[Federal Register Volume 79, Number 90 (Friday, May 9, 2014)]
[Rules and Regulations]
[Pages 26631-26637]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-10644]
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NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES
National Endowment for the Humanities
45 CFR Part 1172
RIN 3136-AA33
Nondiscrimination on the Basis of Age in Federally Assisted
Programs or Activities
AGENCY: National Endowment for the Humanities.
ACTION: Final rule.
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SUMMARY: In this final rule, the National Endowment for the Humanities
(NEH) is issuing Age Discrimination Act of 1975 (the Act or the Age
Act) regulations. These regulations implement provisions of the Act and
the general, government-wide age discrimination regulations promulgated
by the United States Department of Health and Human Services (HHS).
These regulations are designed to guide the actions of recipients
of Federal financial assistance from NEH and incorporate the basic
standards set forth in the general, government-wide regulations for
determining what constitutes age discrimination. These regulations also
discuss the responsibilities of NEH recipients and the investigations,
conciliation, and enforcement procedures NEH has been using and will
continue to use to ensure compliance with the Act.
DATES: The final rule will be effective June 9, 2014.
FOR FURTHER INFORMATION CONTACT: Mara Campbell, Office of the General
Counsel, NEH, at 202-606-8322, 202-606-8282 (TDD), or
[email protected].
SUPPLEMENTARY INFORMATION:
General Information
The Age Discrimination Act of 1975, as amended, 42 U.S.C. 6101 et
seq., (the Act or the Age Act), prohibits discrimination on the basis
of age in programs or activities receiving Federal financial
assistance. The Act, which applies to persons of all ages, also
contains certain exceptions that permit, under limited circumstances,
use of age distinctions or factors other than age that may have a
disproportionate effect on the basis of age.
The Act however, does not cover employment discrimination on the
basis of age, which is addressed by a different statute, the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 621 et
seq., (ADEA). The ADEA applies specifically to employment practices and
programs, both in the public and private sectors, and only applies to
persons who are age forty and over. Complaints of employment
discrimination based on age by recipients of Federal financial
assistance are subject to the ADEA--and not the Act or these
regulations--and should instead be filed with the Equal Employment
Opportunity Commission (EEOC) (29 CFR part 1626).
Rulemaking History
The Act required the former Department of Health, Education and
Welfare (HEW) to issue general, government-wide regulations setting
standards to be followed by all Federal agencies implementing the Act.
These government-wide regulations, issued on June 12, 1979 and codified
at 45 CFR part 90, require each agency to publish agency-specific
regulations implementing the Act and to submit such final agency
regulations to HEW (now HHS) before publication in the Federal
Register. (See 45 CFR 90.31).
The Act became effective on July 1, 1979--the effective date of
HEW's final government-wide regulations--and NEH has enforced the
provisions of the Act since that time.
NEH first proposed agency-specific regulations implementing the Act
on October 4, 1979 (44 FR 57130), but did not publish the final
regulations. As a practical matter, however, the absence of such
regulations has not affected NEH's enforcement of prohibitions against
discrimination on the basis of age in programs or activities receiving
financial assistance from NEH.
Since a significant amount of time had passed, and because
regulatory development guidelines had changed, NEH began the regulatory
process anew and published a proposed rule, including a full regulatory
analysis under the Administrative Procedure Act, in the Federal
Register on May 15, 2013 (78 FR 28569). The public comment period ended
on July 15, 2013, and the only comments NEH received were from the
EEOC.
Comments From EEOC
The majority of the EEOC's comments were intended to address
potential confusion among the employment community and employees who
may be unaware that the Age Act and the ADEA are separate statutes with
different purposes, procedures, and remedies. In order to address this
concern, NEH created a new ``General Information'' section under the
Supplementary Information heading. This new section provides
information on the ADEA and how it differs from the Age Act.
In addition to inserting this general overview, NEH amended
specific sections of the rule to more clearly distinguish the two Acts:
Section 1172.1 has been amended to state that complaints of
employment discrimination based on age by recipients of Federal
financial assistance are subject to the ADEA and should be filed
administratively with the EEOC.
Section 1172.2(b) has been amended to include subsection (3) which
states that these regulations do not in any way affect any rights or
responsibilities under the ADEA, the EEOC's regulations under the ADEA,
or any statements of policy promulgated by EEOC under the ADEA.
