[Title 41 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2003 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
41
Chapter 101
Revised as of July 1, 2003
Public Contracts and Property Management
Containing a codification of documents of general
applicability and future effect
As of July 1, 2003
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
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U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
For sale by the Superintendent of Documents, U.S. Government Printing
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Table of Contents
Page
Explanation................................................. v
Title 41:
Subtitle C--Federal Property Management Regulations
System:
Chapter 101--Federal Property Management Regulations 5
Finding Aids:
Table of CFR Titles and Chapters........................ 255
Alphabetical List of Agencies Appearing in the CFR...... 273
List of CFR Sections Affected........................... 283
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 41 CFR 101-1.100
refers to title 41, part
101-1, section 100.
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EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, July 1, 2003), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
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Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
and parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, Washington, DC 20408 or e-mail
[email protected].
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ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of
CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers, Weekly Compilation of Presidential
Documents and the Privacy Act Compilation are available in electronic
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free). E-mail, [email protected].
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The Office of the Federal Register also offers a free service on the
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site for public law numbers, Federal Register finding aids, and related
information. Connect to NARA's web site at www.archives.gov/federal--
register. The NARA site also contains links to GPO Access.
Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 2003.
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THIS TITLE
Title 41--Public Contracts and Property Management consists of
Subtitle A--Federal Procurement Regulations System [Note]; Subtitle B--
Other Provisions Relating to Public Contracts; Subtitle C--Federal
Property Management Regulations System; Subtitle D is reserved for other
provisions relating to property management, Subtitle E--Federal
Information Resources Management Regulations System and Subtitle F--
Federal Travel Regulation System.
As of July 1, 1985, the text of subtitle A is no longer published in
the Code of Federal Regulations. For an explanation of the status of
subtitle A, see 41 CFR chapters 1--100 (page 3).
Other government-wide procurement regulations relating to public
contracts appear in chapters 50 through 100, subtitle B.
The Federal property management regulations in chapter 101 of
subtitle C are government-wide property management regulations issued by
the General Services Administration. In the remaining chapters of
subtitle C are the implementing and supplementing property management
regulations issued by individual Government agencies. Those regulations
which implement chapter 101 are numerically keyed to it.
The Federal Travel Regulation System in chapters 300-304 of subtitle
F is issued by the General Services Administration.
Title 41 is composed of four volumes. The chapters in these volumes
are arranged as follows: Chapters 1--100, chapter 101, chapters 102--
200, and chapter 201 to End. These volumes represent all current
regulations codified under this title of the CFR as of July 1, 2003.
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[[Page 1]]
TITLE 41--PUBLIC CONTRACTS AND PROPERTY MANAGEMENT
(This book contains chapter 101)
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Part
SUBTITLE C--Federal Property Management Regulations System:
chapter 101--Federal Property Management Regulations........ 101-1
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Subtitle C--Federal Property Management Regulations System
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CHAPTER 101--FEDERAL PROPERTY MANAGEMENT REGULATIONS
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SUBCHAPTER A--GENERAL
Part Page
101-1 Introduction................................ 7
101-3 Annual real property inventories............ 9
101-4 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 10
101-5 Centralized services in Federal buildings
and complexes........................... 26
101-6 Miscellaneous regulations................... 32
101-8 Nondiscrimination in Federal financial
assistance programs..................... 51
101-9 Federal mail management..................... 67
SUBCHAPTER B--MANAGEMENT AND USE OF INFORMATION AND RECORDS
101-11 Federal records, interagency reports, and
standard and optional forms............. 68
SUBCHAPTER C--DEFENSE MATERIALS
101-14--101-15 [Reserved]
SUBCHAPTER D--PUBLIC BUILDINGS AND SPACE
101-16 [Reserved]
101-17 Assignment and utilization of space......... 69
101-18 Acquisition of real property................ 69
101-19 Construction and alteration of public
buildings............................... 69
101-20 Management of buildings and grounds......... 69
101-21 Federal Buildings Fund...................... 69
Appendix to Subchapter D--Temporary Regulations............. 69
SUBCHAPTER E--SUPPLY AND101-22--101-24 [Reserved]
101-22--101-24 [Reserved]
101-25 General..................................... 70
101-26 Procurement sources and program............. 83
101-27 Inventory management........................ 116
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101-28 Storage and distribution.................... 126
101-29 Federal product descriptions................ 131
101-30 Federal catalog system...................... 137
101-31 Inspection and quality control.............. 151
101-32 [Reserved]
101-33 Public utilities............................ 152
101-34 [Reserved]
Appendix to Subchapter E--Temporary Regulations [Reserved]
SUBCHAPTER F [RESERVED]
SUBCHAPTER G--AVIATION, TRANSPORTATION, AND MOTOR VEHICLES
101-37 Government aviation administration and
coordination............................ 153
101-38 Motor vehicle management.................... 160
101-39 Interagency fleet management systems........ 160
101-40 Transportation and traffic management....... 175
101-41 Transportation documentation and audit...... 175
Appendix to Subchapter G--Temporary Regulations [Reserved]
SUBCHAPTER H--UTILIZATION AND DISPOSAL
101-42 Utilization and disposal of hazardous
materials and certain categories of
property................................ 176
101-43 Utilization of personal property............ 200
101-44 Donation of surplus personal property....... 200
101-45 Sale, abandonment, or destruction of
personal property....................... 200
101-46 Replacement of personal property pursuant to
the exchange/sale authority............. 241
101-47 Utilization and disposal of real property... 241
101-48 Utilization, donation, or disposal of
abandoned and forfeited personal
property................................ 242
101-49 Utilization, donation, and disposal of
foreign gifts and decorations........... 252
Appendix to Subchapter H--Temporary Regulations [Reserved]
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SUBCHAPTER A--GENERAL
PART 101-1--INTRODUCTION--Table of Contents
Subpart 101-1.1--Regulation System
Sec.
101-1.100 Scope of subpart.
101-1.101 Federal Property Management Regulations System.
101-1.102 Federal Property Management Regulations.
101-1.103 FPMR temporary regulations.
101-1.104 Publication and distribution of FPMR.
101-1.104-1 Publication.
101-1.104-2 Distribution.
101-1.105 Authority for FPMR System.
101-1.106 Applicability of FPMR.
101-1.107 Agency consultation regarding FPMR.
101-1.108 Agency implementation and supplementation of FPMR.
101-1.109 Numbering in FPMR System.
101-1.110 Deviation.
101-1.111 Retention of FPMR amendments.
101-1.112 Change lines.
Subparts 101-1.2--101-1.48 [Reserved]
Subpart 101-1.49--Illustrations of Forms
101-1.4900 Scope of subpart.
101-1.4901 Standard forms. [Reserved]
101-1.4902 GSA forms.
101-1.4902-2053 GSA Form 2053, Agency Consolidated Requirements for GSA
Regulations and Other External Issuances.
Authority: Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c).
Source: 29 FR 13255, Sept. 24, 1964, unless otherwise noted.
Subpart 101-1.1--Regulation System
Sec. 101-1.100 Scope of subpart.
This subpart sets forth introductory material concerning the Federal
Property Management Regulations System: its content, types, publication,
authority, applicability, numbering, deviation procedure, as well as
agency consultation, implementation, and supplementation.
Sec. 101-1.101 Federal Property Management Regulations System.
The Federal Property Management Regulations System described in this
subpart is established and shall be used by General Services
Administration (GSA) officials and, as provided in this subpart, by
other executive agency officials, in prescribing regulations, policies,
procedures, and delegations of authority pertaining to the management of
property, and other programs and activities of the type administered by
GSA, except procurement and contract matters contained in the Federal
Acquisition Regulations (FAR).
[54 FR 37652, Sept. 12, 1989]
Sec. 101-1.102 Federal Property Management Regulations.
The Federal Property Management Regulations (FPMR) are regulations,
as described by Sec. 101-1.101, prescribed by the Administrator of
General Services to govern and guide Federal agencies.
Sec. 101-1.103 FPMR temporary regulations.
(a) FPMR temporary regulations are authorized for publication when
time or exceptional circumstances will not permit promulgation of an
amendment to the Code of Federal Regulations and if the regulation will
be effective for a period of 12 months or less except as provided in
Sec. 101-1.103(b), below. These temporary regulations will be codified
before the designated expiration date or their effective date will be
extended if it is determined that conversion to permanent form cannot be
accomplished within the specified time frame.
(b) FPMR temporary regulations may have an effective period of up to
2 years when codification is not anticipated or is not considered
practical.
[54 FR 37652, Sept. 12, 1989]
Sec. 101-1.104 Publication and distribution of FPMR.
Sec. 101-1.104-1 Publication.
FPMR will be published in the Federal Register, in looseleaf form,
and in accumulated form in the Code of Federal Regulations. Temporary-
type FPMR will be published in the Notices
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section of the Federal Register\1\ and in looseleaf form.
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\1\ Editorial Note: FPMR temporary regulations are published in the
Rules and Regulations section of the Federal Register and, if in effect
on the revision date of the Code of Federal Regulations volume, in the
appendixes to the subchapters in 41 CFR chapter 101.
[36 FR 4983, Mar. 16, 1971]
Sec. 101-1.104-2 Distribution.
(a) Each agency shall designate an official to serve as liaison with
GSA on matters pertaining to the distribution of FPMR and other
publications in the FPMR series. Agencies shall report all changes in
designation of agency liaison officers to the General Services
Administration (CAR), Washington, DC 20405.
(b) FPMR and other publications in the FPMR series will be
distributed to agencies in bulk quantities for internal agency
distribution in accordance with requirements information furnished by
liaison officers. FPMR and other publications in the FPMR series will
not be stocked by, and cannot be obtained from, GSA regional offices.
(c) Agencies shall submit their consolidated requirements for FPMR
and other publications in the FPMR series, including requirements of
field activities, and changes in such requirements on GSA Form 2053,
Agency Consolidated Requirements for GSA Regulations and Other External
Issuances (illustrated at Sec. 101-1.4902-2053). The mailing address is
shown on the form.
[36 FR 4983, Mar. 16, 1971, as amended at 53 FR 2739, Feb. 1, 1988]
Sec. 101-1.105 Authority for FPMR System.
The FPMR system is prescribed by the Administrator of General
Services under authority of the Federal Property and Administrative
Services Act of 1949, 63 Stat. 377, as amended, and other laws and
authorities specifically cited in the text.
Sec. 101-1.106 Applicability of FPMR.
The FPMR apply to all Federal agencies to the extent specified in
the Federal Property and Administrative Services Act of 1949 or other
applicable law.
Sec. 101-1.107 Agency consultation regarding FPMR.
FPMR are developed and prescribed in consultation with affected
Federal agencies.
Sec. 101-1.108 Agency implementation and supplementation of FPMR.
Chapters 102 through 150 of this title are available for agency
implementation and supplementation of FPMR contained in chapter 101 of
this title. Supplementation pertains to agency regulations in the
subject matter of FPMR but not yet issued in chapter 101.
[54 FR 37652, Sept. 12, 1989]
Sec. 101-1.109 Numbering in FPMR System.
(a) In the numbering system, all FPMR material is preceded by the
digits 101-. This means that it is chapter 101 in title 41 of the Code
of Federal Regulations. It has no other significance. The digit(s)
before the decimal point indicates the part; the digits after the
decimal point indicate, without separation, the subpart and section. For
example:
[GRAPHIC] [TIFF OMITTED] TC05NO91.088
(b) At the bottom of each page appears the number and date (month
and year) of the FPMR amendment which transmitted it.
(c) Agency implementing regulations should conform to the FPMR
section numbers, except for the substitution of the chapter designation
of the agency. Agency supplementing regulations should be numbered
``50'' or higher for section, subpart, or part as may be involved.
[54 FR 37652, Sept. 12, 1989]
Sec. 101-1.110 Deviation.
(a) In the interest of establishing and maintaining uniformity to
the greatest extent feasible, deviations; i.e., the use of any policy or
procedure in any manner that is inconsistent with a policy or procedure
prescribed in the Federal Property Management Regulations, are
prohibited unless such deviations have been requested from the approved
by
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the Administrator of General Services or his authorized designee.
Deviations may be authorized by the Administrator of General Services or
his authorized designee when so doing will be in the best interest of
the Government. Request for deviations shall clearly state the nature of
the deviation and the reasons for such special action.
(b) Requests for deviations from the FPMR shall be sent to the
General Services Administration for consideration in accordance with the
following:
(1) For onetime (individual) deviations, requests shall be sent to
the address provided in the applicable regulation. Lacking such
direction, requests shall be sent to the Administrator of General
Services, Washington, DC 20405.
(2) For class deviations, requests shall be sent to only the
Administrator of General Services.
[54 FR 37652, Sept. 12, 1989]
Sec. 101-1.111 Retention of FPMR amendments.
Retention of FPMR amendments and removed pages will provide a
history of FPMR issuances and facilitate determining which regulations
were in effect at particular times.
[39 FR 40952, Nov. 22, 1974]
Sec. 101-1.112 Change lines.
(a) Single-column format: Vertical lines in the right margin of a
page indicate material changed, deleted, or added by the FPMR amendment
cited at the bottom of that page. Where insertion of new material
results in shifting of unchanged material on following pages, no
vertical lines will appear on such pages but the FPMR amendment
transmitting such new pages will be cited at the bottom of each page.
(b) Double-column format: Arrows printed in the margin of a page
indicated material changed, deleted, or added by the FPMR amendment
cited at the bottom of that page.
[54 FR 37652, Sept. 12, 1989]
Subparts 101-1.2--101-1.48 [Reserved]
Subpart 101-1.49--Illustrations of Forms
Sec. 101-1.4900 Scope of subpart.
This subpart illustrates forms prescribed or available for use in
connection with subject matter covered in other subparts of this part
101-1.
[36 FR 4983, Mar. 16, 1971]
Sec. 101-1.4901 Standard forms. [Reserved]
Sec. 101-1.4902 GSA forms.
(a) The GSA forms are illustrated in this section to show their
text, format, and arrangement and to provide a ready source of
reference. The subsection numbers in this section correspond with the
GSA numbers.
(b) GSA forms illustrated in Sec. 101-1.4902 may be obtained by
addressing requests to the General Services Administration, National
Forms and Publications Center-7 CAR-W, Warehouse 4, Dock No. 1, 501 West
Felix Street, Forth Worth, TX 76115.
[36 FR 4984, Mar. 16, 1971, as amended at 53 FR 2739, Feb. 1, 1988]
Sec. 101-1.4902-2053 GSA Form 2053, Agency Consolidated Requirements
for GSA Regulations and Other External Issuances.
Note: The form listed in Sec. 101-1.4902-2053 is filed as part of
the original document. Copies of the form may be obtained from the
General Services Administration (3BRD), Washington, DC 20407.
[36 FR 4984, Mar. 16, 1971]
PART 101-3--ANNUAL REAL PROPERTY INVENTORIES--Table of Contents
Authority: 40 U.S.C. 486(c).
Source: 66 FR 55594, Nov. 2, 2001, unless otherwise noted.
Sec. 101-3.000 Cross-reference to the Federal Management Regulation
(FMR) (41 CFR chapter 102, parts 102-1 through 102-220).
For information on annual real property inventories previously
contained in this part, see FMR part 84 (41 CFR part 102-84).
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PART 101-4--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--
Table of Contents
Subpart A--Introduction
Sec.
101-4.100 Purpose and effective date.
101-4.105 Definitions.
101-4.110 Remedial and affirmative action and self-evaluation.
101-4.115 Assurance required.
101-4.120 Transfers of property.
101-4.125 Effect of other requirements.
101-4.130 Effect of employment opportunities.
101-4.135 Designation of responsible employee and adoption of grievance
procedures.
101-4.140 Dissemination of policy.
Subpart B--Coverage
101-4.200 Application.
101-4.205 Educational institutions and other entities controlled by
religious organizations.
101-4.210 Military and merchant marine educational institutions.
101-4.215 Membership practices of certain organizations.
101-4.220 Admissions.
101-4.225 Educational institutions eligible to submit transition plans.
101-4.230 Transition plans.
101-4.235 Statutory amendments.
Subpart C--Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
101-4.300 Admission.
101-4.305 Preference in admission.
101-4.310 Recruitment.
Subpart D--Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
101-4.400 Education programs or activities.
101-4.405 Housing.
101-4.410 Comparable facilities.
101-4.415 Access to course offerings.
101-4.420 Access to schools operated by LEAs.
101-4.425 Counseling and use of appraisal and counseling materials.
101-4.430 Financial assistance.
101-4.435 Employment assistance to students.
101-4.440 Health and insurance benefits and services.
101-4.445 Marital or parental status.
101-4.450 Athletics.
101-4.455 Textbooks and curricular material.
Subpart E--Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
101-4.500 Employment.
101-4.505 Employment criteria.
101-4.510 Recruitment.
101-4.515 Compensation.
101-4.520 Job classification and structure.
101-4.525 Fringe benefits.
101-4.530 Marital or parental status.
101-4.535 Effect of state or local law or other requirements.
101-4.540 Advertising.
101-4.545 Pre-employment inquiries.
101-4.550 Sex as a bona fide occupational qualification.
Subpart F--Procedures
101-4.600 Notice of covered programs.
101-4.605 Enforcement procedures.
Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.
Source: 65 FR 52865, 52891, Aug. 30, 2000, unless otherwise noted.
Subpart A--Introduction
Sec. 101-4.100 Purpose and effective date.
The purpose of these Title IX regulations is to effectuate Title IX
of the Education Amendments of 1972, as amended (except sections 904 and
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687,
1688), which is designed to eliminate (with certain exceptions)
discrimination on the basis of sex in any education program or activity
receiving Federal financial assistance, whether or not such program or
activity is offered or sponsored by an educational institution as
defined in these Title IX regulations. The effective date of these Title
IX regulations shall be September 29, 2000.
Sec. 101-4.105 Definitions.
As used in these Title IX regulations, the term:
Administratively separate unit means a school, department, or
college of an educational institution (other than a local educational
agency) admission to which is independent of admission to any other
component of such institution.
[[Page 11]]
Admission means selection for part-time, full-time, special,
associate, transfer, exchange, or any other enrollment, membership, or
matriculation in or at an education program or activity operated by a
recipient.
Applicant means one who submits an application, request, or plan
required to be approved by an official of the Federal agency that awards
Federal financial assistance, or by a recipient, as a condition to
becoming a recipient.
Designated agency official means the Associate Administrator for
Civil Rights.
Educational institution means a local educational agency (LEA) as
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or
secondary school, or an applicant or recipient that is an institution of
graduate higher education, an institution of undergraduate higher
education, an institution of professional education, or an institution
of vocational education, as defined in this section.
Federal financial assistance means any of the following, when
authorized or extended under a law administered by the Federal agency
that awards such assistance:
(1) A grant or loan of Federal financial assistance, including funds
made available for:
(i) The acquisition, construction, renovation, restoration, or
repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages, or other funds extended to
any entity for payment to or on behalf of students admitted to that
entity, or extended directly to such students for payment to that
entity.
(2) A grant of Federal real or personal property or any interest
therein, including surplus property, and the proceeds of the sale or
transfer of such property, if the Federal share of the fair market value
of the property is not, upon such sale or transfer, properly accounted
for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at
nominal consideration, or at consideration reduced for the purpose of
assisting the recipient or in recognition of public interest to be
served thereby, or permission to use Federal property or any interest
therein without consideration.
(5) Any other contract, agreement, or arrangement that has as one of
its purposes the provision of assistance to any education program or
activity, except a contract of insurance or guaranty.
Institution of graduate higher education means an institution that:
(1) Offers academic study beyond the bachelor of arts or bachelor of
science degree, whether or not leading to a certificate of any higher
degree in the liberal arts and sciences;
(2) Awards any degree in a professional field beyond the first
professional degree (regardless of whether the first professional degree
in such field is awarded by an institution of undergraduate higher
education or professional education); or
(3) Awards no degree and offers no further academic study, but
operates ordinarily for the purpose of facilitating research by persons
who have received the highest graduate degree in any field of study.
Institution of professional education means an institution (except
any institution of undergraduate higher education) that offers a program
of academic study that leads to a first professional degree in a field
for which there is a national specialized accrediting agency recognized
by the Secretary of Education.
Institution of undergraduate higher education means:
(1) An institution offering at least two but less than four years of
college-level study beyond the high school level, leading to a diploma
or an associate degree, or wholly or principally creditable toward a
baccalaureate degree; or
(2) An institution offering academic study leading to a
baccalaureate degree; or
(3) An agency or body that certifies credentials or offers degrees,
but that may or may not offer academic study.
Institution of vocational education means a school or institution
(except an institution of professional or graduate or undergraduate
higher education) that has as its primary purpose preparation of
students to pursue a
[[Page 12]]
technical, skilled, or semiskilled occupation or trade, or to pursue
study in a technical field, whether or not the school or institution
offers certificates, diplomas, or degrees and whether or not it offers
full-time study.
Recipient means any State or political subdivision thereof, or any
instrumentality of a State or political subdivision thereof, any public
or private agency, institution, or organization, or other entity, or any
person, to whom Federal financial assistance is extended directly or
through another recipient and that operates an education program or
activity that receives such assistance, including any subunit,
successor, assignee, or transferee thereof.
Student means a person who has gained admission.
Title IX means Title IX of the Education Amendments of 1972, Public
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683,
1685, 1686, 1687, 1688).
Title IX regulations means the provisions set forth at Secs. 101-
4.100 through 101-4.605.
Transition plan means a plan subject to the approval of the
Secretary of Education pursuant to section 901(a)(2) of the Education
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational
institution operates in making the transition from being an educational
institution that admits only students of one sex to being one that
admits students of both sexes without discrimination.
Sec. 101-4.110 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the designated agency official finds that a
recipient has discriminated against persons on the basis of sex in an
education program or activity, such recipient shall take such remedial
action as the designated agency official deems necessary to overcome the
effects of such discrimination.
(b) Affirmative action. In the absence of a finding of
discrimination on the basis of sex in an education program or activity,
a recipient may take affirmative action consistent with law to overcome
the effects of conditions that resulted in limited participation therein
by persons of a particular sex. Nothing in these Title IX regulations
shall be interpreted to alter any affirmative action obligations that a
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp.,
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p.
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p.
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
(c) Self-evaluation. Each recipient education institution shall,
within one year of September 29, 2000:
(1) Evaluate, in terms of the requirements of these Title IX
regulations, its current policies and practices and the effects thereof
concerning admission of students, treatment of students, and employment
of both academic and non-academic personnel working in connection with
the recipient's education program or activity;
(2) Modify any of these policies and practices that do not or may
not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any
discrimination that resulted or may have resulted from adherence to
these policies and practices.
(d) Availability of self-evaluation and related materials.
Recipients shall maintain on file for at least three years following
completion of the evaluation required under paragraph (c) of this
section, and shall provide to the designated agency official upon
request, a description of any modifications made pursuant to paragraph
(c)(2) of this section and of any remedial steps taken pursuant to
paragraph (c)(3) of this section.
Sec. 101-4.115 Assurance required.
(a) General. Either at the application stage or the award stage,
Federal agencies must ensure that applications for Federal financial
assistance or awards
[[Page 13]]
of Federal financial assistance contain, be accompanied by, or be
covered by a specifically identified assurance from the applicant or
recipient, satisfactory to the designated agency official, that each
education program or activity operated by the applicant or recipient and
to which these Title IX regulations apply will be operated in compliance
with these Title IX regulations. An assurance of compliance with these
Title IX regulations shall not be satisfactory to the designated agency
official if the applicant or recipient to whom such assurance applies
fails to commit itself to take whatever remedial action is necessary in
accordance with Sec. 101-4.110(a) to eliminate existing discrimination
on the basis of sex or to eliminate the effects of past discrimination
whether occurring prior to or subsequent to the submission to the
designated agency official of such assurance.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended to provide real property or structures thereon, such
assurance shall obligate the recipient or, in the case of a subsequent
transfer, the transferee, for the period during which the real property
or structures are used to provide an education program or activity.
