[Title 45 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2011 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
Title 45
Public Welfare
________________________
Part 1200 to End
Revised as of October 1, 2011
Containing a codification of documents of general
applicability and future effect
As of October 1, 2011
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
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Table of Contents
Page
Explanation................................................. v
Title 45:
SUBTITLE B--Regulations Relating to Public Welfare
(Continued)
Chapter XII--Corporation for National and Community
Service 5
Chapter XIII--Office of Human Development Services,
Department of Health and Human Services 91
Chapter XVI--Legal Services Corporation 387
Chapter XVII--National Commission on Libraries and
Information Science 487
Chapter XVIII--Harry S. Truman Scholarship
Foundation 507
Chapter XXI--Commission of Fine Arts 527
Chapter XXIII--Arctic Research Commission 549
Chapter XXIV--James Madison Memorial Fellowship
Foundation 559
Chapter XXV--Corporation for National and Community
Service 579
Finding Aids:
Table of CFR Titles and Chapters........................ 851
Alphabetical List of Agencies Appearing in the CFR...... 871
List of CFR Sections Affected........................... 881
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 45 CFR 1201.1 refers
to title 45, part 1201,
section 1.
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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
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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
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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
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To determine whether a Code volume has been amended since its
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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.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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``[RESERVED]'' TERMINOLOGY
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This material, like any other properly issued regulation, has the force
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What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
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CFR INDEXES AND TABULAR GUIDES
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that volume.
[[Page vii]]
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Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2011.
[[Page ix]]
THIS TITLE
Title 45--Public Welfare is composed of four volumes. The parts in
these volumes are arranged in the following order: Parts 1-199, 200-499,
500-1199, and 1200 to end. Volume one (parts 1-199) contains all current
regulations issued under subtitle A--Department of Health and Human
Services. Volume two (parts 200-499) contains all current regulations
issued under subtitle B--Regulations Relating to Public Welfare, chapter
II--Office of Family Assistance (Assistance Programs), Administration
for Children and Families, Department of Health and Human Services,
chapter III--Office of Child Support Enforcement (Child Support
Enforcement Program), Administration for Children and Families,
Department of Health and Human Services, and chapter IV--Office of
Refugee Resettlement, Administration for Children and Families,
Department of Health and Human Services. Volume three (parts 500-1199)
contains all current regulations issued under chapter V--Foreign Claims
Settlement Commission of the United States, Department of Justice,
chapter VI--National Science Foundation, chapter VII--Commission on
Civil Rights, chapter VIII--Office of Personnel Management, chapter X--
Office of Community Services, Administration for Children and Families,
Department of Health and Human Services, and chapter XI--National
Foundation on the Arts and the Humanities. Volume four (part 1200 to
end) contains all current regulations issued under chapter XII--
Corporation for National and Community Service, chapter XIII--Office of
Human Development Services, Department of Health and Human Services,
chapter XVI--Legal Services Corporation, chapter XVII--National
Commission on Libraries and Information Science, chapter XVIII--Harry S
Truman Scholarship Foundation, chapter XXI--Commission of Fine Arts,
chapter XXIII--Arctic Research Commission, chapter XXIV--James Madison
Memorial Fellowship Foundation, and chapter XXV--Corporation for
National and Community Service. The contents of these volumes represent
all of the current regulations codified under this title of the CFR as
of October 1, 2011.
For this volume, Susannah C. Hurley was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
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TITLE 45--PUBLIC WELFARE
(This book contains part 1200 to end)
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SUBTITLE B--Regulations Relating to Public Welfare (Continued)
Part
chapter xii--Corporation for National and Community Service. 1201
chapter xiii--Office of Human Development Services,
Department of Health and Human Services................... 1301
chapter xvi--Legal Services Corporation..................... 1600
chapter xvii--National Commission on Libraries and
Information Science....................................... 1700
chapter xviii--Harry S. Truman Scholarship Foundation....... 1800
chapter xxi--Commission of Fine Arts........................ 2101
chapter xxiii--Arctic Research Commission................... 2301
chapter xxiv--James Madison Memorial Fellowship Foundation.. 2400
chapter xxv--Corporation for National and Community Service. 2505
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Subtitle B--Regulations Relating to Public Welfare (Continued)
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CHAPTER XII--CORPORATION FOR NATIONAL AND COMMUNITY SERVICE
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Part Page
1200 [Reserved]
1201 Production or disclosure of official
information in response to court orders,
subpoenas, notices of depositions,
requests for admissions,
interrogatories, or in connection with
Federal or State litigation............. 7
1203 Nondiscrimination in federally assisted
programs--effectuation of title VI of
the Civil Rights Act of 1964............ 11
1206 Grants and contracts--suspension and
termination and denial of application
for refunding........................... 20
1210 VISTA trainee deselection and volunteer
early termination procedures............ 31
1211 Volunteer grievance procedures.............. 37
1212 Volunteer agencies procedures for National grant
volunteers [Reserved]
1214 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by ACTION.......... 43
1216 Nondisplacement of employed workers and
nonimpairment of contracts for service.. 48
1217 VISTA volunteer leader...................... 50
1218 VISTA volunteers--hearing opportunity....... 51
1219 Competitive service eligibility............. 52
1220 Payment of volunteer legal expenses......... 53
1222 Participation of project beneficiaries...... 55
1225 Volunteer discrimination complaint procedure 56
1226 Prohibitions on electoral and lobbying
activities.............................. 63
1230 New restrictions on lobbying................ 67
1232 Nondiscrimination on basis of handicap in
programs or activities receiving Federal
financial assistance.................... 79
1233 Intergovernmental review of ACTION programs. 86
1235 Locally generated contributions in Older
American Volunteer Programs............. 88
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PART 1200 [RESERVED]
PART 1201_PRODUCTION OR DISCLOSURE OF OFFICIAL INFORMATION IN RESPONSE TO
COURT ORDERS, SUBPOENAS, NOTICES OF DEPOSITIONS, REQUESTS FOR ADMISSIONS,
INTERROGATORIES, OR IN CONNECTION WITH FEDERAL OR STATE LITIGATION--Table of
Contents
Sec.
1201.1 Definitions.
1201.2 Scope.
1201.3 Service of summonses and complaints.
1201.4 Service of subpoenas, court orders, and other demands or requests
for official information or action.
1201.5 Testimony and production of documents prohibited unless approved
by appropriate Corporation officials.
1201.6 Procedure when testimony or production of documents is sought.
1201.7 Procedure when response is required prior to receiving
instructions.
1201.8 Procedure in the event of an adverse ruling.
1201.9 Considerations in determining whether the Corporation will comply
with a demand or request.
1201.10 Prohibition on providing expert or opinion testimony.
1201.11 Authority.
Authority: 42 U.S.C. 12501 et seq.
Source: 63 FR 4598, Jan. 30, 1998, unless otherwise noted.
Sec. 1201.1 Definitions.
(a) Corporation Employee means the Chief Executive Officer of the
Corporation and all employees, former employees, National Civilian
Community Corps Members (hereinafter sometimes known as ``Corps
Members''), and VISTA Volunteers (hereinafter sometimes also known as
``AmeriCorps*VISTA Members''), who are or were subject to the
supervision, jurisdiction, or control of the Chief Executive Officer,
except as the Corporation may otherwise determine in a particular case.
(b) Litigation encompasses all pre-trial, trial, and post-trial
stages of all judicial or administrative actions, hearings,
investigations, or similar proceedings before courts, commissions,
boards, or other judicial or quasi-judicial bodies or tribunals, whether
criminal, civil, or administrative in nature.
(c) Official Information means all information of any kind, however
stored, that is in the custody and control of the Corporation, relates
to information in the custody and control of the Corporation, or was
acquired by individuals connected with the Corporation as part of their
official status within the Corporation while such individuals are
employed by, or serve on behalf of, the Corporation.
Sec. 1201.2 Scope.
(a) This part states the procedures followed with respect to:
(1) Service of summonses and complaints or other requests or demands
directed to the Corporation or to any Corporation employee in connection
with Federal or State litigation arising out of, or involving the
performance of, official activities of the Corporation; and
(2) Oral or written disclosure, in response to subpoenas, orders, or
other requests or demands from Federal or by State judicial or quasi-
judicial authority, whether civil or criminal, or in response to
requests for depositions, affidavits, admissions, responses to
interrogatories, document production, or other litigation-related
matters of:
(i) Any material contained in the files of the Corporation; or
(ii) Any information acquired:
(A) When the subject of the request is currently a Corporation
employee or was a Corporation employee; or
(B) As part of the performance of the person's duties or by virtue
of the person's position.
(b) Sections 1201.3 through 1201.10 do not apply to:
(1) Testimony or records provided in accordance with the Office of
Personnel Management regulations implementing 5 U.S.C. 6322.
(2) Requests for, and release of, records under the Freedom of
Information Act, 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a.
(3) Disclosures to the Office of Inspector General or requests by
the Office of Inspector General for official information or records.
(c) The procedures in this part apply to Corporation employees and
official
[[Page 8]]
information within the Corporation Office of Inspector General. However,
any determinations or other actions to be made by the General Counsel
under this part, relating to employees or official information within
the Office of Inspector General, shall be made by the Inspector General.
[63 FR 4598, Jan. 30, 1998, as amended at 63 FR 64199, Nov. 19, 1998]
Sec. 1201.3 Service of summonses and complaints.
(a) Only the Corporation's General Counsel or his/her designee
(hereinafter ``General Counsel''), is authorized to receive and accept
summonses or complaints sought to be served upon the Corporation or its
employees. All such documents should be delivered or addressed to
General Counsel, Corporation for National and Community Service, 1201
New York Avenue, NW., Suite 8200, Washington, DC 20525.