Section 1172.3 has been amended to include a definition of the
ADEA.
HHS Review
As part of the clearance process required by the government-wide
Age Act regulations, NEH submitted its draft final rule to HHS for
review prior to publication. In response to this review, NEH updated
the following sections:
Section 1172.12 has been amended to include subsection (e) which
states that any age distinction issued by NEH in a regulation is
presumed to be necessary to achieve a statutory objective,
notwithstanding the provisions of Sec. 1172.12(a).
Sections 1172.24 and 1172.33 have been amended to replace the word
``must'' with ``shall.''
Section 1172.33(a) has been amended to include the words, ``Unless
the age distinction complained of is clearly within an exception,'' at
the beginning of the sentence. Additionally, the second sentence of
subpart (b) has been deleted.
Sections 1172.33(c) and 1124.34(a)(1) have been amended to replace
the word ``settlement'' with ``mediation.''
Section 1172.36(d) has been amended to include subsection (3) which
states that deferrals will be limited to the particular recipient and
particular program or activity.
Additional Changes
In addition to the changes noted above, NEH updated the following
section of the final rule:
Section 1172.2(b) has been amended to delete the words ``any
program or activity receiving Federal financial assistance under the
Workforce Investment Act of 1998 (29 U.S.C. 9201 et seq.)'' as Congress
eliminated this
[[Page 26632]]
exception in the Omnibus Consolidated and Emergency Supplemental
Appropriations Act of 1999, Public Law 105-277.
Finally, HHS's government-wide regulations require that each agency
publish an appendix to its Age Act regulations listing all age
distinctions which appear in federal statutes and regulations and
affect the agency's program of financial assistance. A review of
National Foundation on the Arts and Humanities Act of 1965, 20 U.S.C.
951 et seq., and NEH's regulations reveals no statutory age
distinctions used by NEH in the administration of agency programs.
Overview of the Final Rule
NEH has designed this rule to fulfill its statutory and regulatory
obligations to issue a regulation implementing the Act that conforms to
the government-wide regulations at 45 CFR part 90. NEH's rule is
divided into four parts: Subpart A--General; Subpart B--Standards for
Determining Age Discrimination; Subpart C--Responsibilities of NEH
Recipients; and Subpart D--Investigation, Conciliation, and Enforcement
Procedures.
Subpart A--General
Subpart A explains the purpose of these regulations, which is to
set out NEH's policies and procedures in accordance with the Act and
the government-wide regulations. These regulations apply to any program
or activity receiving Federal financial assistance from NEH. Subpart A
also defines terms used in the regulations, many of which are identical
to the definitions in the government-wide regulations. The definition
of the term ``recipient'' 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 is spent in providing services
or benefits to others. Further, because the Act contains several
exceptions which limit the general prohibition against age
discrimination, the regulations provide definitions for two terms that
are essential to understanding two of those exceptions: ``normal
operation'' and ``statutory objective.''
Subpart B--Standards for Determining Age Discrimination
Subpart B sets out the standards NEH uses for determining illegal
age discrimination, which are based on the government-wide regulations.
The regulations also establish a four-part test for a specific age
distinction to satisfy the ``normal operation'' or ``statutory
objective'' requirement for a recipient to use an age-based distinction
in a program or activity receiving Federal financial assistance. NEH
will use this four-part test to scrutinize age distinctions, if any,
which are imposed in NEH-assisted programs, but which are not
explicitly authorized by a Federal, State or local statute. NEH
recipients are also permitted to take an action otherwise prohibited by
the Act if the action is based on ``reasonable factors other than
age,'' but only if the factor bears a direct and substantial
relationship to the program's normal operation or to the achievement of
a statutory objective.
