In addition, a recipient could fail to abide by
the provisions in a settlement agreement between the NEA and the
recipient. Section 1156.19(a)(1) also was amended to include the
language ``unless it is reopened because of a violation of the
agreement'' to accurately reflect the intent of the provision.
Section 1156.19(b) is amended to include the language ``or portion
thereof'' after ``particular program or activity'' to comply with the
language contained in the statute and in government-wide regulations.
Section 1156.19(d) was amended to include ``(a)(1)'' for the sake
of clarity.
Section 1156.19(d)(2) was amended to include ``(a)(1) after
1156.19'' for the sake of clarity.
The last sentence of Section 1156.19(d)(2) was changed from ``[i]f
a hearing results in a finding against the recipient, the Endowment
shall continue a deferral until such time as the recipient demonstrates
that it will operate in a non-discriminatory manner'' to ``[i]f the
hearing results in a finding against the recipient, the Endowment must
terminate funds.'' This language was changed because an indefinite
deferral is not authorized.
Section 1156.20(a) was amended to include ``any public or nonprofit
private organization or agency, or State or political subdivision of
the State'' after ``recipient.''
Section 1156.20(b)(2) was amended deleting the language ``the
Endowment's enabling legislation'' and adding the language ``[t]he
ability to achieve the goals of the Federal statute authorizing the
program or the activity'' from Sec. 90.48.
Section 1156.21, Remedial and Affirmative Action by Recipients was
deleted as repetitive of sections 1156.7 and 1156.19. Section 1156.21
is now Exhaustion of Administrative Remedies.
Section 1156.22(b)(3)(iii) was amended to clarify that the 30-day
notice predicate to filing a civil action must be provided to the
``Chairperson of the Arts Endowment, the Secretary, the Attorney
General of the United States, and the recipient.''
Summary of Regulation
The NEA's regulations are divided into four subparts: Subpart A--
General; Subpart B--Standards for Determining Age Discrimination;
Subpart C--Responsibilities of Endowment recipients; Subpart D--
Investigation, Conciliation and Enforcement Procedures.
Subpart A of the regulations explains the purpose of the NEA's age
discrimination regulations and sets forth general definitions. Section
1156.3(h) defines the term ``recipient.'' As indicated recipient
includes any state or its political subdivision, any instrumentality of
a state or its 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 excludes the ultimate beneficiary of the assistance. This language
points out the inapplicability of these regulations to assistance
programs administered directly by the Federal government to
beneficiaries. With respect to direct assistance programs, the
regulations may apply whenever direct aid is provided to an individual
on conditions that the aid be spent in providing services or benefits
to others. The general and specific prohibitions against discrimination
on the basis of age as well as the exceptions to those prohibitions are
set forth in Subpart B.
[[Page 6876]]
As a general rule, under the regulations, no person in the United
States shall, on the basis of age, be excluded from participation in,
be denied the benefits of, or be subject to discrimination under any
program or activity receiving NEA financial assistance.
The Act contains several exceptions which limit the general
prohibition against age discrimination. Section 304(b)(1) of the Act
permits the use of age distinctions which are based on reasonable
factors other than age. The regulations provide definitions for two
terms which are essential to an understanding of those exceptions:
``normal operation'' and ``statutory objective.'' ``Normal operation''
means the operation of a program or activity, without significant
changes that would impair its ability to meet its objectives.
``Statutory objective'' is defined to mean any purpose which is
explicitly stated in a Federal statute, State statute or local statute
or ordinance.
The regulations establish a four-part test, all parts of which must
be met for an explicit age distinction to satisfy one of the statutory
exceptions and to continue in use in a Federally assisted program. This
four-part test will be used to scrutinize age distinctions which are
imposed in the administration of NEA assisted programs, but which are
not explicitly authorized by a Federal, State or local statute.
Recipients of NEA funds also are permitted to take an action
otherwise prohibited by the Act, if the action is based on ``reasonable
factors other than age.'' In that event the action may be taken even
though it has a disproportionate effect on persons of different ages.