(2) In the case of Federal financial assistance extended to provide
personal property, such assurance shall obligate the recipient for the
period during which it retains ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient
for the period during which Federal financial assistance is extended.
(c) Form. (1) The assurances required by paragraph (a) of this
section, which may be included as part of a document that addresses
other assurances or obligations, shall include that the applicant or
recipient will comply with all applicable Federal statutes relating to
nondiscrimination. These include but are not limited to: Title IX of the
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
(2) The designated agency official will specify the extent to which
such assurances will be required of the applicant's or recipient's
subgrantees, contractors, subcontractors, transferees, or successors in
interest.
Sec. 101-4.120 Transfers of property.
If a recipient sells or otherwise transfers property financed in
whole or in part with Federal financial assistance to a transferee that
operates any education program or activity, and the Federal share of the
fair market value of the property is not upon such sale or transfer
properly accounted for to the Federal Government, both the transferor
and the transferee shall be deemed to be recipients, subject to the
provisions of Secs. 101-4.205 through 101-4.235(a).
Sec. 101-4.125 Effect of other requirements.
(a) Effect of other Federal provisions. The obligations imposed by
these Title IX regulations are independent of, and do not alter,
obligations not to discriminate on the basis of sex imposed by Executive
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
(b) Effect of State or local law or other requirements. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any State or local law or other requirement that would
render any applicant or student ineligible, or limit the eligibility of
any applicant or student, on the basis of sex, to practice any
occupation or profession.
(c) Effect of rules or regulations of private organizations. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any rule or regulation of any organization,
[[Page 14]]
club, athletic or other league, or association that would render any
applicant or student ineligible to participate or limit the eligibility
or participation of any applicant or student, on the basis of sex, in
any education program or activity operated by a recipient and that
receives Federal financial assistance.
Sec. 101-4.130 Effect of employment opportunities.
The obligation to comply with these Title IX regulations is not
obviated or alleviated because employment opportunities in any
occupation or profession are or may be more limited for members of one
sex than for members of the other sex.
Sec. 101-4.135 Designation of responsible employee and adoption of
grievance procedures.
(a) Designation of responsible employee. Each recipient shall
designate at least one employee to coordinate its efforts to comply with
and carry out its responsibilities under these Title IX regulations,
including any investigation of any complaint communicated to such
recipient alleging its noncompliance with these Title IX regulations or
alleging any actions that would be prohibited by these Title IX
regulations. The recipient shall notify all its students and employees
of the name, office address, and telephone number of the employee or
employees appointed pursuant to this paragraph.
(b) Complaint procedure of recipient. A recipient shall adopt and
publish grievance procedures providing for prompt and equitable
resolution of student and employee complaints alleging any action that
would be prohibited by these Title IX regulations.
Sec. 101-4.140 Dissemination of policy.
(a) Notification of policy. (1) Each recipient shall implement
specific and continuing steps to notify applicants for admission and
employment, students and parents of elementary and secondary school
students, employees, sources of referral of applicants for admission and
employment, and all unions or professional organizations holding
collective bargaining or professional agreements with the recipient,
that it does not discriminate on the basis of sex in the educational
programs or activities that it operates, and that it is required by
Title IX and these Title IX regulations not to discriminate in such a
manner. Such notification shall contain such information, and be made in
such manner, as the designated agency official finds necessary to
apprise such persons of the protections against discrimination assured
them by Title IX and these Title IX regulations, but shall state at
least that the requirement not to discriminate in education programs or
activities extends to employment therein, and to admission thereto
unless Secs. 101-4.300 through 101-4.310 do not apply to the recipient,
and that inquiries concerning the application of Title IX and these
Title IX regulations to such recipient may be referred to the employee
designated pursuant to Sec. 101-4.135, or to the designated agency
official.
(2) Each recipient shall make the initial notification required by
paragraph (a)(1) of this section within 90 days of September 29, 2000 or
of the date these Title IX regulations first apply to such recipient,
whichever comes later, which notification shall include publication in:
(i) Newspapers and magazines operated by such recipient or by
student, alumnae, or alumni groups for or in connection with such
recipient; and
(ii) Memoranda or other written communications distributed to every
student and employee of such recipient.
(b) Publications. (1) Each recipient shall prominently include a
statement of the policy described in paragraph (a) of this section in
each announcement, bulletin, catalog, or application form that it makes
available to any person of a type, described in paragraph (a) of this
section, or which is otherwise used in connection with the recruitment
of students or employees.
(2) A recipient shall not use or distribute a publication of the
type described in paragraph (b)(1) of this section that suggests, by
text or illustration, that such recipient treats applicants, students,
or employees differently on the basis of sex except as such treatment is
permitted by these Title IX regulations.
[[Page 15]]
(c) Distribution. Each recipient shall distribute without
discrimination on the basis of sex each publication described in
paragraph (b)(1) of this section, and shall apprise each of its
admission and employment recruitment representatives of the policy of
nondiscrimination described in paragraph (a) of this section, and shall
require such representatives to adhere to such policy.
Subpart B--Coverage
Sec. 101-4.200 Application.
Except as provided in Secs. 101-4.205 through 101-4.235(a), these
Title IX regulations apply to every recipient and to each education
program or activity operated by such recipient that receives Federal
financial assistance.
Sec. 101-4.205 Educational institutions and other entities controlled by
religious organizations.
(a) Exemption. These Title IX regulations do not apply to any
operation of an educational institution or other entity that is
controlled by a religious organization to the extent that application of
these Title IX regulations would not be consistent with the religious
tenets of such organization.
(b) Exemption claims. An educational institution or other entity
that wishes to claim the exemption set forth in paragraph (a) of this
section shall do so by submitting in writing to the designated agency
official a statement by the highest-ranking official of the institution,
identifying the provisions of these Title IX regulations that conflict
with a specific tenet of the religious organization.
Sec. 101-4.210 Military and merchant marine educational institutions.
These Title IX regulations do not apply to an educational
institution whose primary purpose is the training of individuals for a
military service of the United States or for the merchant marine.
Sec. 101-4.215 Membership practices of certain organizations.
(a) Social fraternities and sororities. These Title IX regulations
do not apply to the membership practices of social fraternities and
sororities that are exempt from taxation under section 501(a) of the
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership
of which consists primarily of students in attendance at institutions of
higher education.
(b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These
Title IX regulations do not apply to the membership practices of the
Young Men's Christian Association (YMCA), the Young Women's Christian
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire
Girls.
(c) Voluntary youth service organizations. These Title IX
regulations do not apply to the membership practices of a voluntary
youth service organization that is exempt from taxation under section
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the
membership of which has been traditionally limited to members of one sex
and principally to persons of less than nineteen years of age.
Sec. 101-4.220 Admissions.
(a) Admissions to educational institutions prior to June 24, 1973,
are not covered by these Title IX regulations.
(b) Administratively separate units. For the purposes only of this
section, Secs. 101-4.225 and 101-4.230, and Secs. 101-4.300 through 101-
4.310, each administratively separate unit shall be deemed to be an
educational institution.
(c) Application of Secs. 101-4.300 through 101-4.310. Except as
provided in paragraphs (d) and (e) of this section, Secs. 101-4.300
through 101-4.310 apply to each recipient. A recipient to which
Secs. 101-4.300 through 101-4.310 apply shall not discriminate on the
basis of sex in admission or recruitment in violation of Secs. 101-4.300
through 101-4.310.
(d) Educational institutions. Except as provided in paragraph (e) of
this section as to recipients that are educational institutions,
Secs. 101-4.300 through 101-4.310 apply only to institutions of
vocational education, professional education, graduate higher education,
and public institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education.
Secs. 101-4.300 through
[[Page 16]]
101-4.310 do not apply to any public institution of undergraduate higher
education that traditionally and continually from its establishment has
had a policy of admitting students of only one sex.
Sec. 101-4.225 Educational institutions eligible to submit transition plans.
(a) Application. This section applies to each educational
institution to which Secs. 101-4.300 through 101-4.310 apply that:
(1) Admitted students of only one sex as regular students as of June
23, 1972; or
(2) Admitted students of only one sex as regular students as of June
23, 1965, but thereafter admitted, as regular students, students of the
sex not admitted prior to June 23, 1965.
(b) Provision for transition plans. An educational institution to
which this section applies shall not discriminate on the basis of sex in
admission or recruitment in violation of Secs. 101-4.300 through 101-
4.310.
Sec. 101-4.230 Transition plans.
(a) Submission of plans. An institution to which Sec. 101-4.225
applies and that is composed of more than one administratively separate
unit may submit either a single transition plan applicable to all such
units, or a separate transition plan applicable to each such unit.
(b) Content of plans. In order to be approved by the Secretary of
Education, a transition plan shall:
(1) State the name, address, and Federal Interagency Committee on
Education Code of the educational institution submitting such plan, the
administratively separate units to which the plan is applicable, and the
name, address, and telephone number of the person to whom questions
concerning the plan may be addressed. The person who submits the plan
shall be the chief administrator or president of the institution, or
another individual legally authorized to bind the institution to all
actions set forth in the plan.
(2) State whether the educational institution or administratively
separate unit admits students of both sexes as regular students and, if
so, when it began to do so.
(3) Identify and describe with respect to the educational
institution or administratively separate unit any obstacles to admitting
students without discrimination on the basis of sex.
(4) Describe in detail the steps necessary to eliminate as soon as
practicable each obstacle so identified and indicate the schedule for
taking these steps and the individual directly responsible for their
implementation.
(5) Include estimates of the number of students, by sex, expected to
apply for, be admitted to, and enter each class during the period
covered by the plan.
(c) Nondiscrimination. No policy or practice of a recipient to which
Sec. 101-4.225 applies shall result in treatment of applicants to or
students of such recipient in violation of Secs. 101-4.300 through 101-
4.310 unless such treatment is necessitated by an obstacle identified in
paragraph (b)(3) of this section and a schedule for eliminating that
obstacle has been provided as required by paragraph (b)(4) of this
section.
(d) Effects of past exclusion. To overcome the effects of past
exclusion of students on the basis of sex, each educational institution
to which Sec. 101-4.225 applies shall include in its transition plan,
and shall implement, specific steps designed to encourage individuals of
the previously excluded sex to apply for admission to such institution.
Such steps shall include instituting recruitment programs that emphasize
the institution's commitment to enrolling students of the sex previously
excluded.
Sec. 101-4.235 Statutory amendments.
(a) This section, which applies to all provisions of these Title IX
regulations, addresses statutory amendments to Title IX.
(b) These Title IX regulations shall not apply to or preclude:
(1) Any program or activity of the American Legion undertaken in
connection with the organization or operation of any Boys State
conference, Boys Nation conference, Girls State conference, or Girls
Nation conference;
(2) Any program or activity of a secondary school or educational
institution specifically for:
[[Page 17]]
(i) The promotion of any Boys State conference, Boys Nation
conference, Girls State conference, or Girls Nation conference; or
(ii) The selection of students to attend any such conference;
(3) Father-son or mother-daughter activities at an educational
institution or in an education program or activity, but if such
activities are provided for students of one sex, opportunities for
reasonably comparable activities shall be provided to students of the
other sex;
(4) Any scholarship or other financial assistance awarded by an
institution of higher education to an individual because such individual
has received such award in a single-sex pageant based upon a combination
of factors related to the individual's personal appearance, poise, and
talent. The pageant, however, must comply with other nondiscrimination
provisions of Federal law.
(c) Program or activity or program means:
(1) All of the operations of any entity described in paragraphs
(c)(1)(i) through (iv) of this section, any part of which is extended
Federal financial assistance:
(i)(A) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(B) The entity of such State or 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
case of assistance to a State or local government;
(ii)(A) A college, university, or other postsecondary institution,
or a public system of higher education; or
(B) A local educational agency (as defined in section 8801 of title
20), system of vocational education, or other school system;
(iii)(A) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(1) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(2) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(B) 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
(iv) Any other entity that is established by two or more of the
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this
section.
(2)(i) Program or activity does not include any operation of an
entity that is controlled by a religious organization if the application
of 20 U.S.C. 1681 to such operation would not be consistent with the
religious tenets of such organization.
(ii) For example, all of the operations of a college, university, or
other postsecondary institution, including but not limited to
traditional educational operations, faculty and student housing, campus
shuttle bus service, campus restaurants, the bookstore, and other
commercial activities are part of a ``program or activity'' subject to
these Title IX regulations if the college, university, or other
institution receives Federal financial assistance.
(d)(1) Nothing in these Title IX regulations shall be construed to
require or prohibit any person, or public or private entity, to provide
or pay for any benefit or service, including the use of facilities,
related to an abortion. Medical procedures, benefits, services, and the
use of facilities, necessary to save the life of a pregnant woman or to
address complications related to an abortion are not subject to this
section.
(2) Nothing in this section shall be construed to permit a penalty
to be imposed on any person or individual because such person or
individual is seeking or has received any benefit or service related to
a legal abortion. Accordingly, subject to paragraph (d)(1) of this
section, no person shall be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any academic,
extracurricular, research, occupational training, employment, or other
educational program or activity operated
[[Page 18]]
by a recipient that receives Federal financial assistance because such
individual has sought or received, or is seeking, a legal abortion, or
any benefit or service related to a legal abortion.
Subpart C--Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
Sec. 101-4.300 Admission.
(a) General. No person shall, on the basis of sex, be denied
admission, or be subjected to discrimination in admission, by any
recipient to which Secs. 101-4.300 through 101-4.310 apply, except as
provided in Secs. 101-4.225 and 101-4.230.
(b) Specific prohibitions. (1) In determining whether a person
satisfies any policy or criterion for admission, or in making any offer
of admission, a recipient to which Secs. 101-4.300 through 101-4.310
apply shall not:
(i) Give preference to one person over another on the basis of sex,
by ranking applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of
persons of either sex who may be admitted; or
(iii) Otherwise treat one individual differently from another on the
basis of sex.
(2) A recipient shall not administer or operate any test or other
criterion for admission that has a disproportionately adverse effect on
persons on the basis of sex unless the use of such test or criterion is
shown to predict validly success in the education program or activity in
question and alternative tests or criteria that do not have such a
disproportionately adverse effect are shown to be unavailable.
(c) Prohibitions relating to marital or parental status. In
determining whether a person satisfies any policy or criterion for
admission, or in making any offer of admission, a recipient to which
Secs. 101-4.300 through 101-4.310 apply:
(1) Shall not apply any rule concerning the actual or potential
parental, family, or marital status of a student or applicant that
treats persons differently on the basis of sex;
(2) Shall not discriminate against or exclude any person on the
basis of pregnancy, childbirth, termination of pregnancy, or recovery
therefrom, or establish or follow any rule or practice that so
discriminates or excludes;
(3) Subject to Sec. 101-4.235(d), shall treat disabilities related
to pregnancy, childbirth, termination of pregnancy, or recovery
therefrom in the same manner and under the same policies as any other
temporary disability or physical condition; and
(4) Shall not make pre-admission inquiry as to the marital status of
an applicant for admission, including whether such applicant is ``Miss''
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of
an applicant for admission, but only if such inquiry is made equally of
such applicants of both sexes and if the results of such inquiry are not
used in connection with discrimination prohibited by these Title IX
regulations.
Sec. 101-4.305 Preference in admission.
A recipient to which Secs. 101-4.300 through 101-4.310 apply shall
not give preference to applicants for admission, on the basis of
attendance at any educational institution or other school or entity that
admits as students only or predominantly members of one sex, if the
giving of such preference has the effect of discriminating on the basis
of sex in violation of Secs. 101-4.300 through 101-4.310.
Sec. 101-4.310 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which Secs. 101-
4.300 through 101-4.310 apply shall not discriminate on the basis of sex
in the recruitment and admission of students. A recipient may be
required to undertake additional recruitment efforts for one sex as
remedial action pursuant to Sec. 101-4.110(a), and may choose to
undertake such efforts as affirmative action pursuant to Sec. 101-
4.110(b).
(b) Recruitment at certain institutions. A recipient to which
Secs. 101-4.300 through 101-4.310 apply shall not recruit primarily or
exclusively at educational institutions, schools, or entities that admit
as students only or predominantly members of one sex, if such actions
have the effect of discriminating on the basis of sex in violation of
Secs. 101-4.300 through 101-4.310.
[[Page 19]]
Subpart D--Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
Sec. 101-4.400 Education programs or activities.
(a) General. Except as provided elsewhere in these Title IX
regulations, no person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any academic, extracurricular, research,
occupational training, or other education program or activity operated
by a recipient that receives Federal financial assistance. Sections 101-
4.400 through 101-4.455 do not apply to actions of a recipient in
connection with admission of its students to an education program or
activity of a recipient to which Secs. 101-4.300 through 101-4.310 do
not apply, or an entity, not a recipient, to which Secs. 101-4.300
through 101-4.310 would not apply if the entity were a recipient.
(b) Specific prohibitions. Except as provided in Secs. 101-4.400
through 101-4.455, in providing any aid, benefit, or service to a
student, a recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether
such person satisfies any requirement or condition for the provision of
such aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid,
benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior,
sanctions, or other treatment;
(5) Apply any rule concerning the domicile or residence of a student
or applicant, including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing
significant assistance to any agency, organization, or person that
discriminates on the basis of sex in providing any aid, benefit, or
service to students or employees;
(7) Otherwise limit any person in the enjoyment of any right,
privilege, advantage, or opportunity.
(c) Assistance administered by a recipient educational institution
to study at a foreign institution. A recipient educational institution
may administer or assist in the administration of scholarships,
fellowships, or other awards established by foreign or domestic wills,
trusts, or similar legal instruments, or by acts of foreign governments
and restricted to members of one sex, that are designed to provide
opportunities to study abroad, and that are awarded to students who are
already matriculating at or who are graduates of the recipient
institution; Provided, that a recipient educational institution that
administers or assists in the administration of such scholarships,
fellowships, or other awards that are restricted to members of one sex
provides, or otherwise makes available, reasonable opportunities for
similar studies for members of the other sex. Such opportunities may be
derived from either domestic or foreign sources.
(d) Aids, benefits or services not provided by recipient. (1) This
paragraph (d) applies to any recipient that requires participation by
any applicant, student, or employee in any education program or activity
not operated wholly by such recipient, or that facilitates, permits, or
considers such participation as part of or equivalent to an education
program or activity operated by such recipient, including participation
in educational consortia and cooperative employment and student-teaching
assignments.
(2) Such recipient:
(i) Shall develop and implement a procedure designed to assure
itself that the operator or sponsor of such other education program or
activity takes no action affecting any applicant, student, or employee
of such recipient that these Title IX regulations would prohibit such
recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such
participation if such action occurs.
Sec. 101-4.405 Housing.
(a) Generally. A recipient shall not, on the basis of sex, apply
different rules or regulations, impose different fees or requirements,
or offer different services or benefits related to housing,
[[Page 20]]
except as provided in this section (including housing provided only to
married students).
(b) Housing provided by recipient. (1) A recipient may provide
separate housing on the basis of sex.
(2) Housing provided by a recipient to students of one sex, when
compared to that provided to students of the other sex, shall be as a
whole:
(i) Proportionate in quantity to the number of students of that sex
applying for such housing; and
(ii) Comparable in quality and cost to the student.
(c) Other housing. (1) A recipient shall not, on the basis of sex,
administer different policies or practices concerning occupancy by its
students of housing other than that provided by such recipient.
(2)(i) A recipient which, through solicitation, listing, approval of
housing, or otherwise, assists any agency, organization, or person in
making housing available to any of its students, shall take such
reasonable action as may be necessary to assure itself that such housing
as is provided to students of one sex, when compared to that provided to
students of the other sex, is as a whole:
(A) Proportionate in quantity; and
(B) Comparable in quality and cost to the student.
(ii) A recipient may render such assistance to any agency,
organization, or person that provides all or part of such housing to
students of only one sex.
Sec. 101-4.410 Comparable facilities.
A recipient may provide separate toilet, locker room, and shower
facilities on the basis of sex, but such facilities provided for
students of one sex shall be comparable to such facilities provided for
students of the other sex.
Sec. 101-4.415 Access to course offerings.
(a) A recipient shall not provide any course or otherwise carry out
any of its education program or activity separately on the basis of sex,
or require or refuse participation therein by any of its students on
such basis, including health, physical education, industrial, business,
vocational, technical, home economics, music, and adult education
courses.
(b)(1) With respect to classes and activities in physical education
at the elementary school level, the recipient shall comply fully with
this section as expeditiously as possible but in no event later than one
year from September 29, 2000. With respect to physical education classes
and activities at the secondary and post-secondary levels, the recipient
shall comply fully with this section as expeditiously as possible but in
no event later than three years from September 29, 2000.
(2) This section does not prohibit grouping of students in physical
education classes and activities by ability as assessed by objective
standards of individual performance developed and applied without regard
to sex.
(3) This section does not prohibit separation of students by sex
within physical education classes or activities during participation in
wrestling, boxing, rugby, ice hockey, football, basketball, and other
sports the purpose or major activity of which involves bodily contact.
(4) Where use of a single standard of measuring skill or progress in
a physical education class has an adverse effect on members of one sex,
the recipient shall use appropriate standards that do not have such
effect.
(5) Portions of classes in elementary and secondary schools, or
portions of education programs or activities, that deal exclusively with
human sexuality may be conducted in separate sessions for boys and
girls.
(6) Recipients may make requirements based on vocal range or quality
that may result in a chorus or choruses of one or predominantly one sex.
Sec. 101-4.420 Access to schools operated by LEAs.
A recipient that is a local educational agency shall not, on the
basis of sex, exclude any person from admission to:
(a) Any institution of vocational education operated by such
recipient; or
(b) Any other school or educational unit operated by such recipient,
unless such recipient otherwise makes available to such person, pursuant
to the same policies and criteria of admission,
[[Page 21]]
courses, services, and facilities comparable to each course, service,
and facility offered in or through such schools.
Sec. 101-4.425 Counseling and use of appraisal and counseling materials.
(a) Counseling. A recipient shall not discriminate against any
person on the basis of sex in the counseling or guidance of students or
applicants for admission.
(b) Use of appraisal and counseling materials. A recipient that uses
testing or other materials for appraising or counseling students shall
not use different materials for students on the basis of their sex or
use materials that permit or require different treatment of students on
such basis unless such different materials cover the same occupations
and interest areas and the use of such different materials is shown to
be essential to eliminate sex bias. Recipients shall develop and use
internal procedures for ensuring that such materials do not discriminate
on the basis of sex. Where the use of a counseling test or other
instrument results in a substantially disproportionate number of members
of one sex in any particular course of study or classification, the
recipient shall take such action as is necessary to assure itself that
such disproportion is not the result of discrimination in the instrument
or its application.
(c) Disproportion in classes. Where a recipient finds that a
particular class contains a substantially disproportionate number of
individuals of one sex, the recipient shall take such action as is
necessary to assure itself that such disproportion is not the result of
discrimination on the basis of sex in counseling or appraisal materials
or by counselors.
Sec. 101-4.430 Financial assistance.
(a) General. Except as provided in paragraphs (b) and (c) of this
section, in providing financial assistance to any of its students, a
recipient shall not:
(1) On the basis of sex, provide different amounts or types of such
assistance, limit eligibility for such assistance that is of any
particular type or source, apply different criteria, or otherwise
discriminate;
(2) Through solicitation, listing, approval, provision of
facilities, or other services, assist any foundation, trust, agency,
organization, or person that provides assistance to any of such
recipient's students in a manner that discriminates on the basis of sex;
or
(3) Apply any rule or assist in application of any rule concerning
eligibility for such assistance that treats persons of one sex
differently from persons of the other sex with regard to marital or
parental status.