(b) In the event any summons or complaint is delivered to a
Corporation Employee other than in the manner specified in this part,
such attempted service shall be ineffective, and the recipient thereof
shall either decline to accept the proffered service or return such
document under cover of a written communication that refers the person
attempting to effect service to the procedures set forth in this part.
(c) Except as otherwise provided in Sec. 1201.4(c), the Corporation
is not an authorized agent for service of process with respect to civil
litigation against Corporation Employees purely in their personal, non-
official capacity. Copies of summonses or complaints directed to
Corporation Employees in connection with legal proceedings arising out
of the performance of official duties may, however, be served upon the
General Counsel.
Sec. 1201.4 Service of subpoenas, court orders, and other demands or requests
for official information or action.
(a) Except in cases in which the Corporation is represented by legal
counsel who have entered an appearance or otherwise given notice of
their representation, only the General Counsel is authorized to receive
and accept subpoenas, or other demands or requests directed to any
component of the Corporation or Corporation Employees, whether civil or
criminal in nature, for:
(1) Material, including documents, contained in the files of the
Corporation;
(2) Information, including testimony, affidavits, declarations,
admissions, response to interrogatories, or informal statements,
relating to material contained in the files of the Corporation or which
any Corporation employee acquired in the course and scope of the
performance of official duties;
(3) Garnishment or attachment of compensation of Corporation
Employees; or
(4) The performance or non-performance of any official Corporation
duty.
(b) In the event that any subpoena, demand, or request is sought to
be delivered to a Corporation Employee other than in the manner
prescribed in paragraph (a) of this section, such attempted service
shall be ineffective. Such Corporation Employee shall, after
consultation with the General Counsel, decline to accept the subpoena,
and demand or request the return of it under cover of a written
communication referring to the procedures prescribed in this part.
(c) Except as otherwise provided in this part, the Corporation is
not an agent for service or otherwise authorized to accept on behalf of
Corporation Employees any subpoenas, show-cause orders, or similar
compulsory process of federal or state courts, or requests from private
individuals or attorneys, which are not related to the employees'
official duties except upon the express, written authorization of the
individual Corporation Employee to whom such demand or request is
directed.
(d) Acceptance of such documents by the General Counsel does not
constitute a waiver of any defenses that might otherwise exist with
respect to service under the Federal Rules of Civil or Criminal
Procedure at 28 U.S.C. Appendix, Rules 4-6 or 18 USC Appendix or other
applicable rules.
[[Page 9]]
Sec. 1201.5 Testimony and production of documents prohibited unless approved
by appropriate Corporation officials.
(a) Unless authorized to do so by the General Counsel, no
Corporation Employee shall, in response to a demand or request in
connection with any litigation, whether criminal or civil, provide oral
or written testimony by deposition, declaration, affidavit, or otherwise
concerning any information acquired:
(1) While such person was a Corporation Employee;
(2) As part of the performance of that person's official duties; or
(3) By virtue of that person's official status.
(b) No Corporation Employee shall, in response to a demand or
request in connection with any litigation, produce for use at such
proceedings any document or any other material acquired as part of the
performance of that individual's duties or by virtue of that
individual's official status, unless authorized to do so by the General
Counsel.
Sec. 1201.6 Procedure when testimony or production of documents is sought.
(a) If Official Information is sought, either through testimony or
otherwise, the party seeking such information must (except as otherwise
required by federal law or authorized by the General Counsel) set forth
in writing with as much specificity as possible, the nature and
relevance of the Official Information sought. The party must identify
the record or reasonably describe it in terms of date, format, subject
matter, the offices originating or receiving the record, and the names
of all persons to whom the record is known to relate. Corporation
Employees may produce, disclose, release, comment upon, or testify
concerning only those matters that were specified in writing and
properly approved by the General Counsel. The General Counsel may waive
this requirement in appropriate circumstances.
(b) To the extent it deems necessary or appropriate, the Corporation
may also require from the party seeking such testimony or documents a
schedule of all reasonably foreseeable demands, including but not
limited to the names of all current and former Corporation Employees
from whom discovery will be sought, areas of inquiry, expected duration
of proceedings requiring oral testimony, and identification of
potentially relevant documents.
(c) The General Counsel will notify the Corporation Employee and
such other persons as circumstances may warrant of the decision
regarding compliance with the request or demand.
(d) The General Counsel will consult with the Department of Justice
regarding legal representation for Corporation Employees in appropriate
cases.
Sec. 1201.7 Procedure when response to demand is required prior to receiving
instructions.
(a) If a response to a demand or request for Official Information
pursuant to litigation is required before the General Counsel renders a
decision, the Corporation will request that either a Department of
Justice attorney or a Corporation attorney designated for the purpose:
(1) Appear, if feasible, with the employee upon whom the demand has
been made;
(2) Furnish the court or other authority with a copy of the
regulations contained in this part;
(3) Inform the court or other authority that the demand or request
has been or is being, as the case may be, referred for the prompt
consideration of the General Counsel; and
(4) Respectfully request the court or authority to stay the demand
or request pending receipt of the requested instructions.
(b) In the event that an immediate demand or request for production
or disclosure is made in circumstances that would preclude the proper
designation or appearance of a Department of Justice or Corporation
attorney on behalf of the Corporation employee, the Corporation Employee
shall respectfully request the court or other authority for a reasonable
stay of proceedings for the purpose of obtaining instructions from the
Corporation.
[[Page 10]]
Sec. 1201.8 Procedure in the event of an adverse ruling.
If the court or other authority declines to stay the effect of the
demand or request in response to a request made pursuant to Sec.
1201.7, or if the court or other authority rules that the demand or
request must be complied with irrespective of the Corporation's
instructions not to produce the material or disclose the information
sought, the Corporation Employee upon whom the demand or request has
been made shall, if so directed by the General Counsel, respectfully
decline to comply with the demand or request, citing United States ex
rel. Touhy v. Ragen, 340 U.S. 462 (1951), and the regulations in this
part.
Sec. 1201.9 Considerations in determining whether the Corporation will comply
with a demand or request.
(a) In deciding whether to comply with a demand or request,
Corporation officials and attorneys are encouraged to consider:
(1) Whether such compliance would be unduly burdensome or otherwise
inappropriate under the applicable rules of discovery or the rules of
procedure governing the case or matter in which the demand arose;
(2) Whether compliance is appropriate under the relevant substantive
law concerning privilege or disclosure of information;
(3) The public interest;
(4) The need to conserve the time of Corporation Employees for the
conduct of official business;
(5) The need to avoid spending the time and money of the United
States for private purposes;
(6) The need to maintain impartiality between private litigants in
cases where a government interest is not implicated;
(7) Whether compliance would have an adverse effect on performance
by the Corporation of its mission and duties; and
(8) The need to avoid involving the Corporation in controversial
issues not related to its mission.
(b) Among those demands and requests in response to which compliance
may not ordinarily be authorized are those when compliance would:
(1) Violate a statute, a rule of procedure, a specific regulation,
or an executive order;
(2) Reveal information properly classified in the interest of
national security;
(3) Reveal confidential commercial or financial information or trade
secrets without the owner's consent;
(4) Reveal the internal deliberative processes of the Executive
Branch; or
(5) Potentially impede or prejudice an ongoing law enforcement
investigation.
Sec. 1201.10 Prohibition on providing expert or opinion testimony.
(a) Except as provided in this section, Corporation Employees shall
not provide opinion or expert testimony based upon information that they
acquired in the scope and performance of their official Corporation
duties, except on behalf of the United States or a party represented by
the Department of Justice.
(b) Upon a showing by the requester of exceptional need or unique
circumstances and that the anticipated testimony will not be adverse to
the interests of the United States, the General Counsel, in the exercise
of discretion, may grant special, written authorization for Corporation
Employees to appear and testify as expert witnesses at no expense to the
United States.
(c) If, despite the final determination of the General Counsel, a
court of competent jurisdiction or other appropriate authority orders
the appearance and expert or opinion testimony of a Corporation Employee
such individual shall immediately inform the General Counsel of such
order. If the General Counsel determines that no further legal review of
or challenge to the court's order will be made, the Corporation Employee
shall comply with the order. If so directed by the General Counsel,
however, the individual shall respectfully decline to testify.
Sec. 1201.11 Authority.
The Corporation receives authority to change its governing
regulations from the National and Community Service Act of 1990 as
amended (42 U.S.C. 12501 et seq.).
[[Page 11]]
PART 1203_NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS_EFFECTUATION OF
TITLE VI OF THE CIVIL RIGHTS ACT OF 1964--Table of Contents
Sec.
1203.1 Purpose.
1203.2 Application of this part.
1203.3 Definitions.
1203.4 Discrimination prohibited.
1203.5 Assurances required.
1203.6 Compliance information.
1203.7 Conduct of investigations.
1203.8 Procedure for effecting compliance.
1203.9 Hearings.
1203.10 Decisions and notices.
1203.11 Judicial review.
1203.12 Effect on other regulations, forms, and instructions.
Appendix A to Part 1203--Programs to Which This Part Applies
Appendix B to Part 1203--Programs to Which This Part Applies When a
Primary Objective of the Federal Financial Assistance Is To
Provide Employment
Authority: Sec. 602, 78 Stat. 252; 42 U.S.C. 2000d-1.
Source: 39 FR 27322, July 26, 1974, unless otherwise noted.
Sec. 1203.1 Purpose.
The purpose of this part is to effectuate the provisions of title VI
of the Civil Rights Act of 1964 (hereafter referred to as title VI), to
the end that a person in the United States shall not, 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 a program or activity receiving Federal financial assistance from
ACTION.
Sec. 1203.2 Application of this part.
(a) This part applies to each program for which Federal financial
assistance is authorized under a law administered by ACTION, including
the types of Federal financial assistance listed in appendix A to this
part. It also applies to money paid, property transferred, or other
Federal financial assistance extended after the effective date of this
part pursuant to an application approved before that effective date.