Subpart C--Responsibilities of NEH Recipients
Subpart C sets forth the duties of NEH recipients. NEH recipients
are responsible for ensuring that their programs and activities are in
compliance with the Act and NEH regulations. Where an NEH recipient
passes on financial assistance to subrecipients, the recipient must
notify subrecipients of their obligations under the regulations. Under
these regulations, NEH could require a recipient or subrecipient to
complete a written self-evaluation of its compliance with the Act and
these 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--Investigation, Conciliation, and Enforcement Procedures
Subpart D establishes the procedures for investigation,
conciliation, and enforcement of the Act, and closely follows the
procedural requirements included in the government-wide age
discrimination regulations. Mediation is the first step in the
complaint process. NEH will refer all complaints of discrimination
under the Act to the Federal agency designated by HHS to manage the
mediation process. Complainants and NEH recipients shall participate in
the effort to reach a mutually satisfactory settlement. Mediation may
last no more than sixty (60) days from the date NEH first receives the
complaint. NEH will investigate any complaints that are unresolved
after mediation or are reopened because the mediation agreement is
violated. Finally, these regulations permit NEH to withhold funds and
disburse them to an appropriate alternate recipient, if the alternate
has demonstrated the ability to comply with these regulations and to
achieve the goals of the National Foundation on the Arts and the
Humanities Act of 1965.
Regulatory Procedures
Executive Order 12866, Regulatory Review
NEH has determined that the rule is not a ``significant regulatory
action'' under Executive Order 12866 because it will not: (1) have an
annual effect on the economy of $100 million or more or adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or Tribal governments or communities; (2)
create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency; (3) materially alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients thereof; or (4) raise novel legal
or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in Executive Order 12866.
Therefore, the rule is not subject to Office of Management and Budget
(OMB) review.
Regulatory Flexibility Act
In accordance with section 605(b) of the Regulatory Flexibility Act
(RFA) (5 U.S.C. 601, et seq., as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996), the Chairman of NEH has
certified that this rule will not have a significant economic impact on
a substantial number of small entities. In making this determination,
NEH used the definition of small entity set forth in the RFA: (1) a
small business, as defined by the Small Business Administration (SBA)
in 13 CFR part 121.201; (2) a small governmental jurisdiction, which is
a government of a city, county, town, school district or special
district with a population of less than 50,000; and (3) a small
organization, which is any non-profit enterprise that is independently
owned and operated and is not dominant in its field. Some NEH grant
programs support humanities projects developed by small, independently-
owned non-profits, such as museums, libraries, and other cultural
organizations. NEH funds approximately 75-100 small non-profits each
year, which accounts for less than ten percent of NEH's annual funding.
However, the rule, if promulgated in final form, will not impose
any additional requirements on these small entities because it will not
substantively change existing requirements, but will
[[Page 26633]]
merely clarify such duties for entities receiving financial assistance
from NEH. The requirements prohibiting age discrimination by recipients
of Federal financial assistance contained in the Act and the
government-wide regulations have been in effect since 1975. The rule
only formalizes those existing requirements for NEH recipients.
Small Business Regulatory Enforcement Fairness Act of 1996
NEH has determined that the rule is not a ``major rule'' as defined
by section 251 of the Small Business Regulatory Enforcement Fairness
Act of 1996 (SBREFA), as amended, Pub. L. 104-121 (5 U.S.C. 804). This
rule will not result in: (1) an annual effect on the economy of $100
million or more; (2) a major increase in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions; or (3) significant adverse effects on competition,
employment, investment, productivity, innovation or the ability of
United States-based companies to compete with foreign-based companies
in domestic and export markets.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4
(2 U.S.C. 1501 et seq.), does not apply to the rule because it does not
apply to regulatory actions that establish or enforce statutory rights
that prohibit discrimination on the basis of race, color, religion,
sex, national origin, age, handicap or disability. Further, the rule
contains no ``Federal mandate'' under Title II of UMRA because UMRA
excludes from the definitions of ``Federal intergovernmental mandate''
and ``Federal private sector mandate'' duties that arise from
conditions of Federal assistance and duties that arise from
participation in a voluntary Federal program. Congress mandated in the
Act the establishment of these agency-specific regulations to enforce
the prohibition of discrimination on the basis of age in programs or
activities receiving Federal financial assistance. These regulations do
not apply to any program or activity unless it applies for and receives
financial assistance from NEH. Application for, and receipt of, NEH
assistance is entirely voluntary. In addition, NEH has determined that
the rule will not significantly or uniquely affect small governments.
These regulations apply uniformly to all organizational recipients of
NEH financial assistance.
Paperwork Reduction Act
NEH has determined that the Paperwork Reduction Act (PRA), 44
U.S.C. 3501 et seq., does not apply because the rule does not impose
any new information collection requirements that require OMB approval.