(b) Financial aid established by certain legal instruments. (1) A
recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established pursuant to domestic or foreign wills, trusts, bequests, or
similar legal instruments or by acts of a foreign government that
require that awards be made to members of a particular sex specified
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial
assistance does not discriminate on the basis of sex.
(2) To ensure nondiscriminatory awards of assistance as required in
paragraph (b)(1) of this section, recipients shall develop and use
procedures under which:
(i) Students are selected for award of financial assistance on the
basis of nondiscriminatory criteria and not on the basis of availability
of funds restricted to members of a particular sex;
(ii) An appropriate sex-restricted scholarship, fellowship, or other
form of financial assistance is allocated to each student selected under
paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was
selected under paragraph (b)(2)(i) of this section because of the
absence of a scholarship, fellowship, or other form of financial
assistance designated for a member of that student's sex.
(c) Athletic scholarships. (1) To the extent that a recipient awards
athletic scholarships or grants-in-aid, it must provide reasonable
opportunities for such awards for members of each sex in proportion to
the number of students of each sex participating in interscholastic or
intercollegiate athletics.
[[Page 22]]
(2) A recipient may provide separate athletic scholarships or
grants-in-aid for members of each sex as part of separate athletic teams
for members of each sex to the extent consistent with this paragraph (c)
and Sec. 101-4.450.
Sec. 101-4.435 Employment assistance to students.
(a) Assistance by recipient in making available outside employment.
A recipient that assists any agency, organization, or person in making
employment available to any of its students:
(1) Shall assure itself that such employment is made available
without discrimination on the basis of sex; and
(2) Shall not render such services to any agency, organization, or
person that discriminates on the basis of sex in its employment
practices.
(b) Employment of students by recipients. A recipient that employs
any of its students shall not do so in a manner that violates Secs. 101-
4.500 through 101-4.550.
Sec. 101-4.440 Health and insurance benefits and services.
Subject to Sec. 101-4.235(d), in providing a medical, hospital,
accident, or life insurance benefit, service, policy, or plan to any of
its students, a recipient shall not discriminate on the basis of sex, or
provide such benefit, service, policy, or plan in a manner that would
violate Secs. 101-4.500 through 101-4.550 if it were provided to
employees of the recipient. This section shall not prohibit a recipient
from providing any benefit or service that may be used by a different
proportion of students of one sex than of the other, including family
planning services. However, any recipient that provides full coverage
health service shall provide gynecological care.
Sec. 101-4.445 Marital or parental status.
(a) Status generally. A recipient shall not apply any rule
concerning a student's actual or potential parental, family, or marital
status that treats students differently on the basis of sex.
(b) Pregnancy and related conditions. (1) A recipient shall not
discriminate against any student, or exclude any student from its
education program or activity, including any class or extracurricular
activity, on the basis of such student's pregnancy, childbirth, false
pregnancy, termination of pregnancy, or recovery therefrom, unless the
student requests voluntarily to participate in a separate portion of the
program or activity of the recipient.
(2) A recipient may require such a student to obtain the
certification of a physician that the student is physically and
emotionally able to continue participation as long as such a
certification is required of all students for other physical or
emotional conditions requiring the attention of a physician.
(3) A recipient that operates a portion of its education program or
activity separately for pregnant students, admittance to which is
completely voluntary on the part of the student as provided in paragraph
(b)(1) of this section, shall ensure that the separate portion is
comparable to that offered to non-pregnant students.
(4) Subject to Sec. 101-4.235(d), a recipient shall treat pregnancy,
childbirth, false pregnancy, termination of pregnancy and recovery
therefrom in the same manner and under the same policies as any other
temporary disability with respect to any medical or hospital benefit,
service, plan, or policy that such recipient administers, operates,
offers, or participates in with respect to students admitted to the
recipient's educational program or activity.
(5) In the case of a recipient that does not maintain a leave policy
for its students, or in the case of a student who does not otherwise
qualify for leave under such a policy, a recipient shall treat
pregnancy, childbirth, false pregnancy, termination of pregnancy, and
recovery therefrom as a justification for a leave of absence for as long
a period of time as is deemed medically necessary by the student's
physician, at the conclusion of which the student shall be reinstated to
the status that she held when the leave began.
Sec. 101-4.450 Athletics.
(a) General. No person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, be treated differently from
another person, or otherwise be discriminated
[[Page 23]]
against in any interscholastic, intercollegiate, club, or intramural
athletics offered by a recipient, and no recipient shall provide any
such athletics separately on such basis.
(b) Separate teams. Notwithstanding the requirements of paragraph
(a) of this section, a recipient may operate or sponsor separate teams
for members of each sex where selection for such teams is based upon
competitive skill or the activity involved is a contact sport. However,
where a recipient operates or sponsors a team in a particular sport for
members of one sex but operates or sponsors no such team for members of
the other sex, and athletic opportunities for members of that sex have
previously been limited, members of the excluded sex must be allowed to
try out for the team offered unless the sport involved is a contact
sport. For the purposes of these Title IX regulations, contact sports
include boxing, wrestling, rugby, ice hockey, football, basketball, and
other sports the purpose or major activity of which involves bodily
contact.
(c) Equal opportunity. (1) A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics shall
provide equal athletic opportunity for members of both sexes. In
determining whether equal opportunities are available, the designated
agency official will consider, among other factors:
(i) Whether the selection of sports and levels of competition
effectively accommodate the interests and abilities of members of both
sexes;
(ii) The provision of equipment and supplies;
(iii) Scheduling of games and practice time;
(iv) Travel and per diem allowance;
(v) Opportunity to receive coaching and academic tutoring;
(vi) Assignment and compensation of coaches and tutors;
(vii) Provision of locker rooms, practice, and competitive
facilities;
(viii) Provision of medical and training facilities and services;
(ix) Provision of housing and dining facilities and services;
(x) Publicity.
(2) For purposes of paragraph (c)(1) of this section, unequal
aggregate expenditures for members of each sex or unequal expenditures
for male and female teams if a recipient operates or sponsors separate
teams will not constitute noncompliance with this section, but the
designated agency official may consider the failure to provide necessary
funds for teams for one sex in assessing equality of opportunity for
members of each sex.
(d) Adjustment period. A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
elementary school level shall comply fully with this section as
expeditiously as possible but in no event later than one year from
September 29, 2000. A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
secondary or postsecondary school level shall comply fully with this
section as expeditiously as possible but in no event later than three
years from September 29, 2000.
Sec. 101-4.455 Textbooks and curricular material.
Nothing in these Title IX regulations shall be interpreted as
requiring or prohibiting or abridging in any way the use of particular
textbooks or curricular materials.
Subpart E--Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
Sec. 101-4.500 Employment.
(a) General. (1) No person shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination in employment, or recruitment, consideration, or
selection therefor, whether full-time or part-time, under any education
program or activity operated by a recipient that receives Federal
financial assistance.
(2) A recipient shall make all employment decisions in any education
program or activity operated by such recipient in a nondiscriminatory
manner and shall not limit, segregate, or classify applicants or
employees in any way that could adversely affect any applicant's or
employee's employment opportunities or status because of sex.
[[Page 24]]
(3) A recipient shall not enter into any contractual or other
relationship which directly or indirectly has the effect of subjecting
employees or students to discrimination prohibited by Secs. 101-4.500
through 101-4.550, including relationships with employment and referral
agencies, with labor unions, and with organizations providing or
administering fringe benefits to employees of the recipient.
(4) A recipient shall not grant preferences to applicants for
employment on the basis of attendance at any educational institution or
entity that admits as students only or predominantly members of one sex,
if the giving of such preferences has the effect of discriminating on
the basis of sex in violation of these Title IX regulations.
(b) Application. The provisions of Secs. 101-4.500 through 101-4.550
apply to:
(1) Recruitment, advertising, and the process of application for
employment;
(2) Hiring, upgrading, promotion, consideration for and award of
tenure, demotion, transfer, layoff, termination, application of nepotism
policies, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation, and changes in
compensation;
(4) Job assignments, classifications, and structure, including
position descriptions, lines of progression, and seniority lists;
(5) The terms of any collective bargaining agreement;
(6) Granting and return from leaves of absence, leave for pregnancy,
childbirth, false pregnancy, termination of pregnancy, leave for persons
of either sex to care for children or dependents, or any other leave;
(7) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(8) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, selection for tuition assistance, selection for sabbaticals
and leaves of absence to pursue training;
(9) Employer-sponsored activities, including social or recreational
programs; and
(10) Any other term, condition, or privilege of employment.
Sec. 101-4.505 Employment criteria.
A recipient shall not administer or operate any test or other
criterion for any employment opportunity that has a disproportionately
adverse effect on persons on the basis of sex unless:
(a) Use of such test or other criterion is shown to predict validly
successful performance in the position in question; and
(b) Alternative tests or criteria for such purpose, which do not
have such disproportionately adverse effect, are shown to be
unavailable.
Sec. 101-4.510 Recruitment.
(a) Nondiscriminatory recruitment and hiring. A recipient shall not
discriminate on the basis of sex in the recruitment and hiring of
employees. Where a recipient has been found to be presently
discriminating on the basis of sex in the recruitment or hiring of
employees, or has been found to have so discriminated in the past, the
recipient shall recruit members of the sex so discriminated against so
as to overcome the effects of such past or present discrimination.
(b) Recruitment patterns. A recipient shall not recruit primarily or
exclusively at entities that furnish as applicants only or predominantly
members of one sex if such actions have the effect of discriminating on
the basis of sex in violation of Secs. 101-4.500 through 101-4.550.
Sec. 101-4.515 Compensation.
A recipient shall not make or enforce any policy or practice that,
on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex at a
rate less than that paid to employees of the opposite sex for equal work
on jobs the performance of which requires equal skill, effort, and
responsibility, and that are performed under similar working conditions.
Sec. 101-4.520 Job classification and structure.
A recipient shall not:
[[Page 25]]
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority
lists, career ladders, or tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority
systems, career ladders, or tenure systems for similar jobs, position
descriptions, or job requirements that classify persons on the basis of
sex, unless sex is a bona fide occupational qualification for the
positions in question as set forth in Sec. 101-4.550.
Sec. 101-4.525 Fringe benefits.
(a) ``Fringe benefits'' defined. For purposes of these Title IX
regulations, fringe benefits means: Any medical, hospital, accident,
life insurance, or retirement benefit, service, policy or plan, any
profit-sharing or bonus plan, leave, and any other benefit or service of
employment not subject to the provision of Sec. 101-4.515.
(b) Prohibitions. A recipient shall not:
(1) Discriminate on the basis of sex with regard to making fringe
benefits available to employees or make fringe benefits available to
spouses, families, or dependents of employees differently upon the basis
of the employee's sex;
(2) Administer, operate, offer, or participate in a fringe benefit
plan that does not provide for equal periodic benefits for members of
each sex and for equal contributions to the plan by such recipient for
members of each sex; or
(3) Administer, operate, offer, or participate in a pension or
retirement plan that establishes different optional or compulsory
retirement ages based on sex or that otherwise discriminates in benefits
on the basis of sex.
Sec. 101-4.530 Marital or parental status.
(a) General. A recipient shall not apply any policy or take any
employment action:
(1) Concerning the potential marital, parental, or family status of
an employee or applicant for employment that treats persons differently
on the basis of sex; or
(2) Which is based upon whether an employee or applicant for
employment is the head of household or principal wage earner in such
employee's or applicant's family unit.
(b) Pregnancy. A recipient shall not discriminate against or exclude
from employment any employee or applicant for employment on the basis of
pregnancy, childbirth, false pregnancy, termination of pregnancy, or
recovery therefrom.
(c) Pregnancy as a temporary disability. Subject to Sec. 101-
4.235(d), a recipient shall treat pregnancy, childbirth, false
pregnancy, termination of pregnancy, recovery therefrom, and any
temporary disability resulting therefrom as any other temporary
disability for all job-related purposes, including commencement,
duration, and extensions of leave, payment of disability income, accrual
of seniority and any other benefit or service, and reinstatement, and
under any fringe benefit offered to employees by virtue of employment.
(d) Pregnancy leave. In the case of a recipient that does not
maintain a leave policy for its employees, or in the case of an employee
with insufficient leave or accrued employment time to qualify for leave
under such a policy, a recipient shall treat pregnancy, childbirth,
false pregnancy, termination of pregnancy, and recovery therefrom as a
justification for a leave of absence without pay for a reasonable period
of time, at the conclusion of which the employee shall be reinstated to
the status that she held when the leave began or to a comparable
position, without decrease in rate of compensation or loss of
promotional opportunities, or any other right or privilege of
employment.
Sec. 101-4.535 Effect of state or local law or other requirements.
(a) Prohibitory requirements. The obligation to comply with
Secs. 101-4.500 through 101-4.550 is not obviated or alleviated by the
existence of any State or local law or other requirement that imposes
prohibitions or limits upon employment of members of one sex that are
not imposed upon members of the other sex.
(b) Benefits. A recipient that provides any compensation, service,
or benefit to members of one sex pursuant to a State or local law or
other requirement shall provide the same compensation,
[[Page 26]]
service, or benefit to members of the other sex.
Sec. 101-4.540 Advertising.
A recipient shall not in any advertising related to employment
indicate preference, limitation, specification, or discrimination based
on sex unless sex is a bona fide occupational qualification for the
particular job in question.
Sec. 101-4.545 Pre-employment inquiries.
(a) Marital status. A recipient shall not make pre-employment
inquiry as to the marital status of an applicant for employment,
including whether such applicant is ``Miss'' or ``Mrs.''
(b) Sex. A recipient may make pre-employment inquiry as to the sex
of an applicant for employment, but only if such inquiry is made equally
of such applicants of both sexes and if the results of such inquiry are
not used in connection with discrimination prohibited by these Title IX
regulations.
Sec. 101-4.550 Sex as a bona fide occupational qualification.
A recipient may take action otherwise prohibited by Secs. 101-4.500
through 101-4.550 provided it is shown that sex is a bona fide
occupational qualification for that action, such that consideration of
sex with regard to such action is essential to successful operation of
the employment function concerned. A recipient shall not take action
pursuant to this section that is based upon alleged comparative
employment characteristics or stereotyped characterizations of one or
the other sex, or upon preference based on sex of the recipient,
employees, students, or other persons, but nothing contained in this
section shall prevent a recipient from considering an employee's sex in
relation to employment in a locker room or toilet facility used only by
members of one sex.
Subpart F--Procedures
Sec. 101-4.600 Notice of covered programs.
Within 60 days of September 29, 2000, each Federal agency that
awards Federal financial assistance shall publish in the Federal
Register a notice of the programs covered by these Title IX regulations.
Each such Federal agency shall periodically republish the notice of
covered programs to reflect changes in covered programs. Copies of this
notice also shall be made available upon request to the Federal agency's
office that enforces Title IX.
Sec. 101-4.605 Enforcement procedures.
The investigative, compliance, and enforcement procedural provisions
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title
VI'') are hereby adopted and applied to these Title IX regulations.
These procedures may be found at 41 CFR part 101-6, subpart 101-6.2.
PART 101-5--CENTRALIZED SERVICES IN FEDERAL BUILDINGS AND COMPLEXES--
Table of Contents
Sec.
101-5.000 Scope of part.
Subpart 101-5.1--General
101-5.100 Scope of subpart.
101-5.101 Applicability.
101-5.102 Definitions.
101-5.103 Policy.
101-5.104 Economic feasibility of centralized services.
101-5.104-1 General.
101-5.104-2 Basis for determining economic feasibility.
101-5.104-3 Data requirements for feasibility studies.
101-5.104-4 Scheduling feasibility studies.
101-5.104-5 Designating agency representatives.
101-5.104-6 Conduct of feasibility studies.
101-5.104-7 Administrator's determination.
101-5.105 Operation of the centralized facility.
101-5.106 Agency committees.
Subpart 101-5.2--[Reserved]
Subpart 101-5.3--Federal Employee Health Services
101-5.300 Scope of subpart.
101-5.301 Applicability.
101-5.302 Objective.
101-5.303 Guiding principles.
101-5.304 Type of occupational health services.
101-5.305 Agency participation.
101-5.306 Economic feasibility.
101-5.307 Public Health Service.
Subparts 101-5.4--101-5.48 [Reserved]
[[Page 27]]
Subpart 101-5.49--Forms, Reports, and Instructions
101-5.4900 Scope of subpart.
Authority: Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c).
Sec. 101-5.000 Scope of part.
This part prescribes the methods by which the General Services
Administration provides for establishment of centralized services in
Federal buildings or complexes occupied by a number of executive
agencies.
[56 FR 33873, July 24, 1991]
Subpart 101-5.1--General
Source: 30 FR 4199, Mar. 31, 1965, unless otherwise noted.
Sec. 101-5.100 Scope of subpart.
This subpart states general policies, guidelines, and procedures for
establishing centralized services in multioccupant Federal buildings.
[42 FR 35853, July 12, 1977]
Sec. 101-5.101 Applicability.
The regulations in this part apply to all executive agencies which
occupy space in or are prospective occupants of multi-occupant Federal
buildings located in the United States. In appropriate circumstances,
the centralized services provided pursuant to this part are extended to
agencies occupying other Federal buildings in the same geographical
area. For purposes of this part, reference to Federal buildings may be
deemed to include, when appropriate, leased buildings or specific leased
space in a commercial building under the control of GSA.
[56 FR 33873, July 24, 1991]
Sec. 101-5.102 Definitions.
(a) Centralized services means those central supporting and
administrative services and facilities provided to occupying agencies in
Federal buildings or nearby locations in lieu of each agency providing
the same services or facilities for its own use. This includes those
common administrative services provided by a Cooperative Administrative
Support Unit (CASU). It does not include such common building features
as cafeterias, blind stands, loading platforms, auditoriums,
incinerators, or similar facilities. Excluded are interagency fleet
management centers established pursuant to Public Law 766, 83d Congress,
and covered by part 101-39 of this chapter.
(b) Occupying agency means any Federal agency assigned space in a
building or complex for which GSA has oversight of, or responsibility
for the functions of operation and maintenance in addition to space
assignment.
(c) Cooperative Administrative Support Unit (CASU) means an
organized mechanism for providing administrative services for agencies
in multi-tenant federally occupied buildings.
[56 FR 33873, July 24, 1991]
Sec. 101-5.103 Policy.
To the extent practicable, GSA will provide or arrange for the
provision of centralized services whenever such services insure
increased efficiency and economy to the Government without hampering
program activities or essential internal administration of the agencies
to be served.
Sec. 101-5.104 Economic feasibility of centralized services.
Sec. 101-5.104-1 General.
GSA is currently providing various centralized services to Federal
agencies in such fields as office and storage space, supplies and
materials, communications, records management, transportation services,
and printing and reprographics. Other centralized CASU's may be
providing supporting services or activities such as health units, use of
training devices and facilities, pistol ranges, and central facilities
for receipt and dispatch of mail. Consolidation and sharing is
frequently feasible with resulting economies in personnel, equipment,
and space. Opportunities to effect economies through planned
consolidation of such services occur particularly during the design
stage of the construction of new Federal buildings, or the renovations
to existing buildings. Opportunities may also occur as a result of needs
[[Page 28]]
assessments jointly conducted by local agencies.
[56 FR 33873, July 24, 1991]
Sec. 101-5.104-2 Basis for determining economic feasibility.
(a) Whenever possible, determination of the economic feasibility of
a proposed centralized service shall be based upon standard data on the
relationship of the size of the Federal building, the number of
occupants, location, and other factors pertinent to the type of
centralized service being considered.
(b) In the absence of standard data on which a determination of
economic feasibility can be based, or where such data must be
supplemented by additional factual information, a formal feasibility
study may be made by GSA or a CASU workgroup, in coordination with local
agencies to be involved, prior to a final determination to proceed with
the furnishing of a centralized service. Generally, a formal feasibility
study will be made only if provision of the proposed centralized service
would involve the pooling of staff, equipment, and space which occupying
agencies otherwise would be required to use in providing the service for
themselves. Examples of centralized services which may require formal
studies include printing and duplicating plants and similar facilities.
(c) On the basis of experience under the centralized services
program, GSA will develop criteria as to cost comparisons, production
needs, building population, number of agencies involved, and other
appropriate factors for consideration in determining the practicability
of establishing various types of centralized services.
[30 FR 4199, Mar. 31, 1965, as amended at 56 FR 33874, July 24, 1991]
Sec. 101-5.104-3 Data requirements for feasibility studies.
(a) The data requirements for feasibility studies may vary from
program to program, but shall be standard within any single program.
Such data shall disclose the costs resulting from provisions of the
service on a centralized basis as compared to the same service provided
separately by each occupying agency, including the costs of personnel
assigned to provide the service, comparative space needs, equipment use,
and any other pertinent factors.
(b) Wherever feasible and appropriate, data will be secured directly
from the prospective occupying agencies, subject to necessary
verification procedures. Suitable standard formats and necessary
instructions for submission of data will be prescribed in applicable
subchapters of chapter 101.
(c) Agencies required to submit data for a feasibility study will be
furnished with copies of the prescribed reporting forms and such
assistance as may be needed to assure their accurate and timely
completion.
[30 FR 4199, Mar. 31, 1965, as amended at 56 FR 33874, July 24, 1991]
Sec. 101-5.104-4 Scheduling feasibility studies.
The schedule of feasibility studies will be coordinated by GSA with
its construction, space management, and buildings management programs.
Before initiating the study, the Administrator of General Services, or
his authorized designee, will give at least 30 days' notice to the head
of each agency that would be served by the proposed centralized
facility. Such notice will contain an indication of the cost elements
involved and the general procedures to be followed in the study.
Sec. 101-5.104-5 Designating agency representatives.
The head of each agency receiving a GSA notice regarding a scheduled
feasibility study will be requested to designate one or more officials
at the location where the study will be made who may consult with
authorized GSA representatives. Such information and assistance as is
required or pertinent for an adequate review of the feasibility of the
proposed centralized service shall be made available to GSA through the
designated agency representatives.
Sec. 101-5.104-6 Conduct of feasibility studies.
An initial meeting of the representatives of prospective occupying
agencies will be held to discuss the objectives and detailed procedures
to be followed in the conduct of each feasibility
[[Page 29]]
study. Arrangements will be made at this meeting for securing all
necessary data in accordance with Sec. 101-5.104-3.
Sec. 101-5.104-7 Administrator's determination.
(a) The Administrator of General Services will determine, on the
basis of the feasibility study, whether provision of a centralized
service meets the criteria for increased economy, efficiency, and
service, with due regard to the program and internal administrative
requirements of the agencies to be served. The Director of the Office of
Management and Budget and the head of each agency affected will be
advised of the Administrator's determination and of the reasons
therefor. Each determination to provide a centralized service shall
include a formal report containing an explanation of the advantages to
be gained, a comparison of estimated annual costs between the proposed
centralized operation and separate agency operations, and a statement of
the date the centralized facility will be fully operational.
(b) While a formal appeals procedure is not prescribed, any agency
desiring to explain its inability to participate in the use of a
centralized service may do so through a letter to the Director of the
Office of Management and Budget, with a copy to the Administrator of
General Services.
[42 FR 35853, July 12, 1977]
Sec. 101-5.105 Operation of the centralized facility.
(a) GSA will continually appraise the operation of centralized
facilities to insure their continued justification in terms of economy
and efficiency. Centralized services provided pursuant to the regulation
may be discontinued or curtailed if no actual savings or operating
improvements are realized after a minimum operating period of one year.
Occupying agencies will be consulted regarding the timing of curtailment
or discontinuance of any centralized services and the heads of such
agencies notified at least 120 days in advance of each action.