However, according to the regulations, the factor other than age must
bear a direct and substantial relationship to the program's normal
operation or to the achievement of a statutory objective.
Subpart C sets forth the duties of NEA recipients. NEA recipients
are responsible for ensuring that their programs and activities are in
compliance with the Act and NEA regulations. Where an NEA recipient
passes on financial assistance to subrecipients, the recipient must
notify subrecipients of their obligations under the regulations. Under
these regulations, each recipient and each subrecipient could be
required to complete a written self-evaluation of its compliance with
the regulations. The self-evaluation must be kept on file for three
years from its effective date and made available to the public upon
request.
Subpart D of the regulations establishes the procedures for
investigation, conciliation, and enforcement of the Act. This Subpart
closely reflects the procedural requirements included in HHS's
government-wide regulations.
Section 1156.16 requires mediation as an initial step in the
complaint process. The NEA will refer all complaints of discrimination
under the Act to the federal agency designated by the Secretary of HHS
to manage the mediation process. Complainants and recipients are
required to participate in the effort to reach a mutually satisfactory
mediated settlement of the complaint. Mediation may last no more than
60 days from the date the NEA first receives the complaint. The NEA
will, however, investigate complaints that are unresolved after
mediation or are reopened because the mediation agreement is violated.
Finally, the regulations permit the NEA to disburse withheld funds
to an appropriate alternate recipient. The alternate recipient must be
in compliance with the regulations and must demonstrate the ability to
comply with the agency's regulations issued under this Act and to
achieve the goals of the Federal statute authorizing the program or
activity.
List of Subjects in 45 CFR Part 1156
Administrative practice and procedure, Civil rights,
Discrimination, Grant programs, Investigations, Reporting and
recordkeeping requirements.
Dated: February 4, 1998.
Karen Elias,
Deputy General Counsel, National Endowment for the Arts.
In consideration of the forgoing, part 1156 is hereby added to
Title 45 of the Code of Federal Regulations to read as set forth below.
PART 1156--NONDISCRIMINATION ON THE BASIS OF AGE
Subpart A--General
Sec.
1156.1 Purpose.
1156.2 Application.
1156.3 Definitions.
1156.4 [Reserved]
Subpart B--Standards for Determining Discriminatory Practices
1156.5 Purpose.
1156.6 Rules against age discrimination.
1156.7 Exceptions to the rules against age discrimination.
1156.8 Burden of proof.
Subpart C--Responsibilities of Endowment Recipients
1156.9 [Reserved].
1156.10 General responsibilities.
1156.11 Notice to subrecipients.
1156.12 Self-evaluation.
1156.13 Information requirements.
Subpart D--Investigation, Conciliation, and Enforcement Procedures
1156.14 Compliance reviews.
1156.15 Complaints.
1156.16 Mediation.
1156.17 Investigation.
1156.18 Prohibition against intimidation or retaliation.
1156.19 Compliance procedure.
1156.20 Alternate funds disbursal procedure.
1156.21 Exhaustion of administrative remedies.
Authority: 42 U.S.C. 6101 et seq.; 45 CFR part 90.
Subpart A--General
Sec. 1156.1 Purpose.
The purpose of this part is to implement the Age Discrimination Act
of 1975 (``Act''), as amended, and as required by the general age
discrimination regulations at 45 CFR part 90. The Age Discrimination
Act of 1975, as amended, is designed to prohibit discrimination on the
basis of age in programs or activities receiving Federal financial
assistance. The Act also permits federally assisted programs and
activities, and recipients of Federal funds to continue to use certain
age distinctions and factors other than age which meet the requirements
of the Act and the regulations in this part.
Sec. 1156.2 Application.
(a) The Age Discrimination Act of 1975 and the regulations in this
part apply to any program or activity receiving financial assistance
from the National Endowment for the Arts and to each program or
activity that receives or benefits from such assistance.
(b) The Age Discrimination Act of 1975 does not apply to:
(1) Any age distinction contained in that part of Federal, State,
or local statute or ordinance adopted by an elected general purpose
legislative body which:
(i) Provides benefits or assistance to persons based on age; or
(ii) Establishes criteria for participation in age-related terms;
or
(iii) Describes intended beneficiaries or target groups in age
related terms.