This part does not apply to:
(1) Federal financial assistance by way of insurance or guaranty
contracts;
(2) Money paid, property transferred, or other assistance extended
before the effective date of this part, except when the assistance was
subject to the title VI regulations of an agency whose responsibilities
are now exercised by ACTION;
(3) Assistance to any individual who is the ultimate beneficiary; or
(4) Employment practices, under a program, of an employer,
employment agency, or labor organization, except to the extent described
in Sec. 1203.4(c).
The fact that a type of Federal financial assistance is not listed in
Appendix A to this part does not mean, if title VI is otherwise
applicable, that a program is not covered. Other types of Federal
financial assistance under statutes now in force or hereinafter enacted
may be added to Appendix A to this part.
(b) In a program receiving Federal financial assistance in the form,
or for the acquisition, of real property or an interest in real
property, to the extent that rights to space on, over, or under that
property are included, the nondiscrimination requirement of this part
extends to a facility located wholly or in part in that space.
[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]
Sec. 1203.3 Definitions.
Unless the context requires otherwise, in this part:
(a) Applicant means a person who submits an application, request, or
plan required to be approved by ACTION, or by a primary recipient, as a
condition to eligibility for Federal financial assistance, and
``application'' means that application, request, or plan.
(b) Facility includes all or any part 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.
(c) 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;
[[Page 12]]
(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 the
property without consideration or at a nominal consideration, or at a
consideration which is reduced for the purpose of assisting the
recipient, or in recognition of the public interest to be served by the
sale or lease to the recipient; and
(5) A Federal agreement, arrangement, or other contract which has as
one of its purposes the provision of assistance.
(d) Primary recipient means a recipient that is authorized or
required to extend Federal financial assistance to another recipient.
(e) Program or activity and program mean all of the operations of
any entity described in paragraphs (e)(1) through (4) of this section,
any part of which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(ii) 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;
(2)(i) A college, university, or other postsecondary institution, or
a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities described in paragraph (e)(1), (2), or (3) of this section.
(f) Recipient may mean any State, the District of Columbia, the
Commonwealth of Puerto Rico, a territory or possession of the United
States, or any political subdivision thereof, or instrumentality
thereof, any public or private agency, institution, or organization, or
other entity, or any individual in any State, the District of Columbia,
the Commonwealth of Puerto Rico, or territory or possession of the
United States, to whom Federal financial assistance is extended,
directly or through another recipient, including any successor,
assignee, or transferee thereof, but the term does not include any
ultimate beneficiary.
(g) Director means the Director of ACTION or any person to whom he
has delegated his authority in the matter concerned.
[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]
Sec. 1203.4 Discrimination prohibited.
(a) General. A person in the United States shall not, 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, a program to which this part applies.
(b) Specific discriminatory actions prohibited. (1) A recipient to
which this part applies may not, directly or through contractual or
other arrangements, on the ground of race, color, or national origin--
(i) Deny a person a service, financial aid, or other benefit
provided under the program;
(ii) Provide a service, financial aid, or other benefit to a person
which is different, or is provided in a different manner, from that
provided to others under the program;
(iii) Subject a person to segregation or separate treatment in any
matter related to his receipt of a service, financial aid, or other
benefit under the program;
(iv) Restrict a person in any way in the enjoyment of an advantage
or
[[Page 13]]
privilege enjoyed by others receiving a service, financial aid, or other
benefit under the program;
(v) Treat a person differently from others in determining whether he
satisfies an admission, enrollment, quota, eligibility, membership, or
other requirement or condition which persons must meet in order to be
provided a service, financial aid, or other benefit provided under the
program;
(vi) Deny a person 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; or
(vii) Deny a person the opportunity to participate as a member of a
planning or advisory body which is an integral part of the program.
(2) A recipient, in determining the types of services, financial
aid, or other benefits, or facilities which will be provided under a
program or the class of persons to whom, or the situations in which, the
services, financial aid, other benefits, or facilities will be provided
under a program, or the class of persons to be afforded an opportunity
to participate in a program, may not, directly or through contractual or
other arrangements, utilize criteria or methods of administration which
have the effect of subjecting persons 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
with respect to individuals of a particular race, color, or national
origin.
(3) The enumeration of specific forms of prohibited discrimination
in this paragraph does not limit the generality of the prohibition in
paragraph (a) of this section.
(4)(i) In administering a program regarding which the recipient had
previously discriminated against persons on the ground of race, color,
or national origin, the recipient shall take affirmative action to
overcome the effects of prior discrimination.
(ii) Even in the absence of prior discrimination a recipient in
administering a program may take affirmative action to overcome the
effect of conditions which resulted in limiting participation by persons
of a particular race, color, or national origin.
(c) Employment practices. (1) When a primary objective of the
Federal financial assistance to which this part applies is to provide
employment, a recipient or other party subject to this part shall not,
directly or through contractual or other arrangements, subject a person
to discrimination on the ground of race, color, or national origin in
its employment practices under the program (including recruitment or
recruitment advertising, hiring, firing, upgrading, promotion, demotion,
transfer, layoff, termination, rates of pay, or other forms of
compensation or benefits, selection for training or apprenticeship, use
of facilities, and treatment of employees). A recipient shall take
affirmative action to insure that applicants are employed, and employees
are treated during employment, without regard to race, color, or
national origin. The requirements applicable to construction employment
under a program are those specified in or pursuant to part III of
Executive Order 11246 or any Executive order which supersedes it.
(2) Federal financial assistance to programs under laws funded or
administered by ACTION which have as a primary objective the providing
of employment include those set forth in Appendix B to this part.
(3) 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
tends, on the ground of race, color, or national origin, to exclude
persons from participation in, to deny them the benefits of, or to
subject them to discrimination under any program to which this part
applies, the provisions of paragraph (c)(1) of this section apply to the
employment practices of the recipient to the extent necessary to assure
equality of opportunity to and nondiscriminatory treatment of
beneficiaries.
(d) In determining the site or location of facilities, a recipient
or applicant may not make selections with the purpose or effect of
excluding individuals from, denying them the benefits
[[Page 14]]
of, or subjecting them to discrimination under, a program to which this
part 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 title VI of this part.
[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]
Sec. 1203.5 Assurances required.
(a) General. (1) An application for Federal financial assistance to
which this part applies, except an application to which paragraph (d) of
this section applies, and every application for Federal financial
assistance to provide a facility shall, as a condition to its approval
and the extension of Federal financial assistance pursuant to the
application, contain or be accompanied by, assurances that the program
will be conducted or the facility operated in compliance with the
requirements imposed by or pursuant to this part. Every award of Federal
financial assistance shall require the submission of these assurances.
In the case where the Federal financial assistance is to provide or is
in the form of personal property, or real property or interest therein
or structures thereon, the assurances shall obligate the recipient, or,
in the case of a subsequent transfer, the transferee, for the period
during which the 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, or for as long as the
recipient retains ownership or possession of the property, whichever is
longer. In other cases, the assurances obligate the recipient for the
period during which the Federal financial assistance is extended to the
program. In the case where the assistance is sought for the construction
of a facility or part of a facility, the assurances shall extend to the
entire facility and to the facilities operated in connection therewith.
ACTION shall specify the form of the foregoing assurances and the extent
to which like assurances will be required of subgrantees, contractors
and subcontractors, transferees, successors in interest, and other
participants. The assurances shall include provisions which give the
United States the right to seek judicial enforcement.
(2) When Federal financial assistance is provided in the form of a
transfer of real property, structures, or improvements thereon, 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 involving the provision of similar services or
benefits. When no transfer of property of interest therein from the
Federal Government is involved, but property is acquired or improved
with Federal financial assistance, the recipient shall agree to include
a covenant in any subsequent transfer of the property. When the property
is obtained from the Federal Government, the covenant may also include a
condition coupled with a right to be reserved by ACTION to revert title
to the property in the event of a breach of the covenant where, in the
discretion of ACTION, such a condition and right of reverter is
appropriate to the statute under which the real property is obtained and
to the nature of the grant and the grantee. In the event 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 property for the purposes for which the
property was transferred, ACTION may agree, on request of the transferee
and if necessary to accomplish the financing, and on conditions as he
deems appropriate, to subordinate a right of reversion to the lien of a
mortgage or other encumbrance.
(b) Assurances from Government agencies. In the case of an
application from a department, agency, or office of a State or local
government for Federal financial assistance for a specified purpose, the
assurance required by this section shall extend to any other department,
agency, or office of the same governmental unit if the policies of the
other department, agency, or office will substantially affect the
project for which Federal financial assistance is requested.
[[Page 15]]
(c) Assurance from academic and other institutions. (1) In the case
of an application for Federal financial assistance by an academic
institution, the assurance required by this section extends to admission
practices and to all other practices relating to the treatment of
students.
(2) The assurance required by an academic institution, detention or
correctional facility, or any other institution or facility, relating to
the institution's practices with respect to admission or other treatment
of individuals as students, patients, wards, inmates, persons subject to
control, or clients of the institution or facility or to the opportunity
to participate in the provision of services, disposition, treatment, or
benefits to these individuals, is applicable to the entire institution
or facility.
(d) Continuing Federal financial assistance. Every application by a
State or a State agency for continuing Federal financial assistance to
which this part applies (including the types of Federal financial
assistance listed in Appendix A to this part) shall as a condition to
its approval and the extension of Federal financial assistance pursuant
to the application:
(1) 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
the requirements imposed by or pursuant to this part, and
(2) Provide or be accompanied by provision for methods of
administration for the program as are found by ACTION to give reasonable
guarantee that the applicant and all recipients of Federal financial
assistance under the program will comply with the requirements imposed
by or pursuant to this part.