(b) Where mutual agreement is reached, an agency other than GSA may
be designated by the Administrator of General Services to administer the
centralized service.
(c) Arrangements with regard to financing will conform to the
special requirements of each type of centralized service and to existing
law. Normally, reimbursement will be made for the use of established
services except where the cost is nominal or where reimbursement may not
be practicable.
[30 FR 4199, Mar. 31, 1965, as amended at 56 FR 33874, July 24, 1991]
Sec. 101-5.106 Agency committees.
(a) Establishment. An occupying agency committee will be established
by GSA if one does not exist, to assist the occupying agency, or such
other agency as may be responsible, in the cooperative use of the
centralized services, as defined in 101-5.102(a), provided in a Federal
building. Generally, such a committee will be established when the
problems of administration and coordination necessitate a formal method
of consultation and discussion among occupying agencies.
(b) Membership. Each occupying agency of a Federal building is
entitled to membership on an agency committee. The chairperson of each
such committee shall be a GSA employee designated by the appropriate GSA
Regional Administrator, except when another agency had been designated
to administer the centralized service. In this instance, the chairperson
shall be an employee of such other agency as designated by competent
authority within that agency.
(c) Activities. Agency committees shall be advisory in nature and
shall be concerned with the effectiveness of centralized services in the
building. Recommendations of an agency committee will be forwarded by
the chairman to the appropriate GSA officials for consideration and
decision.
(d) Reports. A resume of the minutes of each meeting of an agency
committee shall be furnished to each member of the committee and to the
appropriate GSA Regional Administrator.
[30 FR 4199, Mar. 31, 1965, as amended at 56 FR 33874, July 24, 1991]
Subpart 101-5.2--[Reserved]
[[Page 30]]
Subpart 101-5.3--Federal Employee Health Services
Authority: Chapter 865, 60 Stat. 903; 5 U.S.C. 7901.
Source: 30 FR 12883, Oct. 9, 1965, unless otherwise noted.
Sec. 101-5.300 Scope of subpart.
This subpart 101-5.3 states the objective, guiding principles,
criteria, and general procedures in connection with the establishment
and operation of Federal employee health services in buildings managed
by GSA.
Sec. 101-5.301 Applicability.
This subpart 101-5.3 is applicable to all Federal agencies which
occupy space in or are prospective occupying agencies of a building or
group of adjoining buildings managed by GSA.
Sec. 101-5.302 Objective.
It is the objective of GSA to provide or arrange for appropriate
health service programs in all Government-owned and leased buildings, or
groups of adjoining buildings, which it manages where the building
population warrants, where other Federal medical facilities are not
available, and, where the number of the occupying agencies indicating a
willingness to participate in such a program on a reimbursable basis
makes it financially feasible.
Sec. 101-5.303 Guiding principles.
The following principles will control the scope of the health
services to be provided in keeping with the objective:
(a) Employees who work in groups of 300 or more, counting employees
of all departments or agencies who are scheduled to be on duty at one
time in the same building or group of buildings in the same locality
will constitute the minimum number of employees required to warrant the
establishment of a health service of a scope specified in Sec. 101-
5.304.
(b) As an exception to paragraph (a) of this section, health
services of the scope specified in Sec. 101-5.304 may be provided for
employees who work in groups of less than 300 where the employing
department or agency determines that working conditions involving
unusual health risks warrant such provision.
(c) Treatment and medical care in performance-of-duty cases will be
provided to employees as set forth in the Federal Employees'
Compensation Act (5 U.S.C. 751 et seq.).
(d) Reimbursable costs for providing health services will be based
on an operating budget which is a summary of all costs required to
operate the health service. The reimbursement cost is prorated to
participating agencies by means of a per capital formula computed by
dividing the operating budget of the health service by the total number
of employees sponsored for service. The size of the Federal population
served, the compensation of the employees of the health unit, and other
factors of medical economics prevalent in the area are factors which
affect the local reimbursement cost. Further, in appropriate cases where
more than one health unit is servicing employees housed in the same
general locality, costs may be equalized by combining the operating
budgets of all such units and dividing the total of the operating
budgets by the number of employees sponsored. Special industrial
conditions or othe abnormal health or accident risk environments may
increase the per capita cost.
[30 FR 12883, Oct. 9, 1965, as amended at 35 FR 6651, Apr. 25, 1970]
Sec. 101-5.304 Type of occupational health services.
The type of occupational health services made available to occupying
agencies will be as follows:
(a) Emergency diagnosis and first treatment of injury or illness
that become necessary during working hours and that are within the
competence of the professional staff and facilities of the health
service unit, whether or not such injury was sustained by the employee
while in the performance of duty or whether or not such illness was
caused by his employment. In cases where the necessary first treatment
is outside the competence of the health service staff and facilites,
conveyance of the employee to a nearby physician or suitable community
medical facility
[[Page 31]]
may be provided at Government expense at the request of, or on behalf
of, the employee.
(b) Preemployment examinations of persons selected for appointment.
(c) Such inservice examinations of employees as the participating
agency determines to be necessary, such as voluntary employee health
maintenance examinations which agencies may request for selected
employees. Such examinations may be offered on a limited formula plan to
all participating agencies when the resources of the health service
staff and facilities will permit. Alternatively, when agencies are
required to limit the cost of an occupational health services program,
the provision of inservice examinations may be provided to selected
employees of individual agencies and reimbursed on an individual basis.
(d) Administration, in the discretion of the responsible health
service unit physician, of treatments and medications
(1) Furnished by the employee and prescribed in writing by his
personal physician as reasonably necessary to maintain the employee at
work, and
(2) Prescribed by a physician providing medical care in performance-
of-duty injury or illness cases under the Federal Employees'
Compensation Act.
(e) Preventive services within the competence of the professional
staff
(1) To appraise and report work environment health hazards as an aid
in preventing and controlling health risks;
(2) To provide health education to encourage employees to maintain
personal health; and
(3) To provide specific disease screening examinations and
immunizations.
(f) In addition, employees may be referred, upon their request, to
private physicians, dentists, and other community health resources.
[30 FR 12883, Oct. 9, 1965, as amended at 35 FR 6651, Apr. 25, 1970]
Sec. 101-5.305 Agency participation.
At the time the space requirements for a building or a group of
adjoining buildings are developed by GSA, the prospective occupying
agencies will be canvassed by GSA to determine if they wish to
participate in the occupational health services program. Each agency
desiring to participate in the program will be requested to furnish GSA
with a written commitment, signed by an authorized official, that it is
prepared to reimburse GSA, or such other agency as is designated
pursuant to Sec. 101-5.105(b), on a yearly per capita basis for each of
its employees housed in the building or buildings covered by the
program.
Sec. 101-5.306 Economic feasibility.
(a) The studies by GSA which lead to the development of space
requirements and the determinations made as the result thereof will
constitute the feasibility studies and the Administrator's determination
contemplated by Sec. 101-5.104.
(b) Each determination to provide health services will be governed
by the principles stated in Sec. 101-5.303 and will be in consonance
with the general standards and guidelines furnished Federal agencies by
the Public Health Service of the Department of Health, Education, and
Welfare.
Sec. 101-5.307 Public Health Service.
(a) The only authorized contact point for assistance of and
consultation with the Public Health Service is the Federal Employee
Health Programs, Division of Hospitals, Public Health Service,
Washington, DC 20201. Other Federal agencies may be designated by the
GSA Regional Administrator, pursuant to Sec. 101-5.105(b) to operate
occupational health services. Designated agencies should contact the
Public Health Service directly on all matters dealing with the
establishment and operation of these services.
(b) Public Health Service should be consulted by the designated
agency on such matters as types, amounts, and approximate cost of
necessary equipment; the scope of the services to be provided if it is
affected by the amount of space and number of building occupants; types
and amounts of supplies, materials, medicines, etc., which should be
stocked; and the approximate cost of personnel staffing in cases where
this method of operation is chosen, etc. PHS should also be asked to
develop and monitor standards under
[[Page 32]]
which each health unit would be operated.
Subparts 101-5.4--101-5.48 [Reserved]
Subpart 101-5.49--Forms, Reports, and Instructions
Sec. 101-5.4900 Scope of subpart.
This subpart contains forms, reports, and related instructions used
in connection with the regulations on centralized services in Federal
buildings prescribed in this part 101-5.
[30 FR 4359, Apr. 3, 1965]
PART 101-6--MISCELLANEOUS REGULATIONS--Table of Contents
Sec.
101-6.000 Scope of part.
Subpart 101-6.1 [Reserved]
Subpart 101-6.2--Nondiscrimination in Programs Receiving Federal
Financial Assistance
101-6.201 Scope of subpart.
101-6.202 Purpose.
101-6.203 Application of subpart.
101-6.204 Discrimination prohibited.
101-6.204-1 General.
101-6.204-2 Specific discriminatory actions prohibited.
101-6.204-3 Special programs.
101-6.205 Assurances required.
101-6.205-1 General.
101-6.205-2 Continuing State programs.
101-6.205-3 Elementary and secondary schools.
101-6.205-4 Applicability of assurances.
101-6.206 Illustrative applications.
101-6.207--101-6.208 [Reserved]
101-6.209 Compliance information.
101-6.209-1 Cooperation and assistance.
101-6.209-2 Compliance reports.
101-6.209-3 Access to sources of information.
101-6.209-4 Information to beneficiaries and participants.
101-6.210 Conduct of investigations.
101-6.210-1 Periodic compliance reviews.
101-6.210-2 Complaints.
101-6.210-3 Investigations.
101-6.210-4 Resolution of matters.
101-6.210-5 Intimidatory or retaliatory acts prohibited.
101-6.211 Procedure for effecting compliance.
101-6.211-1 General.
101-6.211-2 Noncompliance with Sec. 101-6.205.
101-6.211-3 Termination of or refusal to grant or to continue Federal
financial assistance.
101-6.211-4 Other means authorized by law.
101-6.212 Hearings.
101-6.212-1 Opportunity for hearing.
101-6.212-2 Time and place of hearing.
101-6.212-3 Right to counsel.
101-6.212-4 Procedures, evidence, and record.
101-6.212-5 Consolidated or joint hearings.
101-6.213 Decisions and notices.
101-6.213-1 Decision by person other than the responsible GSA official.
101-6.213-2 Decisions on record or review by the responsible GSA
official.
101-6.213-3 Decisions on record where a hearing is waived.
101-6.213-4 Rulings required.
101-6.213-5 Approval by Administrator.
101-6.213-6 Content of orders.
101-6.213-7 Post termination proceedings.
101-6.214 Judicial review.
101-6.215 Effect on other regulations; forms and instructions.
101-6.215-1 Effect on other regulations.
101-6.215-2 Forms and instructions.
101-6.215-3 Supervision and coordination.
101-6.216 Definitions.
101-6.217 Laws authorizing Federal financial assistance for programs to
which this subpart applies.
Subpart 101-6.3--Ridesharing
101-6.300 Cross-reference to the Federal Management Regulation (FMR) 41
CFR chapter 102 parts 1 through 220.
Subpart 101-6.4--Official Use of Government Passenger Carriers Between
Residence and Place of Employment
101-6.400 Cross-reference to the Federal Management Regulation (FMR)
(41 CFR chapter 102, parts 102-1 through 102-220).
Subpart 101-6.5--Code of Ethics for Government Service
101-6.500 Scope of subpart.
Subpart 101-6.6--Fire Protection (Firesafety) Engineering
101-6.600 Cross-reference to the Federal Management Regulation (FMR) 41
CFR chapter 102 parts 1 through 220.
Subparts 101-6.7--101-6.9 [Reserved]
Subpart 101-6.10--Federal Advisory Committee Management
101-6.1001 Cross-reference to the Federal Management Regulation (FMR)
(41 CFR chapter 102, parts 102-1 through 102-220).
[[Page 33]]
Subparts 101-6.11--101-6.20 [Reserved]
Subpart 101-6.21--Intergovernmental Review of General Services
Administration Programs and Activities
101-6.2100 Scope of subpart.
101-6.2101 What is the purpose of these regulations?
101-6.2102 What definitions apply to these regulations?
101-6.2103 What programs and activities of GSA are subject to these
regulations?
101-6.2104 What are the Administrator's general responsibililties under
the Order?
101-6.2105 What is the Administrator's obligation with respect to
Federal interagency coordination?
101-6.2106 What procedures apply to the selection of programs and
activities under these regulations?
101-6.2107 How does the Administrator communicate with State and local
officials concerning GSA's programs and activities?
101-6.2108 How does the Administrator provide States an opportunity to
comment on proposed Federal financial assistance and direct
Federal development?
101-6.2109 How does the Administrator receive and respond to comments?
101-6.2110 How does the Administrator make efforts to accommodate
intergovernmental concerns?
101-6.2111 What are the Administrator's obligations in interstate
situations?
101-6.2112 How may a State simplify, consolidate, or substitute
federally required State plans?
101-6.2113 May the Administrator waive any provision of these
regulations?
Subparts 101-6.22--101-6.48 [Reserved]
Subpart 101-6.49--Illustrations
101-6.4900 Scope of subpart.
101-6.4901 [Reserved]
101-6.4902 Format of certification required for budget submissions of
estimates of obligations in excess of $100,000 for
acquisitions of real and related personal property.
Authority: 31 U.S.C. 1344(e)(1); 40 U.S.C. 486(c).
Sec. 101-6.000 Scope of part.
This part sets forth miscellaneous regulations regarding Federal
Property Management Regulations matters which do not come within the
scope of any other subchapter of chapter 101.
(5 U.S.C. 5724, and E.O. 11012, 27 FR 2983; 3 CFR, 1959-1963 Comp., p.
591)
[29 FR 15972, Dec. 1, 1964]
Subpart 101-6.1 [Reserved]
Subpart 101-6.2--Nondiscrimination in Programs Receiving Federal
Financial Assistance
Authority: Sec. 602, 78 Stat. 252; 42 U.S.C. 2000d-1.
Source: 29 FR 16287, Dec. 4, 1964, unless otherwise noted.
Sec. 101-6.201 Scope of subpart.
This subpart provides the regulations of the General Services
Administration (GSA) under title VI of the Civil Rights Act of 1964 (52
U.S.C. 2000d--2000d-4) concerning nondiscrimination in federally
assisted programs in connection with which Federal financial assistance
is extended under laws administered in whole or in part by GSA.
[38 FR 17973, July 5, 1973]
Sec. 101-6.202 Purpose.
The purpose of this subpart is to effectuate the provisions of title
VI of the Civil Rights Act of 1964 (hereinafter referred to as the
``Act'') to the end that no person in the United States shall, on the
ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be otherwise subjected
to discrimination under any program or activity receiving Federal
financial assistance from GSA.
Sec. 101-6.203 Application of subpart.
(a) Subject to paragraph (b) of this section, this subpart applies
to any program for which Federal financial assistance is authorized
under a law administered in whole or in part by GSA, including the laws
listed in Sec. 101-6.217. It applies to money paid, property
transferred, or other Federal financial assistance extended to any such
program after the effective date
[[Page 34]]
of this subpart pursuant to an application approved prior to such
effective date. This subpart does not apply to (1) Any Federal financial
assistance by way of insurance or guaranty contracts, (2) money paid,
property transferred, or other assistance extended to any such program
before the effective date of this subpart, except to the extent
otherwise provided by contract, (3) any assistance to any individual who
is the ultimate beneficiary under any such program, or (4) any
employment practice, under any such program, of any employer, employment
agency, or labor organization, except to the extent described in
Sec. 101-6.204-2(d). The fact that a statute which authorizes GSA to
extend Federal financial assistance to a program or activity is not
listed in Sec. 101-6.217 shall not mean, if title VI of the Act is
otherwise applicable, that such program is not covered. Other programs
involving statutes now in force or hereinafter enacted may be added to
this list by notice published in the Federal Register.
(b) The regulations issued by the following Departments pursuant to
title VI of the Act shall be applicable to the programs involving
Federal financial assistance of the kind indicated, and those
Departments shall respectively be responsible for determining and
enforcing compliance therewith:
(1) Department of Health, Education, and Welfare--donation or
transfer of surplus property for purposes of education or public health
(Sec. 101-6.217 (a)(2) and (b)).
(2) Department of Defense--donation of surplus personal property for
purposes of civil defense (Sec. 101-6.217(a)(2)).
(3) Department of Transportation--donation of property for public
airport purposes (Sec. 101-6.217(c)). GSA will, however, be responsible
for obtaining such assurances as may be required in applications and in
instruments effecting the transfer of property.
(4) Department of the Interior--disposal of surplus real property,
including improvements, for use as a public park, public recreational
area, or historic monument (Sec. 101-6.217(d) (1) and (2)). GSA will,
however, be responsible for obtaining such assurances as may be required
in applications and in instruments effecting the transfer of property
for use as a historic monument.
(5) Department of Housing and Urban Development--disposal of surplus
real property for use in the provision of rental or cooperative housing
to be occupied by families or individuals of low or moderate income
(Sec. 101-6.217(q)).
(c) Each Department named in paragraph (b) of this section shall
keep GSA advised of all compliance and enforcement actions, including
sanctions imposed or removed, taken by it with respect to the programs
specified in paragraph (b) of this section to which the regulations of
such Department apply.
[38 FR 17973, July 5, 1973]
Sec. 101-6.204 Discrimination prohibited.
Sec. 101-6.204-1 General.
No person in the United States shall, on the ground of race, color,
or national origin, be excluded from participation in, be denied the
benefits of, or be otherwise subjected to discrimination under any
program to which this subpart applies.
Sec. 101-6.204-2 Specific discriminatory actions prohibited.
(a)(1) In connection with any program to which this subpart applies,
a recipient may not, directly or through contractual or other
arrangements, on the ground of race, color, or national origin:
(i) Deny an individual any service, financial aid, or other benefit
provided under the program;
(ii) Provide any service, financial aid, or other benefit to an
individual which is different, or is provided in a different manner,
from that provided to others under the program;
(iii) Subject an individual to segregation or separate treatment in
any matter related to his receipt of any service, financial aid, or
other benefit under the program;
(iv) Restrict an individual in any way in the enjoyment of any
advantage or privilege enjoyed by others receiving any service,
financial aid, or other benefit under the program;
(v) Treat an individual differently from others in determining
whether he satisfies any admission, enrollment,
[[Page 35]]
quota, eligibility, membership or other requirement or condition which
individuals must meet in order to be provided any service, financial
aid, or other benefit provided under the program;
(vi) Deny an individual an opportunity to participate in the program
through the provision of services or otherwise, or afford him an
opportunity to do so which is different from that afforded others under
the program (including the opportunity to participate in the program as
an employee but only to the extent set forth in paragraph (d) of this
Sec. 101-6.204-2).
(2) A recipient, in determining the types of services, financial
aid, or other benefits, or facilities which will be provided under any
such program, or the class of individuals to whom, or the situations in
which, such services, financial aid, other benefits, or facilities will
be provided under any such program, or the class of individuals to be
afforded an opportunity to participate in any such program, may not,
directly or through contractual or other arrangements, utilize criteria
or methods of administration which have the effect of subjecting
individuals to discrimination because of their race, color, or national
origin, or have the effect of defeating or substantially impairing
accomplishment of the objectives of the program as respect individuals
of a particular race, color, or national origin.
(3) In determining the site or location of facilities, an applicant
or recipient may not make selections with the purpose or effect of
excluding individuals from, denying them the benefits of, or subjecting
them to discrimination under any program to which this subpart applies,
on the ground of race, color, or national origin or with the purpose or
effect of defeating or substantially impairing the accomplishment of the
objectives of the Act or this subpart.
(4) This subpart does not prohibit the consideration of race, color,
or national origin if the purpose and effect are to remove or overcome
the consequences of practices or impediments which have restricted the
availability of, or participation in, the program or activity receiving
Federal financial assistance, on the ground of race, color, or national
origin. Where previous discriminatory practice or usage tends, on the
ground of race, color, or national origin, to exclude individuals from
participation in, to deny them the benefits of, or to subject them to
discrimination under any program or activity to which this subpart
applies, the applicant or recipient has an obligation to take reasonable
action to remove or overcome the consequences of the prior
discriminatory practice or usage, and to accomplish the purposes of the
Act.
(b) As used in this Sec. 101-6.204-2 the services, financial aid, or
other benefits provided under a program receiving Federal financial
assistance shall be deemed to include any service, financial aid, or
other benefit provided in or through a facility provided with the aid of
Federal financial assistance.
(c) The enumeration of specific forms of prohibited discrimination
in this Sec. 101-6.204-2 does not limit the generality of the
porhibition in Sec. 101-6.204-1.
(d)(1) Where a primary objective of the Federal financial assistance
to a program to which this subpart applies is to provide employment, a
recipient may not, directly or through contractual or other
arrangements, subject an individual to discrimination on the ground of
race, color, or national origin in its employment practices under such
program (including, but not limited to, recruitment or recruitment
advertising; employment; layoff or termination; upgrading, demotion, or
transfer; rates of pay or other forms of compensation; selection for
training, including apprenticeship; and use of facilities). The
requirements applicable to construction employment under any such
program shall be those specified in or pursuant to part III of Executive
Order 11246 or the corresponding provisions of any Executive order which
supersedes it.
(2) Where a primary objective of the Federal financial assistance is
not to provide employment, but discrimination on the ground of race,
color, or national origin in the employment practices of the recipient
or other persons subject to this subpart tends, on the ground of race,
color, or national origin, to exclude individuals from participation in,
to deny them the benefits
[[Page 36]]
of, or to subject them to discrimination under any program to which this
subpart applies, the provisions of paragraph (d)(1) of this section
shall apply to the employment practices of the recipient or other
persons subject to this subpart, to the extent necessary to insure
equality of opportunity to, and nondiscriminatory treatment of,
beneficiaries.
[29 FR 16287, Dec. 4, 1964, as amended at 38 FR 17973, July 5, 1973]
Sec. 101-6.204-3 Special programs.
An individual shall not be deemed subjected to discrimination by
reason of his exclusion from the benefits of a program limited by
Federal law to individuals of a particular race, color, or national
origin different from his.
Sec. 101-6.205 Assurances required.
Sec. 101-6.205-1 General.
(a) Every application for Federal financial assistance to carry out
a program to which this subpart 101-6.2 applies, except a program to
which Sec. 101-6.205-2 applies, and every application for Federal
financial assistance to provide a facility shall, as a condition to its
approval and the extension of any Federal financial assistance pursuant
to the application, contain or be accompanied by an assurance that the
program will be conducted or the facility operated in compliance with
all requirements imposed by or pursuant to this subpart 101-6.2. In the
case of an application for Federal financial assistance to provide real
property or structures thereon, the assurance shall obligate the
recipient, or, in the case of a subsequent transfer, the transferee, for
the period during which the real property or structures are used for a
purpose for which the Federal financial assistance is extended or for
another purpose involving the provision of similar services or benefits.
In the case of personal property, the assurance shall obligate the
recipient for the period during which he retains ownership or possession
of the property. In all other cases the assurance shall obligate the
recipient for the period during which Federal financial assistance is
extended pursuant to the application. The responsible GSA official shall
specify the form of the foregoing assurances for each program and the
extent to which like assurances will be required of subgrantees,
contractors and subcontractors, transferees, successors in interest, and
other participants in the program. Any such assurance shall include
provisions which give the United States a right to seek its judicial
enforcement.