Section 3518(c)(1)(B) of the PRA 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.'' These regulations provide NEH with
discretionary authority to require information from recipients as part
of an investigation, thereby eliminating any PRA concerns, because it
is discretionary and tied to NEH's authority to investigate. Further,
the rule provides that individuals ``may file'' complaints and requires
that recipients provide notice to subrecipients of their obligations
under the Act and the regulations, neither of which involve a
``collection of information'' under the PRA.
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. NEH will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective June 9, 2014.
List of Subjects in 45 CFR Part 1172
Administrative practice and procedure, Age discrimination, Civil
rights, Grant programs, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, NEH is amending 45 CFR
chapter XI, subchapter D, by adding part 1172 as follows:
PART 1172--NONDISCRIMINATION ON THE BASIS OF AGE IN FEDERALLY
ASSISTED PROGRAMS OR ACTIVITIES
Subpart A--General
Sec.
1172.1 Purpose.
1172.2 Application.
1172.3 Definitions.
Subpart B--Standards for Determining Age Discrimination
1172.11 Rules against age discrimination.
1172.12 Exceptions to the rules against age discrimination.
1172.13 Burden of proof.
Subpart C--Responsibilities of NEH Recipients
1172.21 General responsibilities.
1172.22 Notice to subrecipients.
1172.23 Self-evaluation.
1172.24 Information requirements.
Subpart D--Investigation, Conciliation, and Enforcement Procedures
1172.31 Compliance reviews.
1172.32 Complaints.
1172.33 Mediation.
1172.34 Investigation.
1172.35 Prohibition against intimidation or retaliation.
1172.36 Enforcement procedure.
1172.37 Hearings, decisions, post-termination proceedings.
1172.38 Remedial action by recipients.
1172.39 Alternate funds disbursal procedure.
1172.40 Exhaustion of administrative remedies.
Authority: 42 U.S.C. 6101-6107; 45 CFR 90.
Subpart A--General
Sec. 1172.1 Purpose.
The purpose of this part is to set out the National Endowment for
the Humanities' (NEH) policies and procedures for implementing the Age
Discrimination Act of 1975, as amended, 42 U.S.C. 6101 et seq., (the
Act or the Age Act). The Act 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 or
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. The regulations in this
part are based upon the general, government-wide age discrimination
regulations issued by the United States Department of Health and Human
Services (HHS) at 45 CFR part 90.
Complaints of employment discrimination based on age may be subject
to the Age Discrimination in Employment Act of 1967, as amended, 29
U.S.C. 621 et seq., (ADEA) and should be filed administratively with
the Equal Employment Opportunity Commission (EEOC) (29 CFR part 1626).
Sec. 1172.2 Application.
(a) The Act and the regulations in this part apply to each
recipient and to any
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program or activity receiving financial assistance from the NEH.
(b) The Act does not apply to:
(1) Any age distinction contained in that part of a Federal, State
or local statute or ordinance adopted by an elected, general purpose
legislative body which:
(i) Provides any benefits or assistance to persons based on age;
(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 with respect to any labor-management joint
apprenticeship training program.
(3) The rights or responsibilities of any person or party pursuant
to the ADEA, the EEOC regulations under the ADEA, or any statements of
policy promulgated by the EEOC under the ADEA.
Sec. 1172.3 Definitions.
As used in this part, the term:
Act means the Age Discrimination Act of 1975, as amended, 42 U.S.C.
6101 et seq. (Pub. L. 94-135).
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 means how old a person is, or the number of elapsed years from
the date of a person's birth.
ADEA means the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. 621 et seq. (Pub. L. 90-202).
Age distinction means any action using age or an age-related term.
Age-related term means a word or words which necessarily imply a
particular age or range of ages (for example, children, adult, older
persons, but not student).
Agency means a Federal department or agency that is empowered to
extend financial assistance.
Chairman means the Chairman of the National Endowment for the
Humanities.
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
NEH provides or otherwise makes available assistance in the form of:
(1) Funds;
(2) Services of Federal personnel; or
(3) Real and personal property or any interest in or use of
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.
Normal operation means the operation of a program or activity
without significant changes that would impair its ability to meet its
objectives.