(Approved by the Office of Management and Budget under control number
3001-0016, paragraph (a)(1))
[39 FR 27322, July 26, 1974, as amended at 47 FR 3553, Jan. 26, 1982; 68
FR 51387, Aug. 26, 2003]
Sec. 1203.6 Compliance information.
(a) Cooperation and assistance. ACTION, to the fullest extent
practicable, shall seek the cooperation of recipients in obtaining
compliance with this part and shall provide assistance and guidance to
recipients to help them comply voluntarily with this part.
(b) Compliance reports. Each recipient shall keep records and submit
to ACTION timely, complete, and accurate compliance reports at the
times, and in the form and containing the information ACTION may
determine necessary to enable it to ascertain whether the recipient has
complied or is complying with this part. In the case in which a primary
recipient extends Federal financial assistance to other recipients, the
other recipients shall also submit compliance reports to the primary
recipient as may be necessary to enable the primary recipient to carry
out its obligations under this part. In general, recipients should have
available for ACTION racial and ethnic data showing the extent to which
members of minority groups are beneficiaries of federally assisted
programs.
(c) Access to sources of information. Each recipient shall permit
access by ACTION during normal business hours to its books, records,
accounts, and other sources of information, and its facilities as may be
pertinent to ascertain compliance with this part. When information
required of a recipient is in the exclusive possession of an other
agency, institution, or person and this agency, institution, or person
fails or refuses 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.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons the information regarding the provisions of this part
and its applicability to the program for which the recipient received
Federal financial assistance, and make this information available to
them in the manner, as ACTION finds necessary, to apprise the persons of
the protections against discrimination assured them by title VI and this
part.
[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]
Sec. 1203.7 Conduct of investigations.
(a) Periodic compliance reviews. ACTION may from time to time review
the practices of recipients to determine
[[Page 16]]
whether they are complying with this part.
(b) Complaints. Any person who believes himself or any specific
class of persons to be subjected to discrimination prohibited by this
part may by himself or by a representative file with ACTION a written
complaint. A complaint shall be filed not later than 180 days after the
date of the alleged discrimination, unless the time for filing is
extended by ACTION.
(c) Investigations. ACTION will make a prompt investigation whenever
a compliance review, report, complaint, or other information indicates a
possible failure to comply with this part. The investigation will
include, when appropriate, a review of the pertinent practices and
policies of the recipient, the circumstances under which the possible
noncompliance with this part occurred, and other factors relevant to a
determination as to whether the recipient has failed to comply with this
part.
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
part, ACTION will so inform the recipient and the matter will be
resolved by voluntary means whenever possible. If it has been determined
that the matter cannot be resolved by voluntary means, action will be
taken as provided for in Sec. 1203.8.
(2) If an investigation does not warrant action pursuant to
paragraph (d)(1) of this section, ACTION will so inform, in writing, the
recipient and the complainant, if any.
(e) Intimidatory or retaliatory acts prohibited. A recipient or
other person shall not intimidate, threaten, coerce, or discriminate
against an individual for the purpose of interfering with a right or
privilege secured by section 601 of title VI of this part, or because he
has made a complaint, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this part. The
identity of complainants shall be kept confidential, except to the
extent necessary to carry out the purposes of this part, including the
conduct of an investigation, hearing, or judicial proceeding arising
thereunder.
Sec. 1203.8 Procedure for effecting compliance.
(a) General. (1) If there appears to be a failure or threatened
failure to comply with this part, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part may be effected by the suspension or termination of or refusal
to grant or to continue Federal financial assistance or by other means
authorized by law.
(2) Other means may include, but are not limited to:
(i) A reference to the Department of Justice with a recommendation
that appropriate proceedings be brought to enforce the rights of the
United States under a law of the United States (including other titles
of the Civil Rights Act of 1964) or an assurance or other contractual
undertaking, and
(ii) An applicable proceeding under State or local law.
(b) Noncompliance with Sec. 1203.5. If an applicant fails or
refuses to furnish an assurance required under Sec. 1203.5 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 paragraph (c) of this section. ACTION shall not
be required to provide assistance in that case during the pendency of
the administrative proceedings under this paragraph. Subject, however,
to Sec. 1203.12, ACTION shall continue assistance during the pendency
of the proceedings where the assistance is due and payable pursuant to
an application approved prior to the effective date of this part.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. An order suspending, terminating, or refusing to
grant or to continue Federal financial assistance shall not become
effective until--
(1) ACTION has advised the applicant or recipient of his failure to
comply and has determined that compliance cannot be secured by informal
voluntary means;
(2) 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 part;
[[Page 17]]
(3) The action has been approved by the Director pursuant to Sec.
1203.10(e); and
(4) The expiration of 30 days after the Director 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 the action.
An action to suspend or terminate or 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 a finding has been made and shall be limited in its effect to the
particular program, or part thereof, in which the noncompliance has been
so found.
(d) Other means authorized by law. An action to effect compliance
with title VI by other means authorized by law shall not be taken by
ACTION until--
(1) ACTION has determined that compliance cannot be secured by
voluntary means;
(2) The recipient or other person has been notified of its failure
to comply and of the action to be taken to effect compliance; and
(3) The expiration of at least 10 days from the mailing of a notice
to the recipient or person. During this period of at least 10 days,
additional efforts shall be made to persuade the recipient or other
person to comply with the regulation and to take corrective action as
may be appropriate.
Sec. 1203.9 Hearings.
(a) Opportunity for hearing. When an opportunity for a hearing is
required by Sec. 1203.8(c), 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:
(1) Fix a date not less than 20 days after the date of notice within
which the applicant or recipient may request of ACTION that the matter
be scheduled for hearing; or
(2) Advise the applicant or recipient that the matter in question
has been set down for hearing at a stated time and place. The time and
place so fixed shall be reasonable and 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 paragraph or to
appear at a hearing for which a date has been set is deemed to be a
waiver of the right to a hearing under section 602 of title VI and Sec.
1203.8(c) and consent to the making of a decision on the basis of the
information available.
(b) Time and place of hearing. Hearings shall be held at the offices
of ACTION in Washington, DC, at a time fixed by ACTION unless it
determines that the convenience of the applicant or recipient or of
ACTION requires that another place be selected. Hearings shall be held
before the Director, or at his discretion, before a hearing examiner
appointed in accordance with section 3105 of title 5, United States
Code, or detailed under section 3344 of title 5, United States Code.
(c) Right to counsel. In all proceedings under this section, the
applicant or recipient and ACTION have the right to be represented by
counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and
an administrative review thereof shall be conducted in conformity with
sections 554 through 557 of title 5, United States Code, and in
accordance with the 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 ACTION and the
applicant or recipient are entitled to introduce relevant 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 hearing.
(2) Technical rules of evidence do not apply to hearings conducted
pursuant
[[Page 18]]
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 determined reasonably necessary
by the officer conducting the hearing. The hearing officer may exclude
irrelevant, immaterial, or unduly repetitious evidence. 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. Decisions shall be based on the
hearing record and written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more Federal statutes, authorities, or other
means by which Federal financial assistance is extended and 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, ACTION may, by agreement with the other departments or agencies,
when applicable, provide for the conduct of consolidated or joint
hearings, and for the application to these hearings of rules or
procedures not inconsistent with this part. Final decisions in these
cases, insofar as this regulation is concerned, shall be made in
accordance with Sec. 1203.10.
[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]
Sec. 1203.10 Decisions and notices.
(a) Procedure on decisions by hearing examiner. If the hearing is
held by a hearing examiner, the 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 Director
for a final decision, and a copy of the initial decision or
certification shall be mailed to the applicant or recipient. When the
initial decision is made by the hearing examiner, the applicant or
recipient may, within 30 days after the mailing of a notice of initial
decision, file with the Director his exceptions to the initial decision,
with his reasons therefor. In the absence of exceptions, the Director
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.
On the filing of the exceptions or of notice of review, the Director
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, subject to paragraph (e) of this
section, shall constitute the final decision of the Director.
(b) Decisions on record or review by the Director. When a record is
certified to the Director for decision or the Director reviews the
decision of a hearing examiner pursuant to paragraph (a) of this
section, or when the Director conducts the hearing, the applicant or
recipient shall be given reasonable opportunity to file with it briefs
or other written statements of the recipient's contentions, and a
written copy of the final decision of the Director will be sent to the
applicant or recipient and to the complainant, if any.
(c) Decisions on record where a hearing is waived. When a hearing is
waived pursuant to Sec. 1203.9, a decision shall be made by ACTION on
the record and a written copy of the decision shall be sent to the
applicant or recipient, and to the complainant, if any.
(d) Rulings required. Each decision of a hearing examiner or the
Director shall set forth a ruling on each finding, 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) Approval by ACTION. A final decision by an official of ACTION
other than by the Director, 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
part or title VI, shall
[[Page 19]]
promptly be transmitted to the Director, who may approve the decision,
vacate it, or remit or mitigate a sanction imposed.
(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 the terms, conditions, and other provisions as are
consistent with and will effectuate the purposes of title VI and this
part, including provisions designed to assure that Federal financial
assistance to which this regulation applies will not thereafter be
extended to the applicant or recipient determined by the decision to be
in default in its performance of an assurance given by it under this
part, or to have otherwise failed to comply with this part, unless and
until it corrects its noncompliance and satisfies ACTION that it will
fully comply with this part.
(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 the
order for eligibility, or if it brings itself into compliance with this
part and provides reasonable assurance that it will fully comply with
this part.
(2) An applicant or recipient adversely affected by an order entered
pursuant to paragraph (f) of this section may at any time request ACTION
to restore fully its eligibility to receive Federal financial
assistance. A request shall be supported by information showing that the
applicant or recipient has met the requirements of paragraph (g)(1) of
this section. If ACTION determines that those requirements have been
satisfied, it shall restore the eligibility.