(b) In the case of real property, structures or improvements
thereon, or interests therein, which is acquired with Federal financial
assistance, or in the case where Federal financial assistance is
provided in the form of a transfer of real property or interest therein
from the Federal Government, the instrument effecting or recording the
transfer shall contain a covenant running with the land assuring
nondiscrimination for the period during which the real property is used
for a purpose for which the Federal financial assistance is extended or
for another purpose involving the provision of similar services or
benefits. Where no transfer of property is involved, but property is
improved under a program of Federal financial assistance, the recipient
shall agree to include such a covenant in any subsequent transfer of
such property. Where the property is obtained from the Federal
Government, such covenant may also include a condition coupled with a
right to be reserved by GSA to revert title to the property in the event
of a breach of the covenant where, in the discretion of the responsible
GSA official, such a condition and right of reverter is appropriate to
the program under which the real property is obtained and to the nature
of the grant and the grantee. In such event, if a transferee of real
property proposes to mortgage or otherwise encumber the real property as
security for financing construction of new, or improvement of existing,
facilities on such property for the purposes for which the property was
transferred, the Administrator may agree, upon request of the transferee
and if necessary to accomplish such financing, and upon such conditions
as he deems appropriate, to forebear the exercise of such right to
revert title for so long as the lien of such mortgage or other
encumberance remains effective.
[[Page 37]]
(c) The assurance required in the case of a transfer of personal
property shall be inserted in the instrument effecting the transfer of
the property.
(d) In the case of programs not involving a transfer of property,
the assurance required shall be inserted in the agreement executed
between the United States and the recipient covering the extension of
Federal financial assistance.
[29 FR 16287, Dec. 4, 1964, as amended at 38 FR 17973, July 5, 1973]
Sec. 101-6.205-2 Continuing State programs.
Every application by a State or a State agency to carry out a
program involving continuing Federal financial assistance to which this
subpart applies shall as a condition to its approval and the extension
of any Federal financial assistance pursuant to the application (a)
contain or be accompanied by a statement that the program is (or, in the
case of a new program, will be) conducted in compliance with all
requirements imposed by or pursuant to this subpart, and (b) provide or
be accompanied by provision for such methods of administration for the
program as are found by the responsible GSA official to give reasonable
assurance that the applicant and all recipients of Federal financial
assistance under such program will comply with all requirements imposed
by or pursuant to this subpart.
[38 FR 17974, July 5, 1973]
Sec. 101-6.205-3 Elementary and secondary schools.
The requirements of Secs. 101-6.205-1 and 101-6.205-2 with respect
to any elementary or secondary school or school system shall be deemed
to be satisfied if such school or school system (a) Is subject to a
final order of a court of the United States for the desegregation of
such school or school system, and provides an assurance that it will
comply with such order, including any future modification of such order,
or (b) submits a plan for the desegregation of such school or school
system which the responsible official of the Department of Health,
Education, and Welfare determines is adequate to accomplish the purposes
of the Act and this subpart within the earliest practicable time, and
provides reasonable assurance that it will carry out such plan. In any
case of continuing Federal financial assistance such responsible
official may reserve the right to redetermine, after such period as may
be specified by him, the adequacy of the plan to accomplish the purposes
of the Act and this subpart. In any case in which a final order of a
court of the United States for the desegregation of such school or
school system is entered after submission of such a plan, such plan
shall be revised to conform to such final order, including any future
modification of such order.
[38 FR 17974, July 5, 1973]
Sec. 101-6.205-4 Applicability of assurances.
(a) In the case of any application for Federal financial assistance
to an institution of higher education, the assurance required by this
Sec. 101-6.205 shall extend to admission practices and to all other
practices relating to the treatment of students.
(b) The assurance required with respect to an institution of higher
education, hospital, or any other institution, insofar as the assurance
relates to the institution's practices with respect to admission or
other treatment of individuals as students, patients, or clients of the
institution or to the opportunity to participate in the provision of
services or other benefits to such individuals, shall be applicable to
the entire institution unless the applicant establishes, to the
satisfaction of the responsible GSA official, that the institution's
practices in designated parts or programs of the institution will in no
way affect its practices in the program of the institution for which
Federal financial assistance is sought, or the beneficiaries of or
participants in such program. If in any such case the assistance sought
is for the construction of a facility or part of a facility, the
assurance shall in any event extend to the entire facility and to
facilities operated in connection therewith.
(c) Where an installation or facility (for example, a public
airport, or park or recreation area) is comprised of real property for
which application is made
[[Page 38]]
under a program, and, in addition, other real property of the applicant,
the assurance required under this Sec. 101-6.205 shall be applicable to
the entire installation or facility.
Sec. 101-6.206 Illustrative applications.
The following examples will illustrate the application of the
foregoing provisions of this subpart to certain programs for which
Federal financial assistance is extended by GSA (in all cases the
discrimination prohibited is discrimination on the ground of race,
color, or national origin, prohibited by title VI of the Act and this
subpart):
(a) In the programs involving the transfer of surplus property for
airport, park or recreation, historic monument, wildlife conservation,
or street widening purposes (Sec. 101-6.217(c), (d), (e), and (h)), the
public generally is entitled to the use of the facility and to receive
the services provided by the facility and to facilities operated in
connection therewith, without segregation or any other discriminatory
practices.
(b) In the program involving the loan of machine tools to nonprofit
institutions or training schools (Sec. 101-6.217(o)), discrimination by
the recipient in the admission of students or trainees or in the
treatment of its students or trainees in any aspect of the educational
process is prohibited. In the case of an institution of higher
education, the prohibition applies to the entire institution except as
provided in paragraph (b) of Sec. 101-6.205-4. In the case of elementary
or secondary schools, the prohibition applies to all elementary and
secondary schools of the recipient school district, consistent with
Sec. 101-6.205-3. In this and other illustrations the prohibition of
discrimination in the treatment of students or trainees includes the
prohibition of discrimination among the students or trainees in the
availability or use of any academic, dormitory, eating, recreational, or
other facilities of the recipient.
(c) In the programs involving the donation of personal property to
public bodies or the American National Red Cross (Sec. 101-6.217 (f) and
(j)), discrimination in the selection or treatment of individuals to
receive or receiving the benefits or services of the program is
prohibited.
(d) In the program involving the donation of personal property to
eleemosynary institutions (Sec. 101-6.217(1)), the assurance will apply
to applicants for admission, patients, interns, residents, student
nurses, and other trainees, and to the privilege of physicians,
dentists, and other professionally qualified persons to practice in the
institution, and will apply to the entire institution and to facilities
operated in connection therewith, subject to the provisions of Sec. 101-
6.205-4(b).
(e) In the programs involving the allotment of space by GSA to
Federal Credit Unions, without charge for rent or services, and the
provision of free space and utilities for vending stands operated by
blind persons (Sec. 101-6.217 (i) and (k)), discrimination by
segregation or otherwise in providing benefits or services is
prohibited.
(f) In the program involving grants to State and local agencies and
to nonprofit organizations and institutions for the collecting,
describing, preserving, and compiling and publishing of documentary
sources significant to the history of the United States (Sec. 101-
6.217(n)), discrimination by the recipient in the selection of students
or other participants in the program, and, with respect to educational
institutions, in the admission or treatment of students, is prohibited.
(g) In the program involving the transfer of surplus real property
for use in the provision of rental or cooperative housing to families or
individuals of low or moderate income (Sec. 101-6.217(q)),
discrimination in the selection and assignment of tenants is prohibited.
(h) A recipient may not take action that is calculated to bring
about indirectly what this subpart forbids it to accomplish directly.
(i) In some situations even though past discriminatory practices
have been abandoned, the consequences of such practices continue to
impede the full availability of a benefit. If the efforts required of
the applicant or recipient under Sec. 101-6.209-4 to provide information
as to the availability of the program or activity and the rights of
beneficiaries under this subpart have failed to overcome these
consequences,
[[Page 39]]
it will become necessary for such applicant or recipient to take
additional steps to make the benefits fully available to racial and
nationality groups previously subjected to discrimination. This action
might take the form, for example, of special arrangements for obtaining
referrals or making selections which will ensure that groups previously
subjected to discrimination are adequately served.
(j) Even though an applicant or recipient has never used
discriminatory policies, the services and benefits of the program or
activity it administers may not in fact be equally available to some
racial or nationality groups. In such circumstances, an applicant or
recipient may properly give special consideration to race, color, or
national origin to make the benefits of its program more widely
available to such groups not then being adequately served. For example,
where a university is not adequately serving members of a particular
racial or nationality group, it may establish special recruitment
policies to make its program better known and more readily available to
such group, and take other steps to provide that group with more
adequate service.
[29 FR 16287, Dec. 4, 1964, as amended at 38 FR 17974, July 5, 1973]
Secs. 101-6.207--101-6.208 [Reserved]
Sec. 101-6.209 Compliance information.
Sec. 101-6.209-1 Cooperation and assistance.
Each responsible GSA official shall to the fullest extent
practicable seek the cooperation of recipients in obtaining compliance
with this subpart 101-6.2 and shall provide assistance and guidance to
recipients to help them comply voluntarily with this subpart.
Sec. 101-6.209-2 Compliance reports.
Each recipient shall keep such records and submit to the responsible
GSA official or his designee timely, complete and accurate compliance
reports at such times, and in such form and containing such information,
as the responsible GSA official or his designee may determine to be
necessary to enable him to ascertain whether the recipient has complied
or is complying with this subpart 101-6.2. In the case of any program
under which a primary recipient extends Federal financial assistance to
any other recipient, such other recipient shall also submit such
compliance reports to the primary recipient as may be necessary to
enable the primary recipient to carry out its obligations under this
subpart.
Sec. 101-6.209-3 Access to sources of information.
Each recipient shall permit access by the responsible GSA official
or his designee during normal business hours to such of its books,
records, accounts, and other sources of information, and its facilities
as may be pertinent to ascertain compliance with this subpart. Where any
information required of a recipient is in the exclusive possession of
any other agency, institution or person and this agency, institution or
person shall fail or refuse to furnish this information, the recipient
shall so certify in its report and shall set forth what efforts it has
made to obtain the information.
Sec. 101-6.209-4 Information to beneficiaries and participants.
Each recipient shall make available to participants, beneficiaries,
and other interested persons such information regarding the provisions
of this subpart 101-6.2 and its applicability to the program under which
the recipient receives Federal financial assistance, and make such
information available to them in such manner, as the responsible GSA
official finds necessary to apprise such persons of the protections
against discrimination assured them by the Act and this subpart 101-6.2.
Sec. 101-6.210 Conduct of investigations.
Sec. 101-6.210-1 Periodic compliance reviews.
The responsible GSA official or his designee shall from time to time
review the practices of recipients to determine whether they are
complying with this regulation.
Sec. 101-6.210-2 Complaints.
Any person who believes himself or any specific class of individuals
to be
[[Page 40]]
subjected to discrimination prohibited by this subpart 101-6.2 may by
himself or by a representative file with the responsible GSA official or
his designee a written complaint. A complaint must be filed not later
than 90 days from the date of the alleged discrimination, unless the
time for filing is extended by the responsible GSA official or his
designee.
Sec. 101-6.210-3 Investigations.
The responsible GSA official or his designee will make a prompt
investigation whenever a compliance review, report, complaint, or any
other information indicates a possible failure to comply with this
subpart 101-6.2. The investigation should include, where appropriate, a
review of the pertinent practices and policies of the recipient, the
circumstances under which the possible noncompliance with this subpart
occurred, and other factors relevant to a determination as to whether
the recipient has failed to comply with this subpart.
Sec. 101-6.210-4 Resolution of matters.
(a) If an investigation pursuant to Sec. 101-6.210-3 indicates a
failure to comply with this subpart 101-6.2, the responsible GSA
official or his designee will so inform the recipient and the matter
will be resolved by informal means whenever possible. If it has been
determined that the matter cannot be resolved by informal means, action
will be taken as provided for in Sec. 101-6.211.
(b) If an investigation does not warrant action pursuant to
paragraph (a) of this section the responsible GSA official or his
designee will so inform the recipient and the complainant, if any, in
writing.
Sec. 101-6.210-5 Intimidatory or retaliatory acts prohibited.
No recipient or other person shall intimidate, threaten, coerce, or
discriminate against any individual for the purpose of interfering with
any right or privilege secured by section 601 of the Act or this subpart
101-6.2, or because he has made a complaint, testified, assisted or
participated in any manner in an investigation, proceeding, or hearing
under this subpart. The identity of complainants shall be kept
confidential except to the extent necessary to carry out the purposes of
this subpart, including the conduct of any investigation, hearing, or
judicial proceeding arising thereunder.
Sec. 101-6.211 Procedure for effecting compliance.
Sec. 101-6.211-1 General.
If there appears to be a failure or threatened failure to comply
with this subpart 101-6.2, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this subpart may be effected by the suspension or termination of or
refusal to grant or to continue Federal financial assistance or by any
other means authorized by law. Such other means may include, but are not
limited to, (a) a reference to the Department of Justice with a
recommendation that appropriate proceedings be brought to enforce any
rights of the United States under any law of the United States
(including other titles of the Act), or any assurance or other
contractual undertaking, and (b) any applicable proceeding under State
or local law.
Sec. 101-6.211-2 Noncompliance with Sec. 101-6.205.
If an applicant fails or refuses to furnish an assurance required
under Sec. 101-6.205 or otherwise fails or refuses to comply with a
requirement imposed by or pursuant to that section Federal financial
assistance may be refused in accordance with the procedures of Sec. 101-
6.211-3. The GSA shall not be requried to provide assistance in such a
case during the pendency of the administrative proceedings under
Sec. 101-6.211-3 except that GSA shall continue assistance during the
pendency of such proceedings where such assistance is due and payable
pursuant to an application therefor approved prior to the effective date
of this subpart 101-6.2.
Sec. 101-6.211-3 Termination of or refusal to grant or to continue Federal
financial assistance.
No order suspending, terminating or refusing to grant or continue
Federal
[[Page 41]]
financial assistance shall become effective until (a) the responsible
GSA official has advised the applicant or recipient of his failure to
comply and has determined that compliance cannot be secured by voluntary
means, (b) there has been an express finding on the record, after
opportunity for hearing, of a failure by the applicant or recipient to
comply with a requirement imposed by or pursuant to this subpart 101-
6.2, (c) the action has been approved by the Administrator pursuant to
Sec. 101-6.213-5, and (d) the expiration of 30 days after the
Administrator has filed with the committee of the House and the
committee of the Senate having legislative jurisdiction over the program
involved, a full written report of the circumstances and the grounds for
such action. Any action to suspend or terminate or to refuse to grant or
to continue Federal financial assistance shall be limited to the
particular political entity, or part thereof, or other applicant or
recipient as to whom such a finding has been made and shall be limited
in its effect to the particular program, or part thereof, in which such
noncompliance has been so found.
Sec. 101-6.211-4 Other means authorized by law.
No action to effect compliance by an other means authorized by law
shall be taken until (a) the responsible GSA official has determined
that compliance cannot be secured by voluntary means, (b) the recipient
or other person has been notified of his failure to comply and of the
action to be taken to effect compliance, and (c) the expiration of at
least 10 days from the mailing of such notice to the recipient or other
person. During this period of at least 10 days, additional efforts shall
be made to persuade the recipient or other person to comply with this
subpart and to take such corrective action as may be appropriate.
[38 FR 17974, July 5, 1973]
Sec. 101-6.212 Hearings.
Sec. 101-6.212-1 Opportunity for hearing.
Whenever an opportunity for a hearing is required by Sec. 101-6.211-
3, reasonable notice shall be given by registered or certified mail,
return receipt requested, to the affected applicant or recipient. This
notice shall advise the applicant or recipient of the action proposed to
be taken, the specific provision under which the proposed action against
it is to be taken, and the matters of fact or law asserted as the basis
for this action, and either:
(a) Fix a date not less than 20 days after the date of such notice
within which the applicant or recipient may request of the responsible
GSA official that the matter be scheduled for hearing, or (b) advise the
applicant or recipient that the matter in question has been set down for
hearing at a stated place and time. The time and place so fixed shall be
reasonable and shall be subject to change for cause. The complainant, if
any, shall be advised of the time and place of the hearing. An applicant
or recipient may waive a hearing and submit written information and
argument for the record. The failure of an applicant or recipient to
request a hearing under this section or to appear at a hearing for which
a date has been set shall be deemed to be a waiver of the right to a
hearing under section 602 of the Act and Sec. 101-6.211-3, and consent
to the making of a decision on the basis of such information as is
available.
(b) [Reserved]
Sec. 101-6.212-2 Time and place of hearing.
Hearings shall be held, at a time fixed by the responsible GSA
official, at the offices of GSA in Washington, DC, unless such official
determines that the convenience of the applicant or recipient or of GSA
requires that another place be selected. Hearings shall be held before
the responsible GSA official or, at his discretion, before a hearing
examiner designated in accordance with 5 U.S.C. 3105 or 3344 (section 11
of the Administrative Procedure Act).
[38 FR 17974, July 5, 1973]
Sec. 101-6.212-3 Right to counsel.
In all proceedings under this Sec. 101-6.212 the applicant or
recipient and GSA shall have the right to be represented by counsel.
[[Page 42]]
Sec. 101-6.212-4 Procedures, evidence, and record.
(a) The hearing, decision, and any administrative review thereof
shall be conducted in conformity with 5 U.S.C. 554-557 (sections 5-8 of
the Administrative Procedure Act) and in accordance with such rules of
procedure as are proper (and not inconsistent with this section)
relating to the conduct of the hearing, giving of notices subsequent to
those provided for in Sec. 101-6.212-1, taking of testimony, exhibits,
arguments and briefs, requests for findings, and other related matters.
Both GSA and the applicant or recipient shall be entitled to introduce
all relevant evidence on the issues as stated in the notice for hearing
or as deterined by the officer conducting the hearing at the outset of
or during the hearing.
(b) Technical rules of evidence shall not apply to hearings
conducted pursuant to this subpart 101-6.2, but rules or principles
designed to assure production of the most credible evidence available
and to subject testimony to test by cross-examination shall be applied
where reasonably necessary by the officer conducting the hearing. The
hearing officer may exclude irrelevant, immaterial, or unduly
repetitious evidence. All documents and other evidence offered or taken
for the record shall be open to examination by the parties and
opportunity shall be given to refute facts and arguments advanced on
either side of the issues. A transcript shall be made of the oral
evidence except to the extent the substance thereof is stipulated for
the record. All decisions shall be based upon the hearing record and
written findings shall be made.
[29 FR 16287, Dec. 4, 1964, as amended at 38 FR 17974, July 5, 1973]
Sec. 101-6.212-5 Consolidated or joint hearings.
In cases in which the same or related facts are asserted to
constitute noncompliance with this subpart 101-6.2 with respect to two
or more programs to which this subpart applies, or noncompliance with
this subpart and the regulations of one or more other Federal
departments or agencies issued under title VI of the Act, the
Administrator may, by agreement with such other departments, or
agencies, where applicable, provide for the conduct of consolidated or
joint hearings, and for the application to such hearings of rules of
procedure not inconsistent with this regulation. Final decisions in such
cases, insofar as this subpart is concerned, shall be made in accordance
with Sec. 101-6.213.
Sec. 101-6.213 Decisions and notices.
Sec. 101-6.213-1 Decision by person other than the responsible GSA
official.
If the hearing is held by a hearing examiner such hearing examiner
shall either make an initial decision, if so authorized, or certify the
entire record including his recommended findings and proposed decision
to the responsible GSA official for a final decision, and a copy of such
initial decision or certification shall be mailed to the applicant or
recipient. Where the initial decision is made by the hearing examiner
the applicant or recipient may within 30 days of the mailing of such
notice of initial decision file with the responsible GSA official his
exceptions to the initial decision, with his reasons therefor. In the
absence of exceptions, the responsible GSA official may on his own
motion within 45 days after the initial decision serve on the applicant
or recipient a notice that he will review the decision. Upon the filing
of such exceptions or of such notice of review the responsible GSA
official shall review the initial decision and issue his own decision
thereon including the reasons therefor. In the absence of either
exceptions or a notice of review the initial decision shall constitute
the final decision of the responsible GSA official.
Sec. 101-6.213-2 Decisions on record or review by the responsible GSA
official.
Whenever a record is certified to the responsible GSA official for
decision or he reviews the decision of a hearing examiner pursuant to
Sec. 101-6.213-1, or whenever the responsible GSA official conducts the
hearing, the applicant or recipient shall be given reasonable
opportunity to file with him briefs or other written statements of its
contentions, and a copy of the final decision of the responsible GSA
official shall be
[[Page 43]]
given in writing to the applicant or recipient, and to the complainant,
if any.
Sec. 101-6.213-3 Decisions on record where a hearing is waived.
Whenever a hearing is waived pursuant to Sec. 101-6.212 a decision
shall be made by the responsible GSA official on the record and a copy
of such decision shall be given in writing to the applicant or
recipient, and to the complainant, if any.
Sec. 101-6.213-4 Rulings required.
Each decision of a hearing officer or responsible GSA official shall
set forth his ruling on each finding, conclusion, or exception
presented, and shall identify the requirement or requirements imposed by
or pursuant to this subpart 101-6.2 with which it is found that the
applicant or recipient has failed to comply.
Sec. 101-6.213-5 Approval by Administrator.
Any final decision of a responsible GSA official (other than the
Administrator) which provides for the suspension or termination of, or
the refusal to grant or continue Federal financial assistance, or the
imposition of any other sanction available under this subpart 101-6.2 or
the Act, shall promptly be transmitted to the Administrator, who may
approve such decision, may vacate it, or remit or mitigate any sanction
imposed.
Sec. 101-6.213-6 Content of orders.
The final decision may provide for suspension or termination of, or
refusal to grant or continue Federal financial assistance, in whole or
in part, under the program involved, and may contain such terms,
conditions, and other provisions as are consistent with and will
effectuate the purposes of the Act and this subpart 101-6.2, including
provisions designed to assure that no Federal financial assistance will
thereafter be extended under such program to the applicant or recipient
determined by such decision to be in default in its perfomrance of an
assurance given by it pursuant to this subpart, or to have otherwise
failed to comply with this subpart, unless and until it corrects its
noncompliance and satisfies the responsible GSA official that it will
fully comply with this subpart.
Sec. 101-6.213-7 Post termination proceedings.
(a) An applicant or recipient adversely affected by an order issued
under Sec. 101-6.213-6 shall be restored to full eligibility to receive
Federal financial assistance if it satisfies the terms and conditions of
that order for such eligibility or if it brings itself into compliance
with this subpart and provides reasonable assurance that it will fully
comply with this subpart. An elementary or secondary school or school
system which is unable to file an assurance of compliance with Sec. 101-
6.24 shall be restored to full eligibility to receive financial
assistance if it files a court order or a plan for desegregation meeting
the requirements of Sec. 101-6.205-3 and provides reasonable assurance
that it will comply with this court order or plan.
(b) Any applicant or recipient adversely affected by an order
entered pursuant to Sec. 101-6.213-6 may at any time request the
responsible GSA official to restore fully its eligibility to receive
Federal financial assistance. Any such request shall be supported by
information showing that the applicant or recipient has met the
requirements of paragraph (a) of this section. If the responsible GSA
official determines that those requirements have been satisfied, he
shall restore such eligibility.
(c) If the responsible GSA official denies any such request, the
applicant or recipient may submit a request, in writing, for a hearing,
specifying why it believes such official to have been in error. It shall
thereupon be given an expeditious hearing, with a decision on the
record, in accordance with rules of procedure issued by the responsible
GSA official. The applicant or recipient will be restored to such
eligibilty if it proves at such a hearing that it satisfied the
requirements of paragraph (a) of this section. While proceedings under
this section are pending, the sanctions imposed by the order issued
under Sec. 101-6.213-6 shall remain in effect.
[38 FR 17975, July 5, 1973]
[[Page 44]]
Sec. 101-6.214 Judicial review.
Action taken pursuant to section 602 of the Act is subject to
judicial review as provided in section 603 of the Act.
Sec. 101-6.215 Effect on other regulations; forms and instructions.