(2) Any employment practice of any employer, employment agency,
labor organization, or any labor-management joint apprenticeship
training program, except for any program or activity receiving Federal
financial assistance for public service employment under the Job
Training Partnership Act (JTPA).
Sec. 1156.3 Definitions.
As used in the regulation in this part, the term:
[[Page 6877]]
(a) Act means the Age Discrimination Act of 1975, as amended (Title
III of Pub. L. 94-135).
(b) Action means any act, activity, policy, rule, standard, or
method of administration; or the use of any policy, rule, standard, or
method of administration.
(c) Age means how old a person is or the number of elapsed years
from the date of a person's birth.
(d) Age distinction means any action using age or any age-related
term.
(e) Age-related term means a word or words which necessarily imply
a particular age or range of ages (for example, ``children,''
``adult,'' ``older person,'' but not ``student'').
(f) 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 agency provides or otherwise makes available
assistance in the form of:
(1) Funds;
(2) Services of Federal personnel; or
(3) Real and personal property including:
(i) 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.
(g) Normal operation means the operation of a program or activity
without significant changes that would impair its ability to meet its
objectives.
(h) Recipient means any State or its political subdivision, any
instrumentality of a State or its 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 excludes the ultimate beneficiary of the assistance.
(i) Statutory objective means any purpose of a program or activity
expressly stated in any Federal statute, state statute, or local
statute or ordinance adopted by an elected, general purpose legislative
body.
(j) Sub-recipient means any of the entities in the definition of
recipient to which a recipient extends or passes on Federal financial
assistance and has all the duties of a recipient in the regulations in
this part.
(k) Endowment means the National Endowment for the Arts.
(l) Chairperson means the Chairperson of the National Endowment for
the Arts.
(m) Secretary means the Secretary of the Department of Health and
Human Services.
(n) United States means the fifty States, the District of Columbia,
Puerto Rico, the Virgin Islands, American Somoa, Guam, Wake Island, the
Canal Zone, the Federated States of Micronesia and the Republic of
Palau, the Northern Marianas, and the territories and possessions of
the United States.
Sec. 1156.4 [Reserved]
Subpart B--Standards for Determining Discriminatory Practices
Sec. 1156.5 Purpose.
The purpose of this subpart is to set forth the prohibitions
against age discrimination and the exceptions to those prohibitions.
Sec. 1156.6 Rules against age discrimination.
The rules stated in this section are limited by the exceptions
contained in Sec. 1156.7 (b) and (c).
(a) General rule. 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 under any program or activity
receiving Federal financial assistance.
(b) Specific rules. A recipient may not, in any program or activity
receiving Federal financial assistance, directly or through
contractual, licensing, or other arrangements use age distinctions or
take any other actions which have the effect, on the basis of age, of:
(1) Excluding individuals from, denying them the benefits of, or
subjecting them to discrimination under a program or activity receiving
Federal financial assistance; or
(2) Denying or limiting individuals in their opportunity to
participate in any program or activity receiving Federal financial
assistance.
(c) The specific forms of age discrimination listed in paragraph
(b) of this section do not necessarily constitute a complete list of
discriminatory actions.
Sec. 1156.7 Exceptions to the rules against age discrimination.
(a) Normal operation or statutory objective of any program or
activity. A recipient is permitted to take an action otherwise
prohibited by Sec. 1156.6 if the action reasonably takes into account
age as a factor necessary to the normal operation or the achievement of
any statutory objective of a program or activity, if:
(1) Age is used as a measure or approximation of one or more other
characteristics; and
(2) The other characteristic(s) must be measured or approximated in
order for the normal operation of the program or activity to continue,
or to achieve any statutory objective of the program or activity; and
(3) The other characteristic(s) can be reasonably measured or
approximated by the use of age; and
(4) The other characteristic(s) are impractical to measure directly
on an individual basis.