(3) If ACTION denies a request, the applicant or recipient may
submit a request for a hearing in writing, specifying why it believes
ACTION is in error. The applicant or recipient shall be given an
expeditious hearing, with a decision on the record in accordance with
the rules or procedures issued by ACTION. The applicant or recipient
shall be restored to eligibility if it proves at the hearing that it
satisfied the requirements of paragraph (g)(1) of this section. While
proceedings under this paragraph are pending, the sanctions imposed by
the order issued under paragraph (f) of this section remain in effect.
[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]
Sec. 1203.11 Judicial review.
Action taken pursuant to section 602 of title VI is subject to
judicial review as provided in section 603 of title VI.
Sec. 1203.12 Effect on other regulations, forms, and instructions.
(a) Effect on other regulations. Regulations, orders, or like
directions issued before the effective date of this part by ACTION which
impose requirements designed to prohibit discrimination against
individuals on the ground of race, color, or national origin to which
this part applies, and which authorizes the suspension or termination of
or refusal to grant or to continue Federal financial assistance to an
applicant for or recipient of assistance under a program for failure to
comply with the requirements, are superseded to the extent that
discrimination is prohibited by this part, except that nothing in this
part relieves a person of an obligation assumed or imposed under a
superseded regulation, order, instruction, or like direction, before the
effective date of this part. This part does not supersede any of the
following (including future amendments thereof):
(1) Executive Order 11246 (3 CFR, 1965 Supp.) and regulations issued
there under or
(2) Any other orders, regulations, or instructions, insofar as these
orders, regulations, or instructions prohibit discrimination on the
ground of race, color, or national origin in a program or situation to
which this part is inapplicable, or prohibit discrimination on any other
ground.
(b) Forms and instructions. ACTION shall issue and promptly make
available to all interested persons forms and detailed instructions and
procedures for effectuating this part as applied to programs to which
this part applies, and for which it is responsible.
[[Page 20]]
(c) Supervision and coordination. ACTION may from time to time
assign to officials of ACTION, or to officials of other departments or
agencies of the Government with the consent of the departments or
agencies, responsibilities in connection with the effectuation of the
purposes of title VI and this part (other than responsibilities for
final decision as provided in Sec. 1203.10), including the achievement
of effective coordination and maximum uniformity within ACTION and
within the executive branch in the application of title VI and this part
to similar programs and in similar situations. An action taken,
determination made, or requirement imposed by an official of another
department or agency acting pursuant to an assignment of responsibility
under this paragraph shall have the same effect as though the action had
been taken by ACTION.
[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]
Sec. Appendix A to Part 1203--Federal Financial Assistance to Which This
Part Applies
1. Grants for the development or operation of retired senior
volunteer programs pursuant to section 601 of the Older Americans Act of
1965, as amended (42 U.S.C. 3044).
2. Grants for the development and operation of foster grandparents
projects pursuant to section 611 of the Older Americans Act of 1965, as
amended (42 U.S.C. 3044b).
Sec. Appendix B to Part 1203--Federal Financial Assistance to Which This
Part Applies When a Primary Objective of the Federal Financial
Assistance Is To Provide Employment
1. Grants for the development or operation of retired senior
volunteer programs pursuant to section 601 of the Older Americans Act of
1965, as amended (42 U.S.C. 3044).
2. Grants for the development and operation of foster grandparents
projects pursuant to section 611 of the Older Americans Act of 1965, as
amended (42 U.S.C. 3044b).
PART 1206_GRANTS AND CONTRACTS_SUSPENSION AND TERMINATION AND DENIAL OF
APPLICATION FOR REFUNDING--Table of Contents
Subpart A_Suspension and Termination of Assistance
Sec.
1206.1-1 Purpose and scope.
1206.1-2 Application of this part.
1206.1-3 Definitions.
1206.1-4 Suspension.
1206.1-5 Termination.
1206.1-6 Time and place of termination hearings.
1206.1-7 Termination hearing procedures.
1206.1-8 Decisions and notices regarding termination.
1206.1-9 Right to counsel; travel expenses.
1206.1-10 Modification of procedures by consent.
1206.1-11 Other remedies.
Subpart B_Denial of Application for Refunding
1206.2-1 Applicability of this subpart.
1206.2-2 Purpose.
1206.2-3 Definitions.
1206.2-4 Procedures.
1206.2-5 Right to counsel.
Authority: 42 U.S.C. 5052.
Source: 69 FR 19110, Apr. 12, 2004, unless otherwise noted.
Subpart A_Suspension and Termination of Assistance
Sec. 1206.1-1 Purpose and scope.
(a) This subpart establishes rules and review procedures for the
suspension and termination of assistance of National Senior Service
Corps and AmeriCorps*VISTA grants of assistance provided by the
Corporation for National and Community Service pursuant to sections of
titles I and II of the Domestic Volunteer Service Act of 1973, 87 Stat.
394, Pub. L. 93-113, (hereinafter the DVSA) because a recipient failed
to materially comply with the terms and conditions of any grant or
contract providing assistance under these sections of the DVSA,
including applicable laws, regulations, issued program guidelines,
instructions, grant conditions or approved work programs.
(b) However, this subpart shall not apply to any administrative
action of
[[Page 21]]
the Corporation for National and Community Service based upon any
violation, or alleged violation, of title VI of the Civil Rights Act of
1964 and sections 417(a) and (b) of Pub. L. 93-113 relating to
nondiscrimination. In the case of any such violation or alleged
violation other provisions of this chapter shall apply.
Sec. 1206.1-2 Application of this part.
This subpart applies to programs authorized under titles I and II of
the DVSA.
Sec. 1206.1-3 Definitions.
As used in this subpart--
(a) The term Corporation means the Corporation for National and
Community Service established pursuant to 42 U.S.C. 12651 and includes
each Corporation State Office and Service Center.
(b) The term CEO means the Chief Executive Officer of the
Corporation.
(c) The term responsible Corporation official means the CEO, Chief
Financial Officer, the Director of the National Senior Service Corps
programs, the Director of the AmeriCorps*VISTA program, the appropriate
Service Center Director and any Corporation Headquarters or State office
official who is authorized to make the grant of assistance in question.
In addition to the foregoing officials, in the case of the suspension
proceedings described in Sec. 1206.1-4, the term ``responsible
Corporation official'' shall also include a designee of a Corporation
official who is authorized to make the grant of assistance in question.
(d) The term assistance means assistance under titles I and II of
the DVSA in the form of grants or contracts involving Federal funds for
the administration of which the Directors of the National Senior Service
Corps and AmeriCorps*VISTA have primary responsibility.
(e) The term recipient means a public or private agency, institution
or organization or a State or other political jurisdiction which has
received financial assistance under titles I and II of the DVSA. The
term ``recipient'' does not include individuals who ultimately receive
benefits under any DVSA program of assistance or National Senior Service
Corps volunteers or AmeriCorps*VISTA members participating in any
program.
(f) The term agency means a public or private agency, institution,
or organization or a State or other political jurisdiction with which
the recipient has entered into an arrangement, contract or agreement to
assist in its carrying out of the development, conduct and
administration of all or part of a project assisted under titles I and
II.
(g) The term party in the case of a termination hearing means the
Corporation, the recipient concerned, and any other agency or
organization which has a right or which has been granted permission by
the presiding officer to participate in a hearing concerning termination
of financial assistance to the recipient pursuant to Sec. 1206.1-5(e).
(h) The term termination means any action permanently terminating or
curtailing assistance to all or any part of a program prior to the time
that such assistance is concluded by the grant or contract terms and
conditions, but does not include the refusal to provide new or
additional assistance.
(i) The term suspension means any action temporarily suspending or
curtailing assistance in whole or in part, to all or any part of a
program, prior to the time that such assistance is concluded by the
grant or contract terms and conditions, but does not include the refusal
to provide new or additional assistance.
Sec. 1206.1-4 Suspension.
(a) General. The responsible Corporation official may suspend
financial assistance to a recipient in whole or in part for a material
failure or threatened material failure to comply with any requirement
stated in Sec. 1206.1-1. Such suspension shall be pursuant to notice
and opportunity to show cause why assistance should not be suspended as
provided in paragraph (b) of this section. However, in emergency cases,
where the responsible Corporation official determines summary action is
appropriate, the alternative summary procedure of paragraph (c) of this
section shall be followed.
[[Page 22]]
(b) Suspension on notice. (1) Except as provided in paragraph (c) of
this section, the procedure for suspension shall be on notice of intent
to suspend as hereinafter provided.
(2) The responsible Corporation official shall notify the recipient
by letter or by telegram that the Corporation intends to suspend
assistance in whole or in part unless good cause is shown why assistance
should not be suspended. In such letter or telegram the responsible
Corporation official shall specify the grounds for the proposed
suspension and the proposed effective date of the suspension.
(3) The responsible Corporation official shall also inform the
recipient of its right to submit written material in opposition to the
intended suspension and of its right to request an informal meeting at
which the recipient may respond and attempt to show why such suspension
should not occur. The period of time within which the recipient may
submit such written material or request the informal meeting shall be
established by the responsible Corporation official in the notice of
intent to suspend. However, in no event shall the period of time within
which the recipient must submit written material or request such a
meeting be less than 5 days after the notice of intent to suspend
assistance has been sent. If the recipient requests a meeting, the
responsible Corporation official shall fix a time and place for the
meeting, which shall not be less than 5 days after the recipient's
request is received by the Corporation.
(4) In lieu of the provisions of paragraph (b)(3) of this section
dealing with the right of the recipient to request an informal meeting,
the responsible Corporation official may on his own initiative establish
a time and place for such a meeting and notify the recipient in writing
or by telegram. However, in no event shall such a meeting be scheduled
less than seven days after the notice of intent to suspend assistance is
sent to the recipient.