Sec. 101-6.215-1 Effect on other regulations.
All regulations, orders, or like directions heretofore issued by any
officer of GSA which imposed requirements designed to prohibit any
discrimination against individuals on the ground of race, color, or
national origin under any program to which this subpart 101-6.2 applies,
and which authorize the suspension or termination of or refusal to grant
or to continue Federal financial assistance to any applicant for or
recipient of such assistance under such program for failure to comply
with such requirements, are hereby superseded to the extent that such
discrimination is prohibited by this subpart, except that nothing in
this subpart shall be deemed to relieve any person of any obligation
assumed or imposed under any such superseded regulation, order,
instruction, or like direction prior to the effective date of this
subpart. Nothing in this subpart, however, shall be deemed to supersede
any of the following (including future amendments thereof):
(a) Executive Orders 10925, 11114, and 11246, and regulations issued
thereunder.
(b) Any other orders, regulations, or instructions, insofar as such
orders, regulations, or instructions prohibit discrimination on the
ground of race, color, or national origin in any program or situation to
which this subpart is inapplicable, or prohibit discrimination on any
other ground.
[29 FR 16287, Dec. 4, 1964, as amended at 38 FR 17975, July 5, 1973]
Sec. 101-6.215-2 Forms and instructions.
Each responsible GSA official shall issue and promptly make
available to interested persons forms and detailed instructions and
procedures for effectuating this subpart 101-6.2 as applied to programs
to which this subpart applies and for which he is responsible.
Sec. 101-6.215-3 Supervision and coordination.
The Administrator may from time to time assign to officials of other
departments or agencies of the Government, with the consent of such
departments or agencies, responsibilities in connection with the
effectuation of the purposes of title VI of the Act and this subpart
(other than responsibility for final decision as provided in Sec. 101-
6.213), including the achievement of effective coordination and maximum
uniformity within GSA and within the executive branch of the Government
in the application of title VI and this subpart to similar programs and
in similar situations. Any action taken, determination made, or
requirement imposed by an official of another Department or Agency
acting pursuant to an assignment of responsibility under this section
shall have the same effect as though such action had been taken by the
responsible GSA official.
[38 FR 17975, July 5, 1973]
Sec. 101-6.216 Definitions.
As used in this subpart:
(a) The term General Services Administration or GSA includes each of
its operating services and other organizational units.
(b) The term Administrator means the Administrator of General
Services.
(c) The term responsible GSA official with respect to any program
receiving Federal financial assistance means the Administrator or other
official of GSA who by law or by delegation has the principal
responsibility within GSA for the administration of the law extending
such assistance.
(d) The term United States means the States of the United States,
the District of Columbia, Puerto Rico, the Virgin Islands, American
Samoa, Guam, Wake Island, the Canal Zone, and the territories and
possessions of the United States, and the terms State means any one of
the foregoing.
(e) The term Federal financial assistance includes (1) grants and
loans of Federal funds, (2) the grant or donation of Federal property
and interests in property, (3) the detail of Federal personnel, (4) the
sale and lease of, and the
[[Page 45]]
permission to use (on other than a casual or transient basis), Federal
property or any interest in such property without consideration or at a
nominal consideration, or at a consideration which is reduced for the
purposes of assisting the recipient, or in recognition of the public
interest to be served by such sale or lease to the recipient, and (5)
any Federal agreement, arrangement, or other contract which has as one
of its purposes the provision of assistance.
(f) The term program includes any program, project, or activity for
the provision of services, financial aid, or other benefits to
individuals (including education or training, health, welfare,
rehabilitation, housing, or other services, whether provided through
employees of the recipient of Federal financial assistance or provided
by others through contracts or other arrangements with the recipient,
and including work opportunities and cash or loan or other assistance to
individuals), or for the provision of facilities for furnishing
services, financial aid or other benefits to individuals. The services,
financial aid, or other benefits provided under a program receiving.
Federal financial assistance shall be deemed to include any services,
financial aid, or other benefits provided with the aid of Federal
financial assistance or with the aid of any non-Federal funds, property,
or other resources required to be expended or made available for the
program to meet matching requirements or other conditions which must be
met in order to receive the Federal financial assistance, and to include
any services, financial aid, or other benefits provided in or through a
facility provided with the aid of Federal financial assistance or such
non-Federal resources.
(g) The term facility includes all or any portion of structures,
equipment, or other real or personal property or interests therein, and
the provision of facilities includes the construction, expansion,
renovation, remodeling, alteration or acquisition of facilities.
(h) The term recipient means any State, political subdivision of any
State, or instrumentality of any State or political subdivision, any
public or private agency, institution, or organization, or any other
entity, or any individual, in any State, to whom Federal financial
assistance is extended, directly or through another recipient, for any
program, including any successor, assign, or transferee thereof, but
such term does not include any ultimate beneficiary under any such
program.
(i) The term primary recipient means any recipient which is
authorized or required to extend Federal financial assistance to another
recipient for the purpose of carrying out a program.
(j) The term applicant means one who submits an application,
request, or plan required to be approved by a responsible GSA official,
or by a primary recipient, as a condition to eligibility for Federal
financial assistance, and the term application means such an
application, request, or plan.
Sec. 101-6.217 Laws authorizing Federal financial assistance for programs to which this subpart applies.
(a)(1) Donation of surplus personal property to educational
activities which are of special interest to the armed services (section
203(j)(2) of the Federal Property and Administrative Services Act of
1949, 40 U.S.C. 484(j)(2)).
(2) Donation of surplus personal property for use in any State for
purposes of education, public health, or civil defense, or for research
for any such purposes (section 203(j) (3) and (4) of the Federal
Property and Administrative Services Act of 1949, 40 U.S.C. 484(j) (3)
and (4)), and the making available to State agencies for surplus
property, or the transfer of title to such agencies, of surplus personal
property approved for donation for purposes of education, public health,
or civil defense, or for research for any such purposes (section 203(n)
of the Federal Property and Administrative Services Act of 1949, 40
U.S.C. 484(n)).
(b) Disposal of surplus real and related personal property for
purposes of education or public health, including research (section
203(k)(1) of the Federal Property and Administrative Services Act of
1949, 40 U.S.C. 484(k)(1)).
(c) Donation of property for public airport purposes (section 13(g)
of the Surplus Property Act of 1944, 50 U.S.C. App. 1622(g); section 23
of the Airport
[[Page 46]]
and Airway Development Act of 1970, Pub. L. 91-258).
(d)(1) Disposal of surplus real property, including improvements,
for use as a historic monument (section 13(h) of the Surplus Property
Act of 1944, 50 U.S.C. App. 1622(h)).
(2) Disposal of surplus real and related personal property for
public park or public recreational purposes (section 203(k)(2) of the
Federal Property and Administrative Services Act of 1949, 40 U.S.C.
484(k)(2).
(e) Disposal of real property to States for wildlife conservation
purposes (Act of May 19, 1948, 16 U.S.C. 667b-d).
(f) Donation of personal property to public bodies (section 202(h)
of the Federal Property and Administrative Services Act of 1949, 40
U.S.C. 483(h)).
(g) Grants of easements by the General Services Administration
pursuant to the Act of October 23, 1962, (40 U.S.C. 319-319(c), and
grants by the General Services Administration of revocable licenses or
permits to use or occupy Federal real property, if the consideration to
the Government for such easement, licenses, or permits is less than
estimated fair market value.
(h) Conveyance of real property or interests therein by the General
Services Administration to States or political subdivisions for street
widening purposes pursuant to the Act of July 7, 1960 (40 U.S.C. 345c),
if the consideration to the Government is less than estimated fair
market value.
(i) Allotment of space by the General Services Administration in
Federal buildings to Federal Credit Unions, without charge for rent or
services (section 25 of the Federal Credit Union Act, 12 U.S.C. 1770).
(j) Donation of surplus property to the American National Red Cross
(section 203(l) of the Federal Property and Administrative Services Act
of 1949, 40 U.S.C. 484(l)).
(k) Provision by the General Services Administration of free space
and utilities for vending stands operated by blind persons (section 1 of
the Randolph-Sheppard Act, 20 U.S.C. 107).
(l) Donation of forfeited distilled spirits, wine, and malt
beverages to eleemosynary institutions (26 U.S.C. 5688).
(m) Donation of surplus Federal records (Federal Records Disposal
Act of 1943, 44 U.S.C. 366-380).
(n) Grants to State and local agencies and to nonprofit
organizations and institutions for the collecting, describing,
preserving and compiling, and publishing of documentary sources
significant to the history of the United States (section 503 of the
Federal Property and Administrative Services Act of 1949, as amended by
Pub. L. 88-383).
(o) Loan of machine tools and industrial manufacturing equipment in
the national industrial reserve to nonprofit educational institutions or
training schools (section 7 of the National Industrial Reserve Act of
1948, 50 U.S.C. 456).
(p) District of Columbia grant-in-aid hospital program (60 Stat.
896, as amended).
(q) Disposal of surplus real property for use in the provision of
rental or cooperative housing to be occupied by families or individuals
of low or moderate income (section 414 of the Housing and Urban
Development Act of 1969, Pub. L. 91-152).
(r) Payments in lieu of taxes on certain real property transferred
from the Reconstruction Finance Corporation (Title VII of the Federal
Property and Administrative Services Act of 1949, 40 U.S.C. 521-524).
(s) Conveyance of certain lands and property to the State of Hawaii
without reimbursement (Pub. L. 88-233, 77 Stat. 472).
[29 FR 16287, Dec. 4, 1964, as amended at 38 FR 17975, July 5, 1973]
Subpart 101-6.3--Ridesharing
Authority: 40 U.S.C. 486(c); Executive Order 12191 dated February 1,
1980; Sec. 205(c), 63 Stat. 390.
Source: 67 FR 76882, Dec. 13, 2002, unless otherwise noted.
Sec. 101-6.300 Cross-reference to the Federal Management Regulation (FMR)
41 CFR chapter 102 parts 1 through 220.
For information on Federal facility ridesharing, see FMR part 102-74
(41 CFR part 102-74).
[[Page 47]]
Subpart 101-6.4--Official Use of Government Passenger Carriers Between
Residence and Place of Employment
Source: 65 FR 54966, Sept. 12, 2000, unless otherwise noted.
Sec. 101-6.400 Cross-reference to the Federal Management Regulation (FMR)
(41 CFR chapter 102, parts 102-1 through 102-220).
For policy concerning official use of Government passenger carriers
between residence and place of employment previously contained in this
part, see FMR part 5 (41 CFR part 102-5), Home-to-Work Transportation.
Subpart 101-6.5--Code of Ethics for Government Service
Sec. 101-6.500 Scope of subpart.
(a) In accordance with Public Law 96-303, the requirements of this
section shall apply to all executive agencies (as defined by section 105
of title 5, United States Code), the United States Postal Service, and
the Postal Rate Commission. The heads of these agencies shall be
responsible for ensuring that the requirements of this section are
observed and complied with within their respective agencies.
(b) Each agency, as defined in ``(a)'' above, shall display in
appropriate areas of buildings in which at least 20 individuals are
regularly employed by an agency as civilian employees, copies of the
Code of Ethics for Government Service (Code).
(c) For Government-owned or wholly leased buildings subject to the
requirements of this section, at least one copy of the Code shall be
conspicuously displayed, normally in the lobby of the main entrance to
the building. For other buildings subject to the requirements of this
section which are owned, leased, or otherwise provided to the Federal
Government for the purpose of performing official business, at least one
copy of the Code shall be conspicuously displayed within the space
occupied by the Government. In all cases, additional copies of the Code
may be displayed in other appropriate building locations, such as
auditoriums, bulletin boards, cafeterias, locker rooms, reception areas,
and other high-traffic areas.
(d) Agencies of the Federal Government shall not pay any costs for
the printing, framing, or other preparation of the Code. Agencies may
properly pay incidental expenses, such as the cost of hardware, other
materials, and labor incurred to display the Code. Display shall be
consistent with the decor and architecture of the building space.
Installation shall cause no permanent damage to stonework or other
surfaces which are difficult to maintain or repair.
(e) Agencies may obtain copies of the Code by submitting a
requisition for National Stock Number (NSN) 7690-01-099-8167 in Fedstrip
format to the GSA regional office responsible for providing support to
the requisitioning agency. Agencies will be charged a nominal fee to
cover shipping and handling.
[58 FR 21945, Apr. 28, 1994]
Subpart 101-6.6--Fire Protection (Firesafety) Engineering
Authority: 40 U.S.C. 486(c).
Source: 67 FR 76882, Dec. 13, 2002, unless otherwise noted.
Sec. 101-6.600 Cross-reference to the Federal Management Regulation (FMR)
41 CFR chapter 102 parts 1 through 220.
For information on fire protection (firesafety) engineering, see FMR
part 102-74 (41 CFR part 102-74) and FMR part 102-80 (41 CFR part 102-
80).
Subparts 101-6.7--101-6.9 [Reserved]
Subpart 101-6.10--Federal Advisory Committee Management
Authority: Sec. 205(c), 63 Stat. 390 (40 U.S.C. 486(c)); sec. 7, 5
U.S.C., App.; and E.O. 12024, 3 CFR, 1977 Comp., p. 158.
Source: 66 FR 37733, July 19, 2001, unless otherwise noted.
[[Page 48]]
Sec. 101-6.1001 Cross-reference to the Federal Management Regulation (FMR)
(41 CFR chapter 102, parts 102-1 through 102-220).
For Federal advisory committee management information previously
contained in this subpart, see FMR part 102-3 (41 CFR part 102-3).
Subparts 101-6.11--101-6.20 [Reserved]
Subpart 101-6.21--Intergovernmental Review of General Services
Administration Programs and Activities
Authority: E.O. 12372, July 14, 1982 (47 FR 30959), as amended Apr.
8, 1983 (48 FR 15887); sec. 401 of the Intergovernmental Cooperation Act
of 1968 as amended (31 U.S.C. 6506).
Source: 48 FR 29329, June 24, 1983, unless otherwise noted.
Editorial Note: For additional information, see related documents
published at 47 FR 57369, Dec. 23, 1982, 48 FR 17101, Apr. 21, 1983, and
48 FR 29096, June 24, 1983.
Sec. 101-6.2100 Scope of subpart.
This subpart implements Executive Order 12372, ``Intergovernmental
Review of Federal Programs'', for Federal financial assistance and
direct Federal development programs of the General Services
Administration (GSA).
Sec. 101-6.2101 What is the purpose of these regulations?
(a) The regulations in this part implement Executive Order 12372,
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982,
and amended on April 8, 1983. These regulations also implement
applicable provisions of section 401 of the Intergovernmental
Cooperation Act of 1968.
(b) These regulations are intended to foster an intergovenmental
partnership and a strengthened Federalism by relying on State processes
and on State, areawide, regional and local coordination for review of
proposed Federal financial assistance and direct Federal development.
(c) These regulations are intended to aid the internal management of
GSA, and are not intended to create any right or benefit enforceable at
law by a party against GSA or its officers.
Sec. 101-6.2102 What definitions apply to these regulations?
GSA means the U.S. General Services Administration.
Order means Executive Order 12372, issued July 14, 1982, and amended
April 8, 1983, and titled ``Intergovernmental Review of Federal
Programs.''
Administrator means the Administrator of General Services or an
official or employee of GSA acting for the Administrator under a
delegation of authority.
State means any of the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust
Territory of the Pacific Islands.
Sec. 101-6.2103 What programs and activities of GSA are subject to these
regulations?
The Administrator publishes in the Federal Register a list of GSA's
programs and activities that are subject to these regulations.
Sec. 101-6.2104 What are the Administrator's general responsibilities
under the Order?
(a) The Administrator provides opportunities for consultation by
elected officials of those State and local governments that would
provide the non-Federal funds for, or that would be directly affected
by, proposed Federal financial assistance from, or direct Federal
development by, GSA.
(b) If a State adopts a process under the Order to review and
coordinate proposed Federal financial assistance and direct Federal
development, the Administrator, to the extent permitted by law:
(1) Uses the State process to determine official views of State and
local elected officials;
(2) Communicates with State and local elected officials as early in
a program planning cycle as is reasonably feasible to explain specific
plans and actions;
[[Page 49]]
(3) Makes efforts to accommodate State and local elected officials'
concerns with proposed Federal financial assistance and direct Federal
development that are communicated through the State process;
(4) Allows the States to simplify and consolidate existing federally
required State plan submissions;
(5) Where State planning and budgeting systems are sufficient and
where permitted by law, encourages the substitution of State plans for
federally required State plans;
(6) Seeks the coordination of views of affected State and local
elected officials in one State with those of another State when proposed
Federal financial assistance or direct Federal development has an impact
on interstate metropolitan urban centers or other interstate areas; and
(7) Supports State and local governments by discouraging the
reauthorization or creation of any planning organization which is
federally-funded, which has limited purpose, and which is not adequately
representative of, or accountable to, State or local elected officials.
Sec. 101-6.2105 What is the Administrator's obligation with respect to
Federal interagency coordination?
The Administrator, to the extent practicable, consults with and
seeks advice from all other substantially affected Federal departments
and agencies in an effort to assure full coordination between such
agencies and GSA regarding programs and activities covered under these
regulations.
Sec. 101-6.2106 What procedures apply to the selection of programs and
activities under these regulations?
(a) A State may select any program or activity published in the
Federal Register in accordance with Sec. 101-6.2103 of this part for
intergovernmental review under these regulations. Each State, before
selecting programs and activities, shall consult with local elected
officials.
(b) Each State that adopts a process shall notify the Administrator
of the GSA programs and activities selected for that process.
(c) A State may notify the Administrator of changes in its
selections at any time. For each change, the State shall submit to the
Administrator an assurance that the State has consulted with elected
local elected officials regarding the change. GSA may establish
deadlines by which States are required to inform the Administrator of
changes in their program selections.
(d) The Administrator uses a State's process as soon as feasible,
depending on individual programs and activities, after the Administrator
is notified of its selections.
Sec. 101-6.2107 How does the Administrator communicate with State and
local officials concerning GSA's programs and activities?
(a) [Reserved]
(b) The Administrator provides notice to directly affected State,
areawide, regional, and local entities in a State of proposed Federal
financial assistance or direct Federal development if:
(1) The State has not adopted a process under the Order; or
(2) The assistance or development involves a program or activity not
selected for the State process.
Note: This notice may be made by publication in the Federal Register
or other appropriate means, which GSA in its discretion deems
appropriate.
Sec. 101-6.2108 How does the Administrator provide States an opportunity
to comment on proposed Federal financial assistance and direct Federal
development?
(a) Except in unusual circumstances, the Administrator gives State
processes or directly affected State, areawide, regional and local
officials and entities at least:
(1) [Reserved]
(2) 60 days from the date established by the Administrator to
comment on proposed direct Federal development or Federal financial
assistance.
(b) This section also applies to comments in cases in which the
review, coordination, and communication with GSA have been delegated.
[[Page 50]]
Sec. 101-6.2109 How does the Administrator receive and respond to comments?
(a) The Administrator follows the procedures in Sec. 101-6.2110 if:
(1) A State office or official is designated to act as a single
point of contact between a State process and all Federal agencies, and
(2) That office or official transmits a State process recommendation
for a program selected under Sec. 101-6.2106.
(b)(1) The single point of contact is not obligated to transmit
comments from State, areawide, regional or local officials and entities
where there is no State process recommendation.
(2) If a State process recommendation is transmitted by a single
point of contact, all comments from State, areawide, regional, and local
officials and entities that differ from it must also be transmitted.
(c) If a State has not established a process, or is unable to submit
a State process recommendation, State, areawide, regional and local
officials and entities may submit comments to GSA.
(d) If a program or activity is not selected for a State process,
State, areawide, regional and local officials and entities may submit
comments to GSA. In addition, if a State process recommendation for a
nonselected program or activity is transmitted to GSA by the single
point of contact, the Administrator follows the procedures of Sec. 101-
6.2110 of this part.
(e) The Administrator considers comments which do not constitute a
State process recommendation submitted under these regulations, and for
which the Administrator is not required to apply the procedures of
Sec. 101-6.2110 of this part, when such comments are provided by a
single point of contact, or directly to GSA by a commenting party.
Sec. 101-6.2110 How does the Administrator make efforts to accommodate
intergovernmental concerns?
(a) If a State process provides a State process recommendation to
GSA through its single point of contact, the Administrator either:
(1) Accepts the recommendation;
(2) Reaches a mutually agreeable solution with the State process; or
(3) Provides the single point of contact with such written
explanation of its decision, as the Administrator in his or her
discretion deems appropriate. The Administrator may also supplement the
written explanation by providing the explanation to the single point of
contact by telephone, other telecommunication, or other means.
(b) In any explanation under paragraph (a)(3) of this section, the
Administrator informs the single point of contact that:
(1) GSA will not implement its decision for at least ten days after
the single point of contact receives the explanation; or
(2) The Administrator has reviewed the decision and determined that,
because of unusual circumstances, the waiting period of at least ten
days is not feasible.
(c) For purposes of computing the waiting period under paragraph
(b)(1) of this section, a single point of contact is presumed to have
received written notification 5 days after the date of mailing of such
notification.
Sec. 101-6.2111 What are the Administrator's obligations in interstate
situations?
(a) The Administrator is responsible for:
(1) Identifying proposed Federal financial assistance and direct
Federal development that have an impact on interstate areas;
(2) Notifying appropriate officials and entities in States which
have adopted a process and which have selected a GSA program or
activity;
(3) Making efforts to identify and notify the affected State,
areawide, regional, and local officials and entities in those States
that have not adopted a process under the Order or have not selected a
GSA program or activity; and
(4) Responding pursuant to Sec. 101-6.2110 of this part if the
Administrator receives a recommendation from a designated areawide
agency transmitted by a single point of contact, in cases in which the
review, coordination, and communication with GSA have been delegated.
[[Page 51]]
(b) The Administrator uses the procedures in Sec. 101-6.2110 if a
State process provides a State process recommendation to GSA through a
single point of contact.
Sec. 101-6.2112 How may a State simplify, consolidate, or substitute
federally required State plans?
(a) As used in this section:
(1) Simplify means that a State may develop its own format, choose
its own submission date, and select the planning period for a State
plan.
(2) Consolidate means that a State may meet statutory and regulatory
requirements by combining two or more plans into one document and that
the State can select the format, submission date, and planning period
for the consolidated plan.
(3) Substitute means that a State may use a plan or other document
that it has developed for its own purposes to meet Federal requirements.
(b) If not inconsistent with law, a State may decide to try to
simplify, consolidate, or substitute federally required State plans
without prior approval by the Administrator.
(c) The Administrator reviews each State plan that a State has
simplified, consolidated, or substituted and accepts the plan only if
its contents meet Federal requirements.
Sec. 101-6.2113 May the Administrator waive any provision of these regulations?
In an emergency, the Administrator may waive any provision of these
regulations.
Subparts 101-6.22--101-6.48 [Reserved]
Subpart 101-6.49--Illustrations
Authority: Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c).
Sec. 101-6.4900 Scope of subpart.
This subpart contains illustrations prescribed for use in connection
with the subject matter covered in part 101-6.
[37 FR 20542, Sept. 30, 1972]
Sec. 101-6.4901 [Reserved]
Sec. 101-6.4902 Format of certification required for budget submissions
of estimates of obligations in excess of $100,000 for acquisitions of real and related
personal property.
Note: The illustration in Sec. 101-6.4902 is filed as part of the
original document.
[37 FR 20542, Sept. 30, 1972]
PART 101-8--NONDISCRIMINATION IN FEDERAL FINANCIAL ASSISTANCE PROGRAMS--
Table of Contents
Subparts 101-8.1--101-8.2 [Reserved]
Subpart 101-8.3--Discrimination Prohibited on the Basis of Handicap
Sec.