Program or activity means all of the operations of:
(1) (i) A department, agency, special purpose district, or other
instrumentality of a State or local government, or
(ii) The entity of such State or local government that distributes
Federal financial assistance and each such department or agency (and
each other State or local government entity) to which the assistance is
extended, in the case 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 20 U.S.C. 7801),
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) Which 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 its political subdivision, any
instrumentality of a State or its political sub-division, 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.
Secretary means the Secretary of the Department of Health and Human
Services.
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.
Subrecipient means any of the entities in the definition of
recipient to which a recipient extends or passes on Federal financial
assistance. A subrecipient is generally regarded as a recipient of
Federal financial assistance and has all the duties of a recipient in
the regulations in this part.
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 Marianas, and the
territories and possessions of the United States.
Subpart B--Standards for Determining Age Discrimination
Sec. 1172.11 Rules against age discrimination.
The rules stated in this section are limited by the exceptions
contained in Sec. 1172.12.
(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. 1172.12 Exceptions to the rules against age discrimination.
(a) Normal operation or statutory objective of any program or
activity. A recipient may take an action otherwise prohibited by Sec.
1172.11 if the action reasonably takes into account age as a
[[Page 26635]]
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;
(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;
(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 may take an
action otherwise prohibited by Sec. 1172.11 which is based on a
reasonable 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 reasonable 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) Affirmative action by recipient. Even in the absence of a
finding of discrimination, a recipient may take affirmative action to
overcome the effects or conditions that resulted in limited
participation in the recipient's program or activity on the basis of
age.
(d) Special benefits for children and the elderly. If a recipient
operating a program or activity 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 or activity,
notwithstanding the provisions of Sec. 1172.12(a).
(e) Age distinctions in NEH regulations. Any age distinction in a
regulation issued by NEH is presumed to be necessary to the achievement
of a statutory objective of the program or activity to which the
regulation applies, notwithstanding the provisions of Sec. 1172.12(a).
Sec. 1172.13 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. 1172.12.
Subpart C--Responsibilities of NEH Recipients
Sec. 1172.21 General responsibilities.
A recipient has responsibility to ensure that its programs or
activities are in compliance with the Act and the regulations in this
part and to take steps to eliminate violations of the Act and the
regulations in this part. A recipient also has responsibility to
maintain records, provide information, and afford NEH access to its
records to the extent NEH finds necessary to determine whether the
recipient is in compliance with the Act and the regulations in this
part.
Sec. 1172.22 Notice to subrecipients.
Where a recipient passes on Federal financial assistance from NEH
to subrecipients, the recipient must provide the subrecipients with
written notice of their obligations under the Act and the regulations
in this part. Each recipient must also make necessary information
available to its beneficiaries in order to inform them about the
protections against discrimination provided by the Act and the
regulations in this part.
Sec. 1172.23 Self-evaluation.
As part of a compliance review under Sec. 1172.31 or a complaint
investigation under Sec. 1172.34, NEH may require a recipient
employing the equivalent of fifteen (15) or more full time employees to
complete a written self-evaluation, in a manner specified by NEH, of
any age distinction imposed in its program or activity receiving
Federal financial assistance. A recipient must take corrective and
remedial action whenever a self-evaluation indicates a violation of the
Act, and the recipient must make the self-evaluation available upon
request to NEH and to the public for a period of three (3) years
following its completion.
Sec. 1172.24 Information requirements.
Each recipient shall keep records containing information necessary
for NEH to determine whether the recipient is in compliance with the
Act and the regulations in this part, and shall provide any such
records to NEH upon request and in the preferred format specified by
NEH. Each recipient shall also permit reasonable access by NEH to its
books, records, accounts, and other facilities and sources of
information, to the extent necessary for NEH to determine whether the
recipient is in compliance with the Act and this part.
Subpart D--Investigation, Conciliation, and Enforcement Procedures
Sec. 1172.31 Compliance reviews.
(a) NEH may conduct compliance reviews, pre-award reviews, and
other similar procedures in order to investigate and correct violations
of the Act and the regulations in this part. NEH may conduct these
reviews even in the absence of a complaint against the recipient.
Reviews may be as comprehensive as necessary to determine whether a
recipient is in compliance with the Act and this part.
(b) If a compliance review or pre-award review indicates a
violation of the Act and the regulations in this part, NEH will attempt
to contact the recipient and achieve the recipient's voluntary
compliance. If the recipient does not comply voluntarily, NEH may
pursue enforcement efforts as described in Sec. 1172.36.