(5) The responsible Corporation official may in his discretion
extend the period of time or date referred to in the previous paragraphs
of this section and shall notify the recipient in writing or by telegram
of any such extension.
(6) At the time the responsible Corporation official sends the
notification referred to in paragraphs (b) (2), (3), and (4) of this
section to the recipient, he shall also send a copy of it to any agency
whose activities or failures to act have substantially contributed to
the proposed suspension, and shall inform such agency that it is
entitled to submit written material or to participate in the informal
meeting referred to in paragraphs (b) (3) and (4) of this section. In
addition the responsible Corporation official may in his discretion give
such notice to any other agency.
(7) Within 3 days of receipt of the notice referred to in paragraphs
(b) (2), (3), and (4) of this section, the recipient shall send a copy
of such notice and a copy of these regulations to all agencies which
would be financially affected by the proposed suspension action. Any
agency that wishes to submit written material may do so within the time
stated in the notice. Any agency that wishes to participate in the
informal meeting with the responsible Corporation official contemplated
herein may request permission to do so from the responsible Corporation
official, who may in his discretion grant or deny such permission. In
acting upon any such request from an agency, the responsible Corporation
official shall take into account the effect of the proposed suspension
on the particular agency, the extent to which the meeting would become
unduly complicated as a result of granting such permission, and the
extent to which the interests of the agency requesting such permission
appear to be adequately represented by other participants.
(8) In the notice of intent to suspend assistance the responsible
Corporation official shall invite voluntary action to adequately correct
the deficiency which led to the initiation of the suspension proceeding.
(9) The responsible Corporation official shall consider any timely
material presented to him in writing, any material presented to him
during the course of the informal meeting provided for in paragraphs
(b)(3) and (4) of this section as well as any showing that the recipient
has adequately corrected the deficiency which led to the initiation of
[[Page 23]]
suspension proceedings. If after considering the material presented to
him the responsible Corporation official concludes the recipient has
failed to show cause why assistance should not be suspended, he may
suspend assistance in whole or in part and under such terms and
conditions as he shall specify.
(10) Notice of such suspension shall be promptly transmitted to the
recipient and shall become effective upon delivery. Suspension shall not
exceed 30 days unless during such period of time termination proceedings
are initiated in accordance with Sec. 1206.1-5, or unless the
responsible Corporation official and the recipient agree to a
continuation of the suspension for an additional period of time. If
termination proceedings are initiated, the suspension of assistance
shall remain in full force and effect until such proceedings have been
fully concluded.
(11) During a period of suspension no new expenditures shall be made
and no new obligations shall be incurred in connection with the
suspended program except as specifically authorized in writing by the
responsible Corporation official. Expenditures to fulfill legally
enforceable commitments made prior to the notice of suspension, in good
faith and in accordance with the recipient's approved work program, and
not in anticipation of suspension or termination, shall not be
considered new expenditures. However, funds shall not be recognized as
committed solely because the recipient has obligated them by contract or
otherwise to an agency.
Note: Willful misapplication of funds may violate Federal criminal
statutes.
(12) The responsible Corporation official may in his discretion
modify the terms, conditions and nature of the suspension or rescind the
suspension action at any time on his own initiative or upon a showing
satisfactory to him that the recipient had adequately corrected the
deficiency which led to the suspension and that repetition is not
threatened. Suspensions partly or fully rescinded may, in the discretion
of the responsible Corporation official be reimposed with or without
further proceedings: Provided however, That the total time of suspension
may not exceed 30 days unless termination proceedings are initiated in
accordance with Sec. 1206.1-5 or unless the responsible Corporation
official and the recipient agree to a continuation of the suspension for
an additional period of time. If termination proceedings are initiated,
the suspension of assistance shall remain in full force and effect until
such proceedings have been fully concluded.
(c) Summary suspension. (1) The responsible Corporation official may
suspend assistance without the prior notice and opportunity to show
cause provided in paragraph (b) of this section if he determines in his
discretion that immediate suspension is necessary because of a serious
risk of:
(i) Substantial injury to or loss of project funds or property, or
(ii) Violation of a Federal, State or local criminal statute, or
(iii) Violation of section 403 of the DVSA or of Corporation rules,
regulations, guidelines and instructions implementing this section of
the DVSA, and that such risk is sufficiently serious to outweigh the
general policy in favor of advance notice and opportunity to show cause.
(2) Notice of summary suspension shall be given to the recipient by
letter or by telegram, shall become effective upon delivery to the
recipient, and shall specifically advise the recipient of the effective
date of the suspension and the extent, terms, and condition of any
partial suspension. The notice shall also forbid the recipient to make
any new expenditures or incur any new obligations in connection with the
suspended portion of the program. Expenditures to fulfill legally
enforceable commitments made prior to the notice of suspension, in good
faith and in accordance with the recipient's approved work program, and
not in anticipation of suspension or termination, shall not be
considered new expenditures. However, funds shall not be recognized as
committed by a recipient solely because the recipient obligated them by
contract or otherwise to an agency. (See note under paragraph (b)(11) of
this section.)
(3) In the notice of summary suspension the responsible Corporation
official shall advise the recipient that it may request the Corporation
to provide
[[Page 24]]
it with an opportunity to show cause why the summary suspension should
be rescinded. If the recipient requests such an opportunity, the
responsible Corporation official shall immediately inform the recipient
in writing of the specific grounds for the suspension and shall within 7
days after receiving such request from the recipient hold an informal
meeting at which the recipient may show cause why the summary suspension
should be rescinded. Notwithstanding the provisions of this paragraph,
the responsible Corporation official may proceed to initiate termination
proceedings at any time even though assistance to the recipient has been
suspended in whole or in part. In the event that termination proceedings
are initiated, the responsible Corporation official shall nevertheless
afford the recipient, if it so requests, an opportunity to show cause
why suspension should be rescinded pending the outcome of the
termination proceedings.
(4) Copies of the notice of summary suspension shall be furnished by
the recipient to agencies in the same manner as notices of intent to
suspend as set forth in paragraphs (b)(6), (7), and (8) of this section.
Agencies may submit written material to the responsible Corporation
official or to participate in the informal meeting as in the case of
intended suspension proceedings set forth in paragraphs (b)(6) and (7)
of this section.
(5) The effective period of a summary suspension of assistance may
not exceed 30 days unless termination proceedings are initiated in
accordance with Sec. 1206.1-5, or unless the parties agree to a
continuation of summary suspension for an additional period of time, or
unless the recipient, in accordance with paragraph (c)(3) of this
section, requests an opportunity to show cause why the summary
suspension should be rescinded.
(6) If the recipient requests an opportunity to show cause why a
summary suspension action should be rescinded the suspension of
assistance shall continue in effect until the recipient has been
afforded such opportunity and a decision has been made. Such a decision
shall be made within 5 days after the conclusion of the informal meeting
referred to in paragraph (c)(3) of this section. If the responsible
Corporation official concludes, after considering all material submitted
to him, that the recipient has failed to show cause why the suspension
should be rescinded, the responsible Corporation official may continue
the suspension in effect for an additional 7 days: Provided however,
That if termination proceedings are initiated, the summary suspension of
assistance shall remain in full force and effect until all termination
proceedings have been fully concluded.
Sec. 1206.1-5 Termination.
(a) If the responsible Corporation official believes that an alleged
failure to comply with any requirement stated in Sec. 1206.1-1 may be
sufficiently serious to warrant termination of assistance, whether or
not assistance has been suspended, he shall so notify the recipient by
letter or telegram. The notice shall state that there appear to be
grounds which warrant terminating the assistance and shall set forth the
specific reasons therefore. If the reasons result in whole or
substantial part from the activities of an agency other than the
grantee, the notice shall identify that agency. The notice shall also
advise the recipient that the matter has been set down for hearing at a
stated time and place, in accordance with Sec. 1206.1-6. In the
alternative the notice shall advise the recipient of its right to
request a hearing and shall fix a period of time which shall not be less
than 10 days in which the recipient may request such a hearing.
(b) Termination hearings shall be conducted in accordance with the
provision of Sec. Sec. 1206.1-7 and 1206.1-8. They shall be scheduled
for the earliest practicable date, but not later than 30 days after a
recipient has requested such a hearing in writing or by telegram.
Consideration shall be given to a request by a recipient to advance or
postpone the date of a hearing scheduled by the Corporation. Any such
hearing shall afford the recipient a full and fair opportunity to
demonstrate that it is in compliance with requirements specified in
Sec. 1206.1-1. In any termination hearing, the Corporation shall have
the burden of justifying the proposed termination action. However, if
the basis
[[Page 25]]
of the proposed termination is the failure of a recipient to take action
required by law, regulation, or other requirement specified in Sec.
1206.1-1, the recipient shall have the burden of proving that such
action was timely taken.
(c) If a recipient requests the Corporation to hold a hearing in
accordance with paragraph (a) of this section, it shall send a copy of
its request for such a hearing to all agencies which would be
financially affected by the termination of assistance and to each agency
identified in the notice pursuant to paragraph (a) of this section. This
material shall be sent to these agencies at the same time the
recipient's request is made to the Corporation. The recipient shall
promptly send to the Corporation a list of the agencies to which it has
sent such material and the date on which it was sent.
(d) If the responsible Corporation official pursuant to paragraph
(a) of this section informs a recipient that a proposed termination
action has been set for hearing, the recipient shall within 5 days of
its receipt of this notice send a copy of it to all agencies which would
be financially affected by the termination and to each agency identified
in the notice pursuant to paragraph (a) of this section. The recipient
shall send the responsible Corporation official a list of all agencies
notified and the date of notification.