101-8.300 Purpose and applicability.
101-8.301 Definitions.
101-8.302 General prohibitions.
101-8.303 Specific prohibitions.
101-8.304 Effect of State or local law or other requirements and effect
of employment opportunities.
101-8.305 Employment practices prohibited.
101-8.306 Reasonable accommodation.
101-8.307 Employment criteria.
101-8.308 Preemployment inquiries.
101-8.309 Program accessibility.
101-8.310 New construction.
101-8.311 Historic preservation programs.
101-8.312 Procedures.
101-8.313 Self-evaluation.
Subparts 101-8.4--101-8.6 [Reserved]
Subpart 101-8.7--Discrimination Prohibited on the Basis of Age
101-8.700 Purpose of the Age Discrimination Act of 1975.
101-8.701 Scope of General Services Administration's age discrimination
regulation.
101-8.702 Applicability.
101-8.703 Definitions of terms.
101-8.704 Rules against age discrimination.
101-8.705 Definition of normal operation and statutory objective.
101-8.706 Exceptions to the rules against age discrimination.
101-8.706-1 Normal operation or statutory objective of any program or
activity.
101-8.706-2 Reasonable factors other than age.
101-8.707 Burden of proof.
101-8.708 Affirmative action by recipient.
101-8.709 Special benefits for children and the elderly.
101-8.710 Age distinctions contained in General Services Administration
regulation.
101-8.711 General responsibilities.
[[Page 52]]
101-8.712 Notice to subrecipients and beneficiaries.
101-8.713 Assurance of compliance and recipient assessment of age
distinctions.
101-8.714 Information requirements.
101-8.715 Compliance reviews.
101-8.716 Complaints.
101-8.717 Mediation.
101-8.718 Investigation.
101-8.719 Prohibition against intimidation or retaliation.
101-8.720 Compliance procedure.
101-8.721 Hearings.
101-8.722 Decisions and notices.
101-8.723 Remedial action by recipient.
101-8.724 Exhaustion of administrative remedies.
101-8.725 Alternate funds disbursal.
Authority: Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c).
Source: 47 FR 25337, June 11, 1982, unless otherwise noted.
Subparts 101-8.1--101-8.2 [Reserved]
Subpart 101-8.3--Discrimination Prohibited on the Basis of Handicap
Sec. 101-8.300 Purpose and applicability.
(a) The purpose of this subpart is to implement section 504 of the
Rehabilitation Act of 1973, as amended, which prohibits discrimination
on the basis of handicap in any program or activity receiving Federal
financial assistance.
(b) This subpart applies to each recipient or subrecipient of
Federal assistance from GSA and to each program or activity that
receives or benefits from assistance.
Sec. 101-8.301 Definitions.
(a) Section 504 means section 504 of the Rehabilitation Act of 1973,
Public Law 93-112, as amended by the Rehabilitation Act Amendments of
1974, Public Law 93-516, 29 U.S.C. 794.
(b) Handicapped person means any person who has a physical or mental
impairment which substantially limits one or more major life activities,
has a record of such impairments, or is regarded as having such an
impairment.
(c) As used in paragraph (b) of this section, the phrase:
(1) Physical or mental impairment means:
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive, digestive,
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term ``physical or mental
impairment'' includes, but is not limited to, such diseases and
conditions as orthopedic, visual, speech and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional illness
and drug addiction and alcoholism, when current use of drugs and/or
alcohol is not detrimental to or interferes with the employee's
performance, nor constitutes a direct threat to property or safety of
others.
(2) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means:
(i) Has a physical or mental impairment that does not substantially
limit major life activities but that is treated by a recipient as
constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraphs (c)(1) (i)
and (ii) of this section, but is treated by a recipient as having such
an impairment.
(d) Qualified handicapped person means:
(1) With respect to employment, a handicapped person who, with
reasonable accommodation, can perform the
[[Page 53]]
essential functions of the job in question;
(2) With respect to public preschool, elementary, secondary, or
adult education services, a handicapped person:
(i) Of an age during which nonhandicapped persons are provided such
services;
(ii) Of any age during which it is mandatory under state law to
provide such services to handicapped persons; or
(iii) To whom a state is required to provide a free appropriate
public education under section 612 of the Education for All Handicapped
Children Act of 1975, Public Law 94-142.
(3) With respect to postsecondary and vocational education services,
a handicapped person who meets the academic and technical standards
requisite to admission or participation in the recipient's education
program or activity; and
(4) With respect to other services, a handicapped person who meets
the essential eligibility requirements for the receipt of such services.
(e) Handicap means condition or characteristic that renders a person
a handicapped person as defined in paragraph (b) of this section.
The definitions set forth in Sec. 101-6.216, to the extent not
inconsistent with this subpart, are made applicable to and incorporated
into this subpart.
Sec. 101-8.302 General prohibitions.
No qualified handicapped persons shall, on the basis of handicap, be
excluded from participation in, be denied the benefits of, or otherwise
be subjected to discrimination under any program or activity that
receives or benefits from Federal assistance from GSA.
Sec. 101-8.303 Specific prohibitions.
(a) A recipient, in providing any aid, benefit, or service, may not
directly or through contractual, licensing, or other arrangements, on
the basis of handicap:
(1) Deny a qualified person the opportunity to participate in or
benefit from the aid, benefit, or service;
(2) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(3) Provide a qualified handicapped person with an aid, benefit, or
service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided others;
(4) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others unless the action is necessary to provide qualified
handicapped persons with aid, benefits, or services that are as
effective as those provided to others;
(5) Aid or perpetuate discrimination against a qualified handicapped
person by providing significant assistance to an agency, organization,
or person that discriminates on the basis of handicap in providing any
aid, benefit, or services to beneficiaries of the recipient's program;
(6) Deny a qualified handicapped person the opportunity to
participate as a member of planning committees, advisory boards, or
other groups; or
(7) Otherwise limit a qualified handicapped person in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by others
receiving the aid, benefit, or service.
(b) For purposes of this subpart, aids, benefits, and services, to
be equally effective, are not required to produce the identical result
or level of achievement for handicapped and nonhandicapped persons, but
must afford handicapped persons equal opportunity to obtain the same
result, to gain the same benefit, or to reach the same level of
achievement in the most integrated setting appropriate to the person's
needs.
(c) Despite the existence of permissible separate or different
programs or activities, a recipient may not deny a qualified handicapped
person the opportunity to participate in programs or activities that are
not separate or different.
(d) A recipient may not, directly or through contractual or other
arrangements, use criteria or methods of administration that:
[[Page 54]]
(1) Have the effect of subjecting qualified handicapped persons to
discrimination on the basis of handicap;
(2) Have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the recipient's program
with respect to handicapped persons; or
(3) Perpetuate the discrimination of another recipient if both
recipients are subject to common administrative control or are agencies
of the same State.
(e) In determining the site of a facility, an applicant for
assistance or a recipient may not make selections that:
(1) Have the effect of excluding handicapped persons from, denying
them the benefits of, or otherwise subjecting them to discrimination
under any program or activity that receives Federal assistance from GSA;
or
(2) Have the purpose or effect of defeating or substantially
impairing the accomplishment of the objectives of the program or
activity with respect to handicapped persons.
(f) As used in this section, the aid, benefit, or service provided
under a program or activity receiving or benefitting from Federal
assistance includes any aid, benefit, or service provided in or through
a facility that has been constructed, expanded, altered, leased, or
rented, or otherwise acquired, in whole or in part, with Federal
assistance.
(g) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to handicapped
persons or the exclusion of a specific class of handicapped persons from
a program limited by Federal statute or Executive order to a different
class of handicapped persons is not prohibited by this subpart.
(h) Recipients shall take appropriate steps to ensure that
communications with the donees, applicants, employees, and handicapped
persons participating in federally assisted programs and activities or
receiving aid, benefits, or services are available to persons with
impaired vision and hearing. Examples of communications methods include:
Telecommunication devices for the deaf (TDD's), other telephonic
devices, provision of braille materials, readers, and qualified sign
language interpreters.
(i) The enumeration of specific forms of prohibited discrimination
in this section does not limit the generality of the prohibition in
Sec. 101-8.302 of this subpart.
Sec. 101-8.304 Effect of State or local law or other requirements and
effect of employment opportunities.
(a) The obligation to comply with this subpart is not obviated or
alleviated by the existence of any State or local law or other
requirement that, on the basis of handicap, imposes prohibitions or
limits upon the eligibility of qualified handicapped persons to receive
services or to practice any occupation or profession.
(b) The obligation to comply with this subpart is not obviated or
alleviated because employment opportunities in any occupation or
profession are or may be more limited for handicapped persons than for
nonhandicapped persons.
Sec. 101-8.305 Employment practices prohibited.
(a) No qualified handicapped person shall, on the basis of handicap,
be subjected to employment discrimination under any program or activity
to which this subpart applies.
(b) A recipient shall make all decisions concerning employment under
any program or activity to which this subpart applies in a manner which
ensures that discrimination on the basis of handicap does not occur and
may not limit, segregate, or classify applicants or employees in any way
that adversely affects their opportunities or status because of
handicap.
(c) A recipient may not participate in a contractual or other
relationship that has the effect of subjecting qualified handicapped
applicants or employees to discrimination prohibited by this subpart.
The relationships referred to in this paragraph include relationships
with employment and referral agencies, labor unions, organizations
providing or administering fringe benefits to employees of the
recipient, and organizations providing training and apprenticeship
programs.
[[Page 55]]
(d) The provisions of this subpart apply to:
(1) Recruitment, advertising, and processing of applications for
employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(3) Rates of pay or any other form of compensation and changes in
compensation;
(4) Job assignments, job classifications, organizational structures,
position descriptions, lines of progression, and seniority lists;
(5) Leaves of absence, sick or otherwise;
(6) Fringe benefits available by virture of employment, whether
administered by the recipient or not;
(7) Selection and provision of financial support for training,
including apprenticeship, professional meetings, conferences, and other
related activities, and selection for leaves of absence to pursue
training;
(8) Employer-sponsored activities, including social or recreational
programs; and
(9) Any other term, condition, or privilege of employment.
(e) A recipient's obligation to comply with this subpart is not
affected by any inconsistent term of any collective bargaining agreement
to which it is a party.
Sec. 101-8.306 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known
physical or metal limitations of an otherwise qualified handicapped
applicant or employee unless the recipient can demonstrate that the
accommodation would impose an undue hardship on the operation of its
program.
(b) Reasonable accommodation may include:
(1) Making facilities used by employees readily accessible to and
usable by handicapped persons; and
(2) Job restructing; part-time or modified work schedules;
acquisition or modification of equipment or devices, such as
telecommunications devices or other telephonic devices for hearing
impaired persons; provision of reader or qualified sign language
interpreters; and other similar actions. These actions are to be taken
either upon request of the handicapped employee or, if not so requested,
upon the recipient's own initiative, after consultation with and
approval by the handicapped person.
(c) In determining, under paragraph (a) of this section, whether an
accommodation would impose an undue hardship on the operation of a
recipient's program, factors to be considered include:
(1) The overall size of the recipient's program with respect to
number of employees, number and type of facilities, and size of budget;
(2) The type of the recipient's operation, including the composition
and structure of the recipient's work force; and
(3) The nature and cost of the accommodation needed.
(d) A recipient may not deny an employment opportunity to a
qualified handicapped employee or applicant if the basis for the denial
is the need to make reasonable accommodation to the physical or mental
limitations of the employee or applicant.
Sec. 101-8.307 Employment criteria.
(a) A recipient may not use an employment test or other selection
criterion that screens out or tends to screen out handicapped persons
unless the test score or other selection criterion, as used by the
recipient, is shown to be job-related for the position in question.
(b) A recipient shall ensure that employment tests are adapted for
use by persons who have handicaps that impair sensory, manual, or
speaking skills except where those skills are the factors that the test
purports to measure.
Sec. 101-8.308 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient may not conduct a preemployment medical examination or may not
make preemployment inquiries of an applicant as to whether the applicant
is a handicapped person or as to the nature or severity of a handicap. A
recipient may, however, make preemployment
[[Page 56]]
inquiries into an applicant's ability to perform job-related functions.
(b) When a recipient is taking remedial action to correct the
effects of past discrimination, or is taking voluntary action to
overcome the effects of conditions that resulted in limited
participation in its federally assisted program or activity, or when a
recipient is taking affirmative action under section 503 of the
Rehabilitation Act of 1973, as amended, the recipient may invite
applicants for employment to indicate whether, and to what extent, they
are handicapped provided that:
(1) The recipient states clearly on any written questionnaire used
for this purpose or makes clear orally, if no written questionnaire is
used, that the information requested is intended for use solely in
connection with its remedial action obligations or its voluntary or
affirmative action efforts; and
(2) The recipient states clearly that the information is requested
on a voluntary basis, that it will be kept confidential as provided in
paragraph (d) of this section, that refusal to provide it will not
subject the applicant or employee to any adverse treatment, and that it
will be used only in accordance with this subpart.
(c) This section does not prohibit a recipient from conditioning an
offer of employment on the results of a medical examination conducted
prior to the employee's entrance on duty provided that all entering
employees are subjected to the examination regardless of handicap or
absence of handicap and results of the examination are used only in
accordance with the requirements of this subpart.
(d) Information obtained in accordance with this section concerning
the medical condition or history of the applicant shall be collected and
maintained on separate forms that are to be accorded confidentiality as
medical records, except that:
(1) Supervisors and managers may be informed of restrictions on the
work or duties of handicapped persons and of necessary accommodations;
(2) First aid and safety personnel may be informed, where
appropriate, if the condition might require emergency treatment; and
(3) Government officials investigating compliance with section 504
of the Rehabilitation Act of 1973, as amended, shall be provided
relevant information upon request.
Sec. 101-8.309 Program accessibility.
(a) General. No handicapped person shall, because a recipient's
facilities are inaccessible to or unusable by handicapped persons, be
denied the benefits of, be excluded from participation in, or be
subjected to discrimination under any program or activity that receives
or benefits from Federal assistance from GSA.
(b) Program accessibility. A recipient shall operate any program or
activity to which this subpart applies so that the program or activity,
when viewed in its entirety, is readily accessible to and usable by
handicapped persons. This paragraph does not require a recipient to make
each of its existing facilities or every part of a facility accessible
to and usable by handicapped persons.
(c) Methods. A recipient may comply with the requirement of
paragraph (a) of this section through such means as acquisition or
redesign of equipment, such as telecommunications devices or other
telephonic devices for the hearing impaired; reassignment of classes or
other services to alternate sites which have accessible buildings;
assignment of aides to beneficiaries, such as readers for the blind or
qualified sign language interpreters for the hearing impaired when
appropriate; home visits; delivery of health, welfare, or other social
services at alternate accessible sites; alterations of existing
facilities and construction of new facilities in conformance with the
requirements of Sec. 101-8.310; or any other methods that result in
making its program or activity accessible to handicapped persons. A
recipient is not required to make structural changes in existing
facilities where other methods are effective in achieving compliance
with paragraph (a) of this section. In choosing among available methods
for meeting the requirement of paragraph (a) of this section, a
recipient shall give priority to those methods that
[[Page 57]]
offer programs and activities to handicapped persons in the most
integrated setting appropriate.
(d) Small service providers. If a recipient with fewer than 15
employees finds, after consultation with a handicapped person seeking
its services, that there is no available method of complying with
paragraph (a) of this section other than making a significant alteration
in its existing facilities, the recipient may, as an alternative, refer
the handicapped person to other providers of those services that are
accessible at no additional cost to the handicapped person.
(e) Time period. A recipient shall comply with the requirement of
paragraph (a) of this section within 60 days of the effective date of
this subpart, except that where structural changes in facilities are
necessary, the changes are to be made as expeditiously as possible, but
in no event later than 3 years after the effective date of this subpart.
(f) Transition plan. In the event that structural changes to
facilities are necessary to meet the requirements of paragraph (a) of
this section, a recipient shall develop, within 6 months of the
effective date of this subpart, a transition plan setting forth the
steps necessary to complete the changes. The plan shall be developed
with the assistance of interested persons, including handicapped persons
or organizations representing handicapped persons, and the plan must
meet with the approval of the Director of Civil Rights, GSA. A copy of
the transition plan shall be made available for public inspection. At a
minimum, the plan shall:
(1) Identify physical obstacles in the recipient's facilities that
limit the accessibility to and usability by handicapped persons of its
program or activity;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
full program accessibility and, if the time period or the transition
plan is longer than 1 year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the person responsible for implementation of the plan.
(g) Notice. The recipient shall adopt and implement procedures to
ensure that interested persons, including persons with impaired vision
or hearing, can obtain information concerning the existence and location
of services, activities, and facilities that are accessible to, and
usable by, handicapped persons.
Sec. 101-8.310 New construction.
(a) Design and construction. Each facility or part of a facility
constructed by, on behalf of, or for the use of a recipient shall be
designed and constructed in a manner that the facility or part of the
facility is readily accessible to, and usable by, handicapped persons,
if the construction began after the effective date of this subpart.
(b) Alteration. Each facility or part of a facility which is altered
by, on behalf of, or for the use of a recipient after the effective date
of this subpart in a manner that affects or could affect the usability
of the facility or part of the facility shall, to the maximum extent
feasible, be altered in a manner that the altered portion of the
facility is readily accessible to and usable by handicapped persons.
(c) GSA Accessibility Standard. Design, construction, or alteration
of facilities shall be in conformance with the ``GSA Accessibility
Standard,'' PBS (PCD): DG6, October 14, 1980. A copy of the standard can
be obtained through the Business Service Centers, General Services
Administration, National Capital Region, 7th and D Streets, SW.,
Washington, DC 20407 or Regional Business Service Centers, Region 1,
John W. McCormack, Post Office and Courthouse, Boston, Massachusetts
02109; Region 2, 26 Federal Plaza, New York, New York 10007; Region 3,
Ninth and Market Streets, Philadelphia, Pennsylvania 19107; Region 4, 75
Spring Street, SW., Atlanta, Georgia 30303; Region 5, 230 South
Dearborn, Chicago, Illinois 60604; Region 6, 1500 East Bannister Road,
Kansas City, Missouri 64131; Region 7, 819 Taylor Street, Fort Worth,
Texas 76102; Region 8, Building 41, Denver Federal Center, Denver,
Colorado 80225; Region 9, 525 Market Street, San Francisco, California
94105; Region 10, GSA Center, Auburn, Washington 98002.
[[Page 58]]
In cases of practical difficulty, unnecessary hardship, or extreme
differences, exceptions may be granted from the literal requirements of
the above-mentioned standard, as defined in Secs. 101-19.604 and 101-
19.605 (``Exceptions'' and ``Waiver or modification of standards''), but
only when it is clearly evident that equal facilitation and protection
are thereby secured.
Sec. 101-8.311 Historic preservation programs.
(a) Definitions. For purposes of this section, the term:
(1) Historic preservation programs means programs receiving Federal
financial assistance that has preservation of historic properties as a
primary purpose.
(2) Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places.
(3) Substantial impairment means a permanent alteration that results
in a significant loss of the integrity of finished materials, design
quality or special character.
(b) Obligation--(1) Program accessibility. In the case of historic
preservation programs, program accessibility means that, when viewed in
its entirety, a program is readily accessible to and usable by
handicapped persons.
This paragraph does not necessarily require a recipient to make each of
its existing historic properties or every part of an historic property
accessible to and usable by handicapped persons. Methods of achieving
program accessibility include:
(i) Making physical alterations which enable handicapped persons to
have access to otherwise inaccessible areas or features of historic
properties;
(ii) Using audio-visual materials and devices to depict otherwise
inaccessible areas or features of historic properties;
(iii) Assigning persons to guide handicapped persons into or through
otherwise inaccessible portions of historic properties;
(iv) Adopting other innovative methods to achieve program
accessibility.
Because the primary benefit of an historic preservation program is the
experience of the historic property itself, in taking steps to achieve
program accessibility, recipients shall give priority to those means
which make the historic property, or portions thereof, physically
accessible to handicapped individuals.
(2) Waiver of accessibility standards. Where program accessibility
cannot be achieved without causing a substantial impairment of
significant historic features, the Administrator may grant a waiver of
the program accessibility requirement. In determining whether program
accessibility can be achieved without causing a substantial impairment,
the Administrator shall consider the following factors:
(i) Scale of property, reflecting its ability to absorb alterations;
(ii) Use of the property, whether primarily for public or private
purpose;
(iii) Importance of the historic features of the property to the
conduct of the program; and
(iv) Cost of alterations in comparison to the increase in
accessibility.
The Administrator shall periodically review any waiver granted under
this section and may withdraw it if technological advances or other
changes so warrant.
(c) Advisory Council comments. Where the property is federally owned
or where Federal funds may be used for alterations, the comments of the
Advisory Council on Historic Preservation shall be obtained when
required by section 106 of the National Historic Preservation Act of
1966, as amended (16 U.S.C. 470), and 36 CFR part 800, prior to
effectuation of structural alterations.
Sec. 101-8.312 Procedures.
The procedural provisions of title VI of the Civil Rights Act of
1964 are adopted and stated in Secs. 101-6.205-101-6.215 and apply to
this subpart. (Sec. 205(c), 63 Stat. 390; 40 U.S.C. 486(c).)
Sec. 101-8.313 Self-evaluation.
(a) Procedures. Each recipient shall, within one year of the
effective date of this part:
(1) Whenever possible, evaluate, with the assistance of interested
persons, including handicapped persons or organizations representing
handicapped persons, its current policies and practices and the effects
thereof that do not or
[[Page 59]]
may not meet the requirements of this part;
(2) Modify any policies and practices which do not or may not meet
the requirements of this part; and
(3) Take appropriate remedial steps to eliminate the effects of
discrimination which resulted or may have resulted from adherence to
these questionable policies and practices.
(b) Availability of self-evaluation and related materials.
Recipients shall maintain on file, for at least three years following
its completion, the evaluation required under paragraph (a) of this
section, and shall provide to the Director, upon request, a description
of any modifications made under paragraph (a)(2) of this section and of
any remedial steps taken under paragraph (a)(3) of this section.
Subparts 101-8.4--101-8.6 [Reserved]
Subpart 101-8.7--Discrimination Prohibited on the Basis of Age
Authority: 42 U.S.C. 6101 et seq.
Source: 50 FR 23412, June 4, 1985, unless otherwise noted.
Sec. 101-8.700 Purpose of the Age Discrimination Act of 1975.
The Age Discrimination Act of 1975, as amended, prohibits
discrimination on the basis of age in programs or activities receiving
Federal financial assistance.
Sec. 101-8.701 Scope of General Services Administration's age discrimination
regulation.
This regulation sets out General Services Administration's (GSA)
policies and procedures under the Age Discrimination Act of 1975, as
amended, in accordance with 45 CFR part 90. The Act and the Federal
regulation permits Federal financial assistance programs and activities
to continue to use certain age distinctions and factors other than age
which meet the requirements of the Act and its implementing regulations.
Sec. 101-8.702 Applicability.
(a) The regulation applies to each GSA recipient and to each program
or activity operated by the recipient that benefits from GSA Federal
financial assistance.
(b) The regulations does not apply to:
(1) An age distinction contained in that part of Federal, State,
local statute or ordinance adopted by an elected, general purpose
legislative body that:
(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 any labor-management apprenticeship training
program, except for any program or activity receiving Federal financial
assistance for public service employment under the Comprehensive
Employment and Training Act (CETA) (29 U.S.C. 801 et seq.).
Sec. 101-8.703 Definitions of terms.
(a) As used in these regulations, the term: 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.
(c) Age means how old a person is, or the number of years from the
date of a person's birth.
(d) Age distinction means any action using age or an age-related
term.
(e) Age-related term means a word or words that imply a particular
age or range or ages (for example, children, adult, older person, but
not student).