Sec. 1172.32 Complaints.
(a) Any person, individually or as a member of a class or on behalf
of others, may file a complaint with NEH, 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 must file a
complaint in writing within one hundred eighty (180) days from the date
that the complainant first had knowledge of the alleged act of
discrimination. However, for good cause, NEH may extend this time
limit. NEH will consider the date a complaint is filed as the date when
the complaint is sufficient to be processed.
(b) Complaints must include a written and signed statement
identifying the parties involved, describing the alleged violation, and
stating the date on which the complainant first had knowledge of the
alleged violation.
(c) NEH will attempt to facilitate the filing of complaints
wherever possible, including taking the following measures, as
appropriate:
(1) Widely disseminating information regarding the obligations of
recipients under the Act and this part,
(2) Permitting a complainant to add information to the complaint to
meet the requirements of a sufficient complaint,
(3) Notifying the complainant and the recipient (or their
representatives) of their rights and obligations under the complaint
procedure, including the right to have a representative at all stages
of the complaint procedure, and/or
(4) Notifying the complainant and the recipient (or their
representatives) of their right to contact NEH for information and
assistance regarding the complaint resolution process.
(d) NEH will return any complaint that is unsigned or that is not
within NEH's jurisdiction for any other reason, and NEH will provide an
explanation for the return.
[[Page 26636]]
Sec. 1172.33 Mediation.
(a) Referral of complaints for mediation. Unless the age
distinction complained of is clearly within an exception, NEH will
promptly refer all complaints that fall within the jurisdiction of the
regulations in this part, and that contain all information necessary
for further processing, to the Mediation Agency designated by the
Secretary of the Department of Health and Human Services.
(b) Both the complainant and the recipient shall participate in the
mediation process to the extent necessary to reach an agreement, or for
the mediator to make an informed judgment that an agreement is
impossible.
(c) If the complainant and recipient reach a mutually satisfactory
resolution of the complaint during the mediation period, the mediator
shall prepare a mediation agreement in writing, to be signed by the
complainant and recipient, and send a copy of the signed agreement to
NEH. NEH will take no further action based on that complaint unless 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, and 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) If the complainant and recipient do not reach a mutually
satisfactory resolution during mediation within sixty (60) days after
NEH receives the complaint, the mediator shall return the complaint to
NEH for investigation. The mediator may return a complaint at any time
before the end of the sixty-day period if it appears that the complaint
cannot be resolved through mediation or if an agreement is reached. The
mediator may extend this sixty-day period, provided NEH concurs, for
not more than thirty (30) days, if the mediator determines that
resolution is likely to occur within such period.
Sec. 1172.34 Investigation.
(a) Initial investigation. (1) NEH will investigate complaints that
are unresolved after mediation or are reopened because of a violation
of a mediation agreement.
(i) As part of this initial investigation, NEH 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. NEH
may seek the assistance of any involved State agency.
(ii) NEH will put any settlement agreement in writing and have it
signed by the parties and NEH. The settlement is not a finding of
discrimination against a recipient.
(2) The settlement shall not affect the operation of any other
enforcement effort of NEH, including compliance reviews and
investigation of other complaints which may involve the recipient.
(b) Formal investigation and finding. If NEH cannot resolve the
complaint during the initial investigation, it will complete the
investigation of the complaint and make a formal finding. If the formal
investigation indicates a violation of the Act or the regulations in
this part, NEH will attempt to achieve voluntary compliance. If NEH
cannot obtain voluntary compliance, it will begin appropriate
enforcement action as provided in Sec. 1172.36.
Sec. 1172.35 Prohibition against intimidation or retaliation.
A recipient may not engage in acts of intimidation or retaliation
against any person who attempts to assert a right protected by the Act
or this part, or cooperates in any mediation, investigation, hearing,
or other part of NEH's investigation, conciliation, and enforcement
process.
Sec. 1172.36 Enforcement procedure.
(a) NEH may enforce the Act and the regulations in this part
through:
(1) Termination of a recipient's Federal financial assistance under
the program or activity involved where the recipient has violated the
Act or the regulations in this part. Prior to such termination, a
recipient must have the opportunity for a hearing on record before an
administrative law judge who must determine that a violation has
occurred. Therefore, NEH will not terminate a recipient's Federal
financial assistance in a case that has been settled in mediation, or
prior to a hearing, unless the case is reopened because of a violation
of the settlement 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 this part.