(e) If the responsible Corporation official has initiated
termination proceedings because of the activities of an agency, that
agency may participate in the hearing as a matter of right. Any other
agency, person, or organization that wishes to participate in the
hearing may, in accordance with Sec. 1206.1-7(d), request permission to
do so from the presiding officer of the hearing. Such participation
shall not, without the consent of the Corporation and the recipient,
alter the time limitations for the delivery of papers or other
procedures set forth in this section.
(f) The results of the proceeding and any subsequent measure taken
by the Corporation pursuant to this part shall be fully binding upon the
recipient and all agencies whether or not they actually participated in
the hearing.
(g) A recipient may waive a hearing by notice to the responsible
Corporation official in writing and submit written information and
argument for the record. Such material shall be submitted to the
responsible Corporation official within a reasonable period of time to
be fixed by him upon the request of the recipient. The failure of a
recipient to request a hearing, or to appear at a hearing for which a
date has been set, unless excused for good cause, shall be deemed a
waiver of the right to a hearing and consent to the making of a decision
on the basis of such information as is then in the possession of the
Corporation.
(h) The responsible Corporation official may attempt, either
personally or through a representative, to resolve the issues in dispute
by informal means prior to the date of any applicable hearing.
Sec. 1206.1-6 Time and place of termination hearings.
The termination hearing shall be held in Washington, DC, or in the
appropriate Service Center or Corporation State Office, at a time and
place fixed by the responsible Corporation official unless he determines
that for the convenience of the Corporation, or of the parties or their
representatives, requires that another place be selected.
Sec. 1206.1-7 Termination hearing procedures.
(a) General. The termination hearing, decision, and any review shall
be conducted in accordance with the rules of procedure in this section
and Sec. Sec. 1206.1-8 and 1206.1-9.
(b) Presiding officer. (1) The presiding officer at the hearing
shall be the responsible Corporation official or, at the discretion of
the responsible Corporation official, an independent hearing examiner
designated as promptly as possible in accordance with section 3105 of
title 5 of the United States Code. The presiding officer shall conduct a
full and fair hearing, avoid delay, maintain order, and make a
sufficient record for a full and true disclosure of the facts and
issues. To accomplish these ends, the presiding officer shall have all
powers authorized by law, and he may make all procedural and evidentiary
rulings necessary for the conduct of the hearing. The hearing shall
[[Page 26]]
be open to the public unless the presiding officer for good cause shown
shall otherwise determine.
(2) After the notice described in paragraph (f) of this section is
filed with the presiding officer, he shall not consult any person or
party on a fact in issue unless on written notice and opportunity for
all parties to participate. However, in performing his functions under
this part the presiding officer may use the assistance and advice of an
attorney designated by the General Counsel of the Corporation: Provided,
That the attorney designated to assist him has not represented the
Corporation or any other party or otherwise participated in a
proceeding, recommendation, or decision in the particular matter.
(c) Presentation of evidence. Both the Corporation and the recipient
are entitled to present their case by oral or documentary evidence, to
submit rebuttal evidence and to conduct such examination and cross-
examination as may be required for a full and true disclosure of all
facts bearing on the issues. The issues shall be those stated in the
notice required to be filed by paragraph (f) of this section, those
stipulated in a prehearing conference or those agreed to by the parties.
(d) Participation. (1) In addition to the Corporation, the
recipient, and any agency which has a right to appear, the presiding
officer in his discretion may permit the participation in the
proceedings of such persons or organizations as he deems necessary for a
proper determination of the issues involved. Such participation may be
limited to those issues or activities which the presiding officer
believes will meet the needs of the proceeding, and may be limited to
the filing of written material.
(2) Any person or organization that wishes to participate in a
proceeding may apply for permission to do so from the presiding officer.
This application, which shall be made as soon as possible after the
notice of suspension or proposed termination has been received by the
recipient, shall state the applicant's interest in the proceeding, the
evidence or arguments the applicant intends to contribute, and the
necessity for the introduction of such evidence or arguments.
(3) The presiding officer shall permit or deny such participation
and shall give notice of his decision to the applicant, the recipient,
and the Corporation, and, in the case of denial, a brief statement of
the reasons for his decision: Provided however, That the presiding
officer may subsequently permit such participation if, in his opinion,
it is warranted by subsequent circumstances. If participation is
granted, the presiding officer shall notify all parties of that fact and
may, in appropriate cases, include in the notification a brief statement
of the issues as to which participation is permitted.
(4) Permission to participate to any extent is not a recognition
that the participant has any interest which may be adversely affected or
that the participant may be aggrieved by any decision, but is allowed
solely for the aid and information of the presiding officer.
(e) Filing. All papers and documents which are required to be filed
shall be filed with the presiding officer. Prior to filing, copies shall
be sent to the other parties.
(f) Notice. The responsible Corporation official shall send the
recipient and any other party a written notice which states the time,
place, nature of the hearing, the legal authority and jurisdiction under
which the hearing is to be held. The notice shall also identify with
reasonable specificity the facts relied on as justifying termination and
the Corporation requirements which it is contended the recipient has
violated. The notice shall be filed and served not later than 10 days
prior to the hearing and a copy thereof shall be filed with the
presiding officer.
(g) Notice of intention to appear. The recipient and any other party
which has a right or has been granted permission to participate in the
hearing shall give written confirmation to the Corporation of its
intention to appear at the hearing 3 days before it is scheduled to
occur. Failing to do so may, at the discretion of the presiding officer,
be deemed a waiver of the right to a hearing.
(h) Form and date of service. All papers and documents filed or sent
to party
[[Page 27]]
shall be signed in ink by the appropriate party or his authorized
representative. The date on which papers are filed shall be the day on
which the papers or documents are deposited, postage prepaid in the U.S.
mail, or are delivered in person: Provided however, That the effective
date of the notice that there appear to be grounds which warrant
terminating assistance shall be the date of its delivery or attempted
delivery at the recipient's last known address as reflected in the
records of the Corporation.
(i) Prehearing conferences. Prior to the commencement of a hearing
the presiding officer may, subject to the provisions of paragraph (b)(2)
of this section, require the parties to meet with him or correspond with
him concerning the settlement of any matter which will expedite a quick
and fair conclusion of the hearing.
(j) Evidence. Technical rules of evidence shall not apply to
hearings conducted pursuant to this subpart, but the presiding officer
shall apply rules or principles designed to assure production of
relevant evidence and to subject testimony to such examination and cross
examination as may be required for a full and true disclosure of the
facts. The presiding officer may exclude irrelevant, immaterial, or
unduly repetitious evidence. A transcription shall be made of the oral
evidence and shall be made available to any participant upon payment of
the prescribed costs. All documents and other evidence submitted 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.
(k) Depositions. If the presiding officer determines that the
interests of justice would be served, he may authorize the taking of
depositions provided that all parties are afforded an opportunity to
participate in the taking of the depositions. The party who requested
the deposition shall arrange for a transcript to be made of the
proceedings and shall upon request, and at his expense, furnish all
other parties with copies of the transcript.
(l) Official notice. Official notice may be taken of a public
document, or part of a public document, such as a statute, official
report, decision, opinion or published scientific data issued by any
agency of the Federal Government or a State or local government and such
document or data may be entered on the record without further proof of
authenticity. Official notice may also be taken of such matters as may
be judicially noticed in the courts of the United States, or any other
matter of established fact within the general knowledge of the
Corporation. If the decision of the presiding officer rests on official
notice of a material fact not appearing in evidence, a party shall on
timely request be afforded an opportunity to show the contrary.
(m) Proposed findings and conclusions. After the hearing has
concluded, but before the presiding officer makes his decision, he shall
afford each participant a reasonable opportunity to submit proposed
findings of fact and conclusions. After considering each proposed
finding or conclusion the presiding officer shall state in his decision
whether he has accepted or rejected them in accordance with the
provisions of Sec. 1206.1-8(a).
Sec. 1206.1-8 Decisions and notices regarding termination.
(a) Each decision of a presiding officer shall contain his findings
of fact, and conclusions, and shall state whether he has accepted or
rejected each proposed finding of fact and conclusion submitted by the
parties, pursuant to Sec. 1206.1-7(m). Findings of fact shall be based
only upon evidence submitted to the presiding officer and matters of
which official notice has been taken. The decision shall also specify
the requirement or requirements with which it is found that the
recipient has failed to comply.
(b) The decision of the presiding officer may provide for continued
suspension or termination of assistance to the recipient in whole or in
part, and may contain such terms, conditions, and other provisions as
are consistent with and will effectuate the purposes of the DVSA.
(c) If the hearing is held by an independent hearing examiner rather
than by the responsible Corporation official, he shall make an initial
decision, and a copy of this initial decision shall be
[[Page 28]]
mailed to all parties. Any party may, within 20 days of the mailing of
such initial decision, or such longer period of time as the presiding
officer specifies, file with the responsible Corporation official his
written exceptions to the initial decision and any supporting brief or
statement. Upon the filing of such exceptions, the responsible
Corporation official shall, within 20 days of the mailing of the
exceptions, review the initial decision and issue his own written
decision thereof, including the reasons therefore. The decision of the
responsible Corporation official may increase, modify, approve, vacate,
remit, or mitigate any sanction imposed in the initial decision or may
remand the matter to the presiding officer for further hearing or
consideration.
(d) Whenever a hearing is waived, a decision shall be made by the
responsible Corporation official and a written copy of the final
decision of the responsible Corporation official shall be given to the
recipient.