(f) Agency means a Federal department or agency empowered to extend
Federal financial assistance.
(g) Agency Responsible Officials:
(1) Administrator means the Administrator of General Services.
(2) Director, Office of Civil Rights means the individual
responsible for managing the agency's nondiscrimination Federal
financial assistance program, or his or her designee.
(h) Federal financial assistance means (1) grants and loans of
Federal funds, (2) the grant or donation of Federal
[[Page 60]]
property and interests in property, (3) the services of Federal
personnel, (4) the sale and lease of, and the permission to use (on
other than a casual or transient basis), Federal property or any
interest in such property without consideration or at a nominal
consideration, or at a consideration which is reduced for the purposes
of assisting the recipient, or in recognition of the public interest to
be served by such sale or lease to the recipient, and (5) any Federal
agreement, arrangement, or other contract which has as one of its
purposes the provision of assistance.
(i) GSA means the United States General Services Administration.
(j) Primary recipient means any recipient which is authorized or
required to extend Federal financial assistance to another recipient for
the purpose of carrying out a program.
(k) Recipient means any State, political subdivision of any State,
or instrumentality of any State or political subdivision, any public or
private agency, institution, or organization, or any other entity, or
any individual, in any State, to whom Federal financial assistance is
extended, directly or through another recipient, for any program,
including any successor, assign, or transferee thereof, but such term
does not include any ultimate beneficiary under any such program.
Sec. 101-8.704 Rules against age discrimination.
The rules stated in this section are limited by the exceptions
contained in Sec. 101-8.706 of this regulation
(a) General rule. No person in the United States may on the basis of
age, be excluded from participation, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving
Federal financial assistance from GSA.
(b) Specific rules. A recipient may not, in any program or activity
receiving Federal financial assistance, directly or through contractual
licensing, or other arrangement, use age distinctions or take any other
actions that have the effect on the basis of age, of:
(1) Excluding individuals from participating in, denying them the
benefits of, or subjecting them to discrimination under a program or
activity receiving Federal financial assistance; or
(2) Denying or limiting individual opportunity to participate in any
program or activity receiving Federal financial assistance.
(c) The forms of age discrimination listed in paragraph (b) of this
section are not necessarily a complete list.
Sec. 101-8.705 Definition of normal operation and statutory objective.
The terms normal operation and statutory objective are defined as
follows:
(a) Normal operation means the operation of a program or activity
without significant changes that would inhibit meeting objectives.
(b) Statutory objective means any purpose of a program or activity
expressly stated in any Federal, State, or local statute or ordinance
adopted by an elected, general purpose legislative body.
Sec. 101-8.706 Exceptions to the rules against age discrimination.
Sec. 101-8.706-1 Normal operation or statutory objective of any program
or activity.
A recipient is permitted to take an action, otherwise prohibited, if
the action reasonably takes into account age as a factor necessary to
the normal operation or achievement of any statutory objective of a
program or activity. An action reasonably takes into account age as a
factor if:
(a) Age is used as a measure or approximation of one or more other
characteristics; and
(b) The other characteristic must be measured or approximated for
the normal operation of the program or activity to continue, or to
achieve any statutory objective of the program or activity; and
(c) The other characteristic can be reasonably measured or
approximated by the use of age; and
(d) The other characteristic is impractical to measure directly on
an individual basis.
Sec. 101-8.706-2 Reasonable factors other than age.
(a) A recipient is permitted to take an action, otherwise prohibited
by
[[Page 61]]
Sec. 101-8.706-1, which is based on something other than age, even
though the action may have a disproportionate effect on persons of
different ages.
(b) An action may be based on a factor other than age only if the
factor bears a direct and substantial correlation to the normal
operation of the program or activity or to the achievement of a
statutory objective.
Sec. 101-8.707 Burden of proof.
The burden of proving that an age distinction or other action falls
within the exceptions outlined in Sec. 101-8.706 is the recipient's.
Sec. 101-8.708 Affirmative action by recipient.
Even in the absence of a finding of age discrimination, a recipient
may take affirmative action to overcome the effects resulting in limited
participation in the recipient's program or activity.
Sec. 101-8.709 Special benefits for children and the elderly.
If a recipient's program provides special benefits to the elderly or
to children, such use of age distinctions is presumed to be necessary to
the normal operation of the program, notwithstanding the provisions of
Sec. 101-8.705.
Sec. 101-8.710 Age distinctions contained in General Services Administration
regulation.
Any age distinctions contained in a rule or regulation issued by GSA
are presumed to be necessary to the achievement of a statutory objective
of the program to which the rule or regulation applies. The GSA
regulation 41 CFR 101-44.207(a) (3) through (27), describes specific
Federal financial assistance programs which provide assistance to all
age groups. However, the ``Child Care Center'' program servicing
children through age 14, and ``Programs for Older Individuals'', are the
only two programs where age distinctions are provided.
Sec. 101-8.711 General responsibilities.
Each recipient of Federal financial assistance from GSA is
responsible for ensuring that its programs and activities comply with
the Act and this regulation and must take steps to eliminate violations
of the Act. A recipient is also responsible for maintaining records,
providing information, and affording GSA access to its records to the
extent GSA finds necessary to determine whether the recipient is
complying with the Act and this regulation.
Sec. 101-8.712 Notice to subrecipients and beneficiaries.
(a) If a primary recipient passes on Federal financial assistance
from GSA to subrecipients, the primary recipient provides to
subrecipients, written notice of their obligations under the Act and
this regulation.
(b) Each recipient makes necessary information about the Act and
this regulation available to its program beneficiaries to inform them
about the protections against discrimination provided by the Act and
this regulation.
Sec. 101-8.713 Assurance of compliance and recipient assessment of age
distinctions.
(a) Each recipient of Federal financial assistance from GSA signs a
written assurance as specified by GSA that it intends to comply with the
Act and this regulation.
(b) Recipient assessment of age distinctions.
(1) As part of a compliance review under Sec. 101-8.715 or complaint
investigation under Sec. 101.8.718, GSA may require a recipient
employing the equivalent of 15 or more employees to complete a written
self-evaluation of any age distinction imposed in its program or
activity receiving Federal financial assistance from GSA to assess the
recipient's compliance with the Act.
(2) If an assessment indicates a violation of the Act and the GSA
regulation, the recipient takes corrective action.
Sec. 101-8.714 Information requirements.
Each recipient must:
(a) Keep records in a form and containing information that GSA
determines necessary to ensure that the recipient is complying with the
Act and this regulation.
[[Page 62]]
(b) Provide to GSA upon request, information and reports that GSA
determines necessary to find out whether the recipient is complying with
the Act and this regulation.
(c) Permit reasonable access by GSA to books, records, accounts,
facilities, and other sources of information to the extent GSA finds it
necessary to find out whether the recipient is complying with the Act
and this regulation. GSA adopts HHS policy regarding the kinds of data
and information recipients are expected to keep (45 CFR 90.34). This
policy is parallel to compliance information sections in the title VI,
title IX, and section 504 implementation regulations. While recognizing
the need for enough data to assess recipient compliance, GSA is
committed to lessening the data gathering burden on recipients. GSA
further recognizes that there is no established body of knowledge or
experience to guide the assessment of age discrimination. This
regulation, therefore, does not impose specific data requirements upon
recipients, rather, it allows GSA to be flexible in deciding what kinds
of data should be kept by recipients, based on what kinds of data prove
useful as GSA gains experience with the Age Discrimination Act, and age
discrimination issues become clearer.
(d) In accordance with the Paperwork Reduction Act of 1980 (Pub. L.
59-511), the reporting and record keeping provisions included in this
regulation will be submitted, for approval, to the Office of Management
and Budget (OMB). No data collection or record keeping requirement will
be imposed on recipients or donees without the required OMB approval
number.
Sec. 101-8.715 Compliance reviews.
(a) GSA may conduct compliance reviews and use similar procedures to
investigate and correct violations of the Act and this regulation. GSA
may conduct the reviews even in the absence of a complaint against a
recipient. The reviews may be as comprehensive as necessary to determine
whether a violation of the Act and this regulation has occurred.
(b) If a compliance review indicates a violation of the Act or this
regulation, GSA attempts to achieve voluntary compliance with the Act.
If compliance cannot be achieved, GSA arranges for enforcement as
described in Sec. 101-8.720.
Sec. 101-8.716 Complaints.
(a) Any person, individually or as a member of a class (defined at
Sec. 101-8.703(e)) or on behalf of others, may file a complaint with GSA
alleging discrimination prohibited by the Act or this regulation based
on an action occurring after July 1, 1979. A complainant must file a
complaint within 80 days from the date the complainant first has
knowledge of the alleged act of discrimination. However, for good cause
shown, GSA may extend this time limit.
(b) GSA considers the date a complaint is filed to be the date upon
which the complaint is sufficient to be processed.
(c) GSA attempts to facilitate the filing of complaints if possible,
including taking the following measures:
(1) Accepting as a sufficient complaint, any written statement that
identifies the parties involved and the date the complainant first had
knowledge of the alleged violation, describes the action or practice
complained of, and is signed by the complainant;
(2) Freely 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
representative) of their right to contact GSA for information and
assistance regarding the complaint resolution process.
(d) GSA returns to the complainant any complaint outside the
jurisdiction of this regulation, and states the reason(s) why it is
outside the jurisdiction of the regulation.
Sec. 101-8.717 Mediation.
(a) GSA promptly refers to the mediation agency designated by the
Secretary, HHS, all sufficient complaints that:
(1) Fall within the jurisdiction of the Act and this regulation,
unless the age distinction complained of is clearly within an exception;
and
(2) Contain the information needed for further processing.
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(b) Both the complainant and the recipient must participate in the
mediation process to the extent necessary to reach an agreement or make
an informed judgement that an agreement is not possible. Both parties
need not meet with the mediator at the same time.
(c) If the complainant and the recipient agree, the mediator will
prepare a written statement of the agreement and have the complainant
and the recipient sign it. The mediator must send a copy of the
agreement to GSA. GSA takes no further action on the complaint unless
the complainant or the recipient fails to comply with the agreement.
(d) The mediator must protect the confidentiality of all information
obtained in the course of the mediation. No mediator may 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) The mediation proceeds for a maximum of 60 calendar days after a
complaint is filed with GSA. Mediation ends if:
(1) 60 calendar days elapse from the time the complaint is filed; or
(2) Before the end of the 60 calendar-day period an agreement is
reached; or
(3) Before the end of that 60 calendar-day period, the mediator
finds that an agreement cannot be reached.
Note: The 60 calendar day period may be extended by the mediator,
with the concurrence of GSA, for not more than 30 calendar days if the
mediator determines that agreement is likely to be reached during the
extension period.
(f) The mediator must return unresolved complaints to GSA.
Sec. 101-8.718 Investigation.
(a) Informal investigation. GSA investigates complaints that are
unresolved after mediation or are reopened because of a violation of a
mediation agreement. As part of the initial investigation, GSA uses
informal factfinding methods, including joint or separate discussions
with the complainant and the recipient, to establish the fact and, if
possible, settle the complaint on terms that are mutually agreeable to
the parties. GSA may seek the assistance of any involved State program
agency. GSA puts any agreement in writing and has it signed by the
parties and an authorized official designated by the Administrator or
the Director, Office of Organization and Personnel. The settlement may
not affect the operation of any other enforcement efforts of GSA,
including compliance reviews and investigation of other complaints that
may involve the recipient. The settlement is not a finding of
discrimination against a recipient.
(b) Formal investigation. If GSA cannot resolve the complaint
through informal investigation, it begins to develop formal findings
through further investigation of the complaint. If the investigation
indicates a violation of these regulations, GSA attempts to obtain
voluntary compliance. If GSA cannot obtain voluntary compliance, it
begins enforcement as described in Sec. 101-8.720.
Sec. 101-8.719 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 of this
regulation; or
(b) Cooperates in any mediation, investigation, hearing,
conciliation, and enforcement process.
Sec. 101-8.720 Compliance procedure.
(a) GSA may enforce the Act and these regulations through:
(1) Termination of a recipient's Federal financial assistance from
GSA under the program or activity involved where the recipient has
violated the Act or this regulation. 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.
(2) Any other means authorized by law including, but not limited to:
(i) Referral to the Department of Justice for proceeding to enforce
any rights of the United States or obligations of the recipients created
by the Act or this regulation, or
(ii) Use of any requirement of or referral to any Federal, State, or
local government agency that has the effect
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of correcting a violation of the Act or this regulation.
(b) GSA limits any termination to the particular recipient and
program or activity or part of such program and activity GSA finds in
violation of this regulation. GSA does not base any part of a
termination on a finding with respect to any program or activity of the
recipient that does not receive Federal financial assistance from GSA.
(c) GSA takes no action under paragraph (a) until:
(1) The administrator advises the recipient of its failure to comply
with the Act and this regulation and determines that voluntary
compliance cannot be obtained, and
(2) 30 calendar days elapse after the Administrator sends a written
report of the grounds of the action to the committees of Congress having
legislative jurisdiction over the Federal program or activity involved.
The Administrator files a report if any action is taken under paragraph
(a) of this section .
(d) GSA may also defer granting new Federal financial assistance
from GSA to a recipient when a hearing under Sec. 101-8.721 is
initiated.
(1) New Federal financial assistance from GSA includes all
assistance for which GSA 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 GSA does not include assistance approved before the beginning of a
hearing.
(2) GSA does not begin a deferral until the recipient receives
notice of an opportunity for a hearing under Sec. 101-8.721. GSA does
not continue a deferral for more than 60 calendar days unless a hearing
begins within that time or the time for beginning the hearing is
extended by mutual consent of the recipient and the Administrator. GSA
does not continue a deferral for more than 30 calendar days after the
close of the hearing, unless the hearing results in a finding against
the recipient.
(3) GSA limits any deferral to the particular recipient and program
or activity or part of such program or activity GSA finds in violation
of these regulations. GSA does not base any part of a deferral on a
finding with respect to any program or activity of the recipient which
does not, and would not, receive Federal financial assistance from GSA.
Sec. 101-8.721 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required, reasonable notice shall be given by registered or certified
mail, return receipt requested, to the affected applicant or recipient.
This notice shall advise the applicant or recipient of the action
proposed to be taken, the specific provision under which the proposed
action against it is to be taken, and the matters of fact or law
asserted as the basis for this action; and either fix a date not less
than 20 days after the date of such notice within which the applicant or
recipient may request of the responsible GSA official that the matter be
scheduled for hearing or advise the applicant or recipient that the
matter in question has been set down for hearing at a stated place and
time. The time and place so fixed shall be reasonable and shall be
subject to change for cause. The complainant, if any, shall be advised
of the time and place of the hearing. An applicant or recipient may
waive a hearing and submit written information and argument for the
record. The failure of an applicant or recipient to request a hearing
for which a data has been set shall be deemed to be a waiver of the
right to a hearing under section 602 of the Act, and consent to the
making of a decision on the basis of such information as may be filed as
the record.
(b) Time and place of hearing. Hearings shall be held at GSA in
Washington, D.C., at a time fixed by the Director, Office of Civil
Rights (OCR), unless he or she determines that the convenience of the
applicant or recipient or of GSA requires that another place be
selected. Hearings shall be held before a hearing examiner designated in
accordance with 5 U.S.C. 3105 and 3344 (section 11 of the Administrative
Procedure Act).
(c) Right to counsel. In all proceedings under this section, the
applicant or recipient and GSA shall have the right to be represented by
counsel.
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(d) Procedures, evidence, and record. (1) The hearing, decision, and
any administrative review thereof shall be conducted in conformity with
sections 5-8 of the Administrative Procedure Act, and in accordance with
such rules of procedure as are proper (and not inconsistent with this
section) relating to the conduct of the hearing, giving of notices
subsequent to those provided for in paragraph (a) of this section,
taking of testimony, exhibits, arguments and briefs, requests for
findings, and other related matters. Both GSA and the applicant or
recipient shall be entitled to introduce all relevent evidence on the
issues as stated in the notice for hearing or as determined by the
Officer conducting the hearing at the outset of or during the hearings.
Any person (other than a Government employee considered to be on
official business) who, having been invited or requested to appear and
testify as a witness on the Government's behalf, attends at a time and
place scheduled for a hearing provided for by this part, may be
reimbursed for his travel and actual expenses of attendance in an amount
not to exceed the amount payable under the standardized travel
regulations to a Government employee traveling on official business.
(2) Technical rules of evidence shall not apply to hearings
conducted pursuant to this part, but rules or principles designed to
assure production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary by the officer conducting the hearing. The hearing officer may
exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for the record shall be
open to examination by the parties and opportunity shall be given to
refute facts and arguments advances on either side of the issues. A
transcript shall be made of the oral evidence except to the extent the
substance thereof is stipulated for the record. All decisions shall be
based upon the hearing record and written findings shall be made.
(e) Consolidated of Joint Hearings. In cases in which the the same
or related facts are asserted to constitute non-compliance with this
regulation with respect to two or more programs to which this part
applies, or noncompliance with this part, and the regulations of one or
more other Federal departments or agencies issued under title VI of the
Act, the responsible GSA official may, by agreement with such other
departments or agencies where applicable, provide for the conduct of
consolidated or joint hearings, and for the application to such hearings
of rules of procedures not inconsistent with this part. Final decisions
in such cases, insofar as this regulation is concerned, shall be made in
accordance with Sec. 101-8.722.
Sec. 101-8.722 Decisions and notices.
(a) Decisions by hearing examiners. After a hearing is held by a
hearing examiner such hearing examiner shall either make an initial
decision, if so authorized, or certify the entire record including his
recommended findings and proposed decision to the Agency designated
reviewing authority for final decision. A copy of such initial decision
or certification shall be mailed to the applicant or recipient and to
the complainant, if any. Where the initial decision referred to in this
paragraph or in paragraph (c) of this section is made by the hearing
examiner, the applicant or recipient or the counsel for GSA may, within
the period provided for in the rules of procedure issued by GSA
official, file with the reviewing authority exceptions to the initial
decision, with his or her reasons therefore. Upon the filing of such
exceptions the reviewing authority shall review the initial decision and
issue a decision including the reasons therefor. In the absence of
exceptions the initial decision shall constitute the final decision,
subject to the provisions of paragraph (e) of this section.
(b) Decisions on record or review by the reviewing authority.
Whenever a record is certified to the reviewing authority for decision
or it reviews the decision of a hearing examiner pursuant to paragraph
(a) or (c) of this section, the applicant or recipient shall be given
reasonable opportunity to file with it briefs or other written
statements of its contentions, and a copy of the final decision of the
reviewing authority
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shall be given in writing to the applicant or recipient and to the
complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to Sec. 101-8.721(a) the reviewing authority
shall make its final decision on the record or refer the matter to a
hearing examiner for an initial decision to be made on the record. A
copy of such decision shall be given in writing to the applicant or
recipient, and to the complainant, if any.
(d) Rulings required. Each decision of a hearing examiner or
reviewing authority shall set forth a ruling on each findings,
conclusion, or exception presented, and shall identify the requirement
or requirements imposed by or pursuant to this part with which it is
found that the applicant or recipient has failed to comply.
(e) Review in certain cases by the Administrator. If the
Administrator has not personally made the final decision referred to in
paragraph (a), (b), or (c) of this section, a recipient or applicant or
the counsel for GSA may request the Administrator to review a decision
of the Reviewing Authority in accordance with rules of procedure issued
by the responsible GSA official. Such review is not a matter of right
and shall be granted only where the Administrator determines there are
special and important reasons therefor. The Administrator may grant or
deny such request, in whole or in part. He or she may also review such a
decision in accordance with rules of procedure issued by the responsible
GSA official. In the absence of a review under this paragraph, a final
decision referred to in paragraphs (a), (b), (c) of this section shall
become the final decision of GSA when the Administrator transmits it as
such to Congressional committees with the report required under section
602 of the Act. Failure of an applicant or recipient to file an
exception with the Reviewing Authority or to request review under this
paragraph shall not be deemed a failure to exhaust administrative
remedies for the purpose of obtaining judicial review.
(f) Content of orders. The final decision may provide for suspension
or termination of, or refusal to grant or continue Federal financial
assistance, in whole or in part, to which this regulation applies, and
may contain such terms, conditions and other provisions as are
consistent with and will effectuate the purposes of the Act and this
regulation, including provisions designed to assure that no Federal
financial assistance to which this regulation applies will thereafter be
extended under such law or laws to the applicant or recipient determined
by such decision to be in default in its performance of an assurance
given by it pursuant to this regulation, or to have otherwise failed to
comply with this regulation unless and until it corrects its
noncompliance and satisfies the responsible GSA official that it will
fully comply with this regulation.
(g) Post-termination proceedings. (1) An applicant or recipient
adversely affected by an order issued under paragraph (f) of this
section shall be restored to full eligibility to receive Federal
financial assistance if it satisfies the terms and conditions of that
order for such eligibility or if it brings itself into compliance with
this part and provides reasonable assurance that is will fully comply
with this part.
(2) Any applicant or recipient adversely affected by an order
entered pursuant to paragraph (f) of this section may at any time
request the responsible GSA official to restore fully its eligibility to
receive Federal financial assistance. Any such request shall be
supported by information showing that the applicant or recipient has met
the requirements of paragraph (g)(1) of this section. If the responsible
GSA official determines that those requirements have been satisfied, he
or she shall restore such eligibility.
(3) If the responsible GSA official denies any such request, the
applicant or recipient may submit a request for a hearing in writing,
specifying why it believes such official to have been in error. It shall
thereupon be given an expeditious hearing, with a decision on the
record, in accordance with rules of procedure issued by the responsible
GSA official. The applicant or recipient will be restored to such
eligibility if it proves at such hearing that it satisfied the
requirements of paragraph (g)(1) of this section. While proceedings
under this paragraph are pending, the
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sanctions imposed by the order issued under paragraph (f) of this
section shall remain in effect.
Sec. 101-8.723 Remedial action by recipient.
If GSA finds a recipient discriminated on the basis of age, the
recipient must take any remedial action that GSA may require to overcome
the effects of the discrimination. If another recipient exercises
control over the recipient that discriminated, GSA may require both
recipients to take remedial action.
Sec. 101-8.724 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 calendar days elapse after the complainant files the
complaint and GSA makes no finding with regard to the complaint; or
(2) GSA Issues a finding in favor of the recipient.
(b) If GSA fails to make a finding within 180 days or issues a
finding in favor of the recipient, GSA must:
(1) Promptly advise the complainant of this fact;
(2) Advise the complainant of his or her right to bring civil action
for injunctive relief; and
(3) Inform the complainant:
(i) That the complainant may bring civil action only in a 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 must give 30
calendar days notice by registered mail to the Secretary, HHS, The
Administrator, 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 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.
Sec. 101-8.725 Alternate funds disbursal.
If GSA withholds Federal financial assistance from a recipient under
this regulation, the Administrator may disburse the assistance to an
alternate recipient; any public or nonprofit private organization; or
agency or State or political subdivision of the State. The Administrator
requires any alternate recipient to demonstrate:
(a) The ability to comply with this regulation; and
(b) The ability to achieve the goals of the Federal Statutes
authorizing the program or activity.
PART 101-9--FEDERAL MAIL MANAGEMENT--Table of Contents
Authority: Sec. 2, Pub. L. 94-575, as amended, 44 U.S.C. 2904; 40
U.S.C. 486(c); Sec. 205(c), 63 Stat. 390.
Source: 67 FR 38897, June 6, 2002, unless otherwise noted.
Sec. 101-9.000 Cross-reference to the Federal Management Regulation (FMR)
(41 CFR chapter 102, parts 102-1 through 102-220).
For Federal mail management information previously contained in this
part, see FMR part 192 (41 CFR part 102-192).
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