(b) Reasonable factors other than age. A recipient is permitted to
take an action otherwise prohibited by Sec. 1156.6 which is based on a
factor other than age, even though that action may have a
disproportionate effect on persons of different ages. An action may be
based on a factor other than age only if the factor bears a direct and
substantial relationship to the normal operation of the program or
activity or to the achievement of a statutory objective.
(c) Remedial and affirmative action by recipients. If a recipient
operating a program which serves the elderly or children in addition to
persons of other ages, provides special benefits to the elderly or to
children the provision of those benefits shall be presumed to be
voluntary affirmative action provided that it does not have the effect
of excluding otherwise eligible persons from participation in the
program.
Sec. 1156.8 Burden of proof.
The recipient of Federal financial assistance bears the burden of
proving that an age distinction or other action falls within the
exceptions outlined in Sec. 1156.7.
Subpart C--Responsibilities of Endowment Recipients
Sec. 1156.9 [Reserved]
Sec. 1156.10 General responsibilities.
A recipient has primary responsibility to ensure that its programs
and activities are in compliance with the Age Discrimination Act, to
take steps to eliminate violations of the Act, and to provide notice to
beneficiaries of its programs and activities concerning protection
against discrimination provided by the Act and the regulations in this
part. A recipient also has responsibility to maintain records, provide
information, and to afford access to its records to the Endowment to
the extent required to determine whether it is in compliance with the
Act.
[[Page 6878]]
Sec. 1156.11 Notice to subrecipients.
Where a recipient passes on Federal financial assistance from the
Endowment to subrecipients, the recipient shall provide the
subrecipients with written notice regarding the subrecipient's
obligations under the Act and the regulations in this part.
Sec. 1156.12 Self-evaluation.
(a) Each recipient employing the equivalent of 15 or more full time
employees may be required to complete a written self-evaluation, in a
manner specified by the responsible Endowment official during the
course of an investigation, of any age distinction imposed in its
program or activity receiving Federal financial assistance from the
Endowment to assess the recipient's compliance with the Act.
(b) Each recipient shall take corrective and remedial action
whenever a self-evaluation indicates a violation of the Act.
(c) Each recipient shall make the self-evaluation available on
request to the Endowment and to the public for a period of three years
following its completion.
Sec. 1156.13 Information requirements.
Each recipient shall:
(a) Make available to the Endowment, upon request, information
necessary to determine whether the recipient is complying with the
regulations in this part.
(b) Permit reasonable access by the Endowment to the books,
accounts and other recipient facilities and sources of information to
the extent necessary to determine whether the recipient is in
compliance with the Act.
Subpart D--Investigation, Conciliation, and Enforcement Procedures
Sec. 1156.14 Compliance reviews.
The Endowment may conduct compliance reviews, pre-award reviews and
other similar procedures in order to investigate and correct violations
of the Act and regulations. The Endowment may conduct these reviews in
the absence of a compliant against the recipient. In the event a
compliance review or pre-award review indicates a violation of the
regulations in this part, the Endowment will attempt to achieve
voluntary compliance with the Act. If voluntary compliance cannot be
achieved, enforcement efforts will proceed as described in
Sec. 1156.19.
Sec. 1156.15 Complaints.
(a) Any person, individually or as a member of a class or on behalf
of others, may file a complaint with the Endowment, alleging
discrimination prohibited by the Act and the regulations in this part
based on an action occurring on or after July 1, 1979. A complainant
shall file a complaint within 180 days from the date that the
complainant first had knowledge of the alleged act of discrimination.
However, for good cause, the Endowment may extend this time limit. The
Endowment will consider the date a complaint is filed to be the date
upon which the complaint is sufficient to be processed.
(b) Complaints must include a written statement identifying the
parties involved, describing the alleged violation, and stating the
date on which the complainant first had knowledge of the alleged
violation. Complaints must be signed by the complainant. The Endowment
will return any complaint that does not contain the necessary
information, that is not signed by the complainant, or that is not
within the Endowment's jurisdiction for any other reason. The Endowment
will provide an explanation for all such returned complaints.
(c) The Endowment will attempt to facilitate the filing of
complaints wherever possible, including taking the following measures:
(1) Widely disseminating information regarding the obligations of
recipients under the Act and the regulations in this part.