(b) NEH will limit any termination under Sec. 1172.36(a)(1) to the
particular recipient and particular program or activity, or portion
thereof, that NEH finds in violation of the Act or the regulations in
this part. NEH will not base its decision to terminate on any findings
with respect to any other program or activity of the recipient that
does not receive Federal financial assistance from NEH.
(c) NEH will not take action under Sec. 1172.36(a) until:
(1) The Chairman has advised the recipient of its failure to comply
with the Act or the regulations in this part, and that NEH has
determined that voluntary compliance cannot be obtained, and
(2) Thirty (30) days have elapsed after the Chairman has sent a
written report of the circumstances and grounds of the action to the
Congressional Committee(s) having legislative jurisdiction over the
program or activity involved. The Chairman will file such report
whenever it takes action under Sec. 1172.36(a).
(d) NEH also may defer granting new Federal financial assistance to
a recipient when a hearing under Sec. 1172.36(a)(1) is initiated.
(1) New Federal financial assistance includes all assistance for
which NEH 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 does not include assistance approved prior to the beginning
of a termination hearing under Sec. 1172.36(a)(1), or increases in
funding as a result of changed computation of formula awards.
(2) NEH will not begin a deferral until the recipient has received
a notice of an opportunity for a hearing under Sec. 1172.36(a)(1). NEH
will not continue a deferral for more than sixty (60) days unless a
hearing has begun within that time, or the time for beginning the
hearing has been extended by mutual written consent of the recipient
and NEH. NEH will not continue a deferral for more than thirty (30)
days after the close of the hearing, unless the hearing results in a
finding against the recipient.
(3) NEH will limit any deferral to the particular recipient and
particular program or activity, or portion thereof, that NEH finds in
violation of the Act or the regulations in this part. NEH will not base
the deferral decision any finding with respect to any other program or
activity of the recipient that does not receive Federal financial
assistance from NEH.
[[Page 26637]]
Sec. 1172.37 Hearings, decisions, post-termination proceedings.
Certain NEH procedural provisions applicable to Title VI of the
Civil Rights Act of 1964 apply to NEH enforcement of the regulations in
this part. They are found at 45 CFR chapter XI, subchapter A, 1110.9
through 1110.11.
Sec. 1172.38 Remedial action by recipients.
Where NEH finds a recipient has discriminated on the basis of age,
the recipient shall take any remedial action that NEH may require to
overcome the effects of discrimination. If another recipient exercises
control over the recipient that has discriminated, NEH may require both
recipients to take remedial action.
Sec. 1172.39 Alternate funds disbursal procedure.
When NEH withholds funds from a recipient under the regulations in
this part, the Chairman may disburse the withheld funds directly to an
alternate recipient otherwise eligible for NEH support. NEH will
require any alternate recipient to demonstrate the ability to comply
with the regulations in this part and to achieve the goals of the
National Foundation on the Arts and the Humanities Act of 1965, Pub. L.
89-209 (20 U.S.C. 951)--the Federal statute authorizing the Federal
financial assistance.
Sec. 1172.40 Exhaustion of administrative remedies.
(a) A complainant may file a civil action under the Act and the
regulations in this part following the exhaustion of administrative
remedies. Administrative remedies are exhausted if one hundred eighty
(180) days have elapsed since the complainant filed the complaint and
NEH has made no finding with regard to the complaint, or NEH issues any
finding in favor of the recipient.
(b) If either of the conditions set forth in Sec. 1172.40(a) is
satisfied, NEH will:
(1) Promptly advise the complainant of this fact,
(2) Advise the complainant of his or her right, to bring a civil
action for injunctive relief, and
(3) Inform the complainant:
(i) That a civil action can only be brought in a United States
district court for the district in which the recipient is found 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 these costs must be demanded in the complaint,
(iii) That before commencing the action, the complainant must give
thirty (30) days' notice by registered mail to the Secretary, the
Attorney General of the United States, the Chairman, 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 attorney's fees are demanded in the
event the complainant prevails, and
(v) That no action may be brought 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.
Michael McDonald,
General Counsel.
[FR Doc. 2014-10644 Filed 5-8-14; 8:45 am]
BILLING CODE 7536-01-P