(2) Notifying the complainant and the recipient of their rights and
obligations under the complaint procedure, including the right to have
a representative at all stages of the complaint procedure.
(3) Notifying the complainant and the recipient (or their
representatives) of their right to contact the Endowment for
information and assistance regarding the complaint resolution process.
Sec. 1156.16 Mediation.
(a) Referral of complaints for mediation. The Endowment will
promptly refer all complaints to the agency designated by the Secretary
of HHS to manage the mediation process that:
(1) Fall within the jurisdiction of the regulations in this part;
and
(2) Contain all information necessary for further processing.
(b) Both the complainant and the recipient shall participate in the
mediation process to the extent necessary to reach an agreement or make
an informal judgment that an agreement is not possible. There must be
at least one meeting with the mediator before the Endowment will accept
a judgment that an agreement is not possible. However, the recipient
and the complainant need not meet with the mediator at the same time.
(c) If the complainant and recipient reach a mutually satisfactory
resolution of the complaint during the mediation period, they shall
reduce the agreement to wiring. The mediator shall send a copy of the
settlement to the Endowment. No further action shall be taken by the
Endowment based on that complaint unless it appears that the
complainant or the recipient has failed to comply with the agreement.
(d) The mediator shall protect the confidentiality of all
information obtained in the course of the mediation process. No
mediator shall testify in any adjudicative proceeding, produce any
document, or otherwise disclose any information obtained in the course
of the mediation process without prior approval of the head of the
mediation agency.
(e) Not more than 60 days after the Endowment receives the
complaint, the mediator shall return a still unresolved complaint to
the Endowment for initial investigation. The mediator may return a
complaint at any time before the end of the 60-day period if it appears
that the complaint cannot be resolved through mediation. The mediator
may extend this 60-day period, provided the Endowment concurs, for not
more than 30 days, if the mediator determines that resolution is likely
to occur within such period.
Sec. 1156.16 Investigation.
(a) Informal investigation. (1) The Endowment will investigate
complaints that are unresolved after mediation or are reopened because
of a violation of a mediation agreement.
(2) As part of the initial investigation, the Endowment will use
informal fact-finding methods, including joint or separate discussions
with the complainant and the recipient to establish the facts, and, if
possible, resolve the complaint to the mutual satisfaction of the
parties. The Endowment may seek the assistance of any involved State
program agency.
(3) The Endowment will put any agreement in writing and have it
signed by the parties and an authorized official at the Endowment.
(4) The settlement shall not affect the operation of any other
enforcement effort of the Endowment, including compliance reviews and
investigation of other complaints which may involve the recipient.
(5) The settlement is not a finding of discrimination against a
recipient.
(b) Formal investigation, conciliation, and hearing. If the
Endowment cannot
[[Page 6879]]
resolve the complaint during the early stages of the investigation, it
shall:
(1) Complete the investigation of the complaint.
(2) Attempt to achieve voluntary compliance satisfactory to the
Endowment, if the investigation indicates a violation.
(3) Arrange for enforcement as described in Sec. 1156.19, if
necessary.
Sec. 1156.18 Prohibition against intimidation or retaliation.
A recipient may not engage in acts of intimidation or retaliation
against any person who:
(a) Attempts to assert a right protected by the Act; or
(b) Cooperates in any mediation, investigation, hearing, or other
part of the Endowment's investigation, conciliation and enforcement
process.
Sec. 1156.19 Compliance procedure.
(a) The Endowment may enforce the Act and the regulations in this
part through:
(1) Termination of a recipient's Federal financial assistance from
the Endowment under the program or activity involved where the
recipient has violated the Act and the regulations in this part. The
determination of the recipient's violation may be made only after a
recipient has had an opportunity for a hearing on the record before an
administrative law judge. Therefore, a case which is settled in
mediation, or prior to a hearing, will not involve termination of a
recipient's Federal financial assistance from the Endowment unless it
is reopened because of a violation of the agreement.
(2) Any other means authorized by law including, but not limited
to:
(i) Referral to the Department of Justice for proceedings to
enforce any rights of the United States or obligations of the recipient
created by the Act or the regulations in this part.
(ii) Use of any requirement of or referral to any Federal, State,
or local government agency that will have the effect of correcting a
violation of the Act or the regulations in this part.
(b) The Endowment will limit any termination under paragraph (a)(1)
of this section to the particular recipient and particular program or
activity or portion thereof that the Endowment finds in violation of
the regulations in this part. The Endowment will not base any part of a
termination on a finding with respect to any program or activity of the
recipient which does not receive Federal financial assistance from the
Endowment.
(c) The Endowment will not take action under paragraph (a) of this
section until:
(1) The Chairperson has advised the recipient of its failure to
comply with the Act and the regulations in this part and has determined
that voluntary compliance cannot be obtained.
(2) Thirty days have elapsed after the Chairperson has sent a
written report of the circumstances and grounds of the action to the
committees of the Congress having legislative jurisdiction over the
Federal program or activity involved. The Chairperson will file a
report whenever any action is taken under paragraph (a) of this
section.
(d) The Chairperson also may defer granting new Federal financial
assistance from the Endowment to a recipient when a hearing under
paragraph (a)(1) of this section is initiated.
(1) New Federal financial assistance from the Endowment includes
all assistance for which the Endowment requires an application or
approval, including renewal or continuation of existing activities, or
authorization of new activities, during the deferral period. New
Federal financial assistance from the Endowment does not include
assistance approved prior to the beginning of a termination hearing
under paragraph (a)(1) of this section or increases in funding as a
result of changed computation of formula awards.
(2) The Endowment will not begin a deferral until the recipient has
received a notice of an opportunity for a hearing under paragraph
(a)(1) of this section. The Endowment will not continue a deferral 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 Chairperson. The Endowment will not continue a
deferral for more than 30 days after the close of the hearing, unless
the hearing results in a finding against the recipient. If the hearing
results in a finding against the recipient, the Endowment must
terminate funds.
Sec. 1156.20 Alternate funds disbursal procedure.
(a) When the endowment withholds funds from a recipient under the
regulations in this part, the Chairperson may disburse the withheld
funds directly to an alternate recipient otherwise eligible for
Endowment support: any public or nonprofit private organization or
agency, or State or political subdivision of the State.
(b) The Chairperson will require any alternate recipient to
demonstrate:
(1) The ability to comply with the regulations in this part; and
(2) The ability to achieve the goals of the Federal statute
authorizing the program or the activity.
Sec. 1156.21 Exhaustion of administrative remedies.
(a) A complainant may file a civil action following the exhaustion
of administrative remedies under the Act. Administrative remedies are
exhausted if:
(1) 180 days have elapsed since the complainant filed the complaint
and the Endowment has made no finding with regard to the complaint; or
(2) The Endowment issues a finding in favor of the recipient.
(b) If the Endowment fails to make a finding within 180 days or
issues a finding in favor of the recipient, the Endowment will:
(1) Promptly advise the complainant if either of the conditions of
paragraph (a) of this section has been met;
(2) Advise the complainant of his or her right to bring a civil
action for injunctive relief that will effect the purpose of the Act;
(3) Inform the complainant:
(i) That the complainant may bring a civil action only in the
United States district court for the district in which the recipient is
located or transacts business;
(ii) That a complainant prevailing in a civil action has the right
to be awarded the costs of the action, including reasonable attorney's
fees, but that the complainant must demand these costs in the
complaint;
(iii) That before commencing the action the complainant shall give
30 days notice by registered mail to the Chairperson of the Endowment,
the Secretary, the Attorney General of the United States, and the
recipient;
(iv) That the notice must state: the alleged violation of the Act;
the relief requested; the court in which the complainant is bringing
the action; and whether or not the attorney's fees are demanded in the
event the complainant prevails; and
(v) That the complainant may not bring an action if the same
alleged violation of the Act by the same recipient is the subject of a
pending action in any court of the United States.
[FR Doc. 98-3334 Filed 2-10-98; 8:45 am]
BILLING CODE 7535-01-M