(e) The recipient may request the CEO to review a final decision by
the responsible Corporation official which provides for the termination
of assistance. Such a request must be made in writing within 15 days
after the recipient has been notified of the decision in question and
must state in detail the reasons for seeking the review. In the event
the recipient requests such a review, the CEO or his designee shall
consider the reasons stated by the recipient for seeking the review and
shall approve, modify, vacate or mitigate any sanction imposed by the
responsible Corporation official or remand the matter to the responsible
Corporation official for further hearing or consideration. The decision
of the responsible Corporation official will be given great weight by
the CEO or his designee during the review. During the course of his
review the CEO or his designee may, but is not required to, hold a
hearing or allow the filing of briefs and arguments. Pending the
decision of the CEO or his designee assistance shall remain suspended
under the terms and conditions specified by the responsible Corporation
official, unless the responsible Corporation official or the CEO or his
designee otherwise determines. Every reasonable effort shall be made to
complete the review by the CEO or his designee within 30 days of receipt
by the CEO of the recipient's request. The CEO or his designee may
however extend this period of time if he determines that additional time
is necessary for an adequate review.
Sec. 1206.1-9 Right to counsel; travel expenses.
In all formal or informal proceedings under this subpart, the
recipient and the Corporation shall have the right to be represented by
counsel or other authorized representatives. If the recipient and any
agency which has a right to participate in an informal meeting pursuant
to Sec. 1206.1-4 or a termination hearing pursuant to Sec. 1206.1-7 do
not have an attorney acting in that capacity as a regular member of the
staff of the organization or a retainer arrangement with an attorney,
the Boards of Directors of such recipient and agency will be authorized
to designate an attorney to represent their organizations at any such
show cause proceeding or termination hearing and to transfer sufficient
funds from the Federal grant monies they have received for the project
to pay the fees, travel, and per diem expenses of such attorney. The
fees for such attorney shall be the reasonable and customary fees for an
attorney practicing in the locality of the attorney. However, such fees
shall not exceed $100 per day without the prior express written approval
of the Corporation. Travel and per diem expenses may be paid to such
attorney only in accordance with the policies set forth in the federal
government travel regulations. The Boards of Directors of the recipient
or any agency which has a right to participate in an informal meeting
pursuant to Sec. 1206.1-4 or a termination hearing pursuant to Sec.
1206.1-7 will also be authorized to designate two persons in addition to
an attorney whose travel and per diem expenses to attend the meeting or
hearing may be paid from Federal grant or contract monies. Such travel
and per diem expenses shall conform to the policies set forth in the
federal government travel regulations.
[[Page 29]]
Sec. 1206.1-10 Modification of procedures by consent.
The responsible Corporation official or the presiding officer of a
termination hearing may alter, eliminate or modify any of the provisions
of this subpart with the consent of the recipient and, in the case of a
termination hearing, with the consent of all agencies that have a right
to participate in the hearing pursuant to Sec. 1206.1-5(e). Such
consent must be in writing or be recorded in the hearing transcript.
Sec. 1206.1-11 Other remedies.
The procedures established by this subpart shall not preclude the
Corporation from pursuing any other remedies authorized by law.
Subpart B_Denial of Application for Refunding
Sec. 1206.2-1 Applicability of this subpart.
This subpart applies to grantees and contractors receiving financial
assistance and to sponsors who receive AmeriCorps*VISTA members under
the DVSA. The procedures in this subpart do not apply to review of
applications for the following:
(a) University Year for VISTA projects which have received federal
funds for five years;
(b) Mini-grants;
(c) Other projects for which specific time limits with respect to
federal assistance are established in the original notice of grant award
or other document providing assistance, where the specified time limit
has been reached; and
(d) AmeriCorps*VISTA project extensions of less than six months.
Sec. 1206.2-2 Purpose.
This subpart establishes rules and review procedures for the denial
of a current recipient's application for refunding.
Sec. 1206.2-3 Definitions.
As used in this subpart--Corporation'', ``CEO'', and ``recipient''
are defined in accordance with Sec. 1206.1-3.
Financial assistance and assistance include the services of National
Senior Service Corps volunteers and AmeriCorps*VISTA members supported
in whole or in part with Corporation funds provided under the DVSA.
Program account means assistance provided by the Corporation to
support a particular program activity; for example, AmeriCorps*VISTA,
Foster Grandparent Program, Senior Companion Program and Retired Senior
Volunteer Program.
Refunding includes renewal of an application for the assignment of
National Senior Service Corps volunteers and AmeriCorps*VISTA members.
Sec. 1206.2-4 Procedures.
(a) The procedures set forth in paragraphs (b) through (g) of this
section applies only where an application for refunding submitted by a
current recipient is rejected or is reduced to 80 percent or less of the
applied-for level of funding or the recipient's current level of
operations, whichever is less. It is further a condition for application
of these procedures that the rejection or reduction be based on
circumstances related to the particular grant or contract. These
procedures do not apply to reductions based on legislative requirements,
or on general policy or in instances where, regardless of a recipient's
current level of operations, its application for refunding is not
reduced by 20 percent or more. The fact that the basis for rejecting an
application may also be a basis for termination under subpart A of this
part shall not prevent the use of this subpart to the exclusion of the
procedures in subpart A.
(b) Before rejecting an application of a recipient for refunding the
Corporation shall notify the recipient of its intention, in writing, at
least 75 days before the end of the recipient's current program year or
grant budget period. The notice shall inform the recipient that a
tentative decision has been made to reject or reduce an application for
refunding. The notice shall state the reasons for the tentative decision
to which the recipient shall address itself if it wishes to make a
presentation as described in paragraphs (c) and (d) of this section.
(c) If the notice of tentative decision is based on any reasons,
other than those described in paragraph (d) of this
[[Page 30]]
section, including, but not limited to, situations in which the
recipient has ineffectively managed Corporation resources or
substantially failed to comply with Corporation policy and overall
objectives under a contract or grant agreement with the Corporation, the
recipient shall be informed in the notice, of the opportunity to submit
written material and to meet informally with a Corporation official to
show cause why its application for refunding should not be rejected or
reduced. If the recipient requests an informal meeting, such meeting
shall be held on a date specified by the Corporation. However, the
meeting may not, without the consent of the recipient, be scheduled
sooner than 14 days, nor more than 30 days, after the Corporation has
mailed the notice to the recipient. If the recipient requests an
informal meeting, the meeting shall be scheduled by the Corporation as
soon as possible after receipt of the request. The official who shall
conduct this meeting shall be a Corporation official who is authorized
to finally approve the refunding in question, or his designee.
(d) If the notice of tentative decision is based upon a specific
charge of failure to comply with the terms and conditions of the grant
or contract, alleging wrongdoing on the part of the recipient, the
notice shall offer the recipient an opportunity for an informal hearing
before a mutually agreed-upon impartial hearing officer. The authority
of such hearing officer shall be limited to conducting the hearing and
offering recommendations. The Corporation will retain all authority to
make the final determination as to whether the application should be
finally rejected or reduced. If the recipient requests an informal
hearing, such hearing shall be held at a date specified by the
Corporation. However, such hearing may not, without the consent of the
recipient, be scheduled sooner than 14 days nor more than 30 days after
the Corporation mails the notice to the recipient.
(e) In the selection of a hearing official and the location of
either an informal meeting or hearing, the Corporation, while mindful of
considerations of the recipient, will take care to insure that costs are
kept to a minimum. The informal meeting or hearing shall be held in the
city or county in which the recipient is located, in the appropriate
Service Center or Corporation State Office, or another appropriate
location. Within the limits stated in the preceding sentence, the
decision as to where the meeting shall be held will be made by the
Corporation, after weighing the convenience factors of the recipient.
For the convenience of the recipient, the Corporation will pay the
reasonable travel expenses for up to two representatives of the
recipient, if requested.
(f) The recipient shall be informed of the final Corporation
decision on refunding and the basis for the decision by the deciding
official.
(g) If the recipient's budget period expires prior to the final
decision by the deciding official, the recipient's authority to continue
program operations shall be extended until such decision is made and
communicated to the recipient. If a National Senior Service Corps
volunteer's or AmeriCorps*VISTA member's term of service expires after
receipt by a sponsor of a tentative decision not to refund a project,
the period of service of the volunteer or member may be similarly
extended. No volunteers or members may be reenrolled for a full 12-month
term, or new volunteers or members enrolled for a period of service
while a tentative decision not to refund is pending. If program
operations are so extended, the Corporation and the recipient shall
provide, subject to the availability of funds, operating funds at the
same levels as in the previous budget period to continue program
operations.
Sec. 1206.2-5 Right to counsel.
In all formal or informal proceedings under this subpart, the
recipient and the Corporation shall have the right to be represented by
counsel or other authorized representatives, at their own expense.
[[Page 31]]
PART 1210_VISTA TRAINEE DESELECTION AND VOLUNTEER EARLY TERMINATION PROCEDURES--Table of Contents
Subpart A_General
Sec.
1210.1-1 Purpose.
1210.1-2 Scope.
1210.1-3 Definitions.
Subpart B_VISTA Trainee Deselection
1210.2-1 Grounds for deselection.
1210.2-2 Procedure for deselection.
Subpart C_VISTA Volunteer Early Termination
1210.3-1 Grounds for termination.
1210.3-2 Removal from project.
1210.3-3 Suspension.
1210.3-4 Initiation of termination.
1210.3-5 Preparation for appeal.
1210.3-6 Appeal of termination.
1210.3-7 Inquiry by Hearing Examiner.
1210.3-8 Termination file and Examiner's report.
1210.3-9 Decision by Director of VISTA.
1210.3-10 Reinstatement of Volunteer.
1210.3-11 Disposition of termination and appeal files.
Subpart D_National Grant Trainees and Volunteers
1210.4 Early termination procedures for National Grant Trainees and
Volunteers.
Appendix A to Part 1210--Standard for Examiners
Authority: Secs. 103(c), 402(14), Pub. L. 93-113, 87 Stat. 397 and
407.
Source: 46 FR 35512, July 9, 1981, unless otherwise noted.
Subpart A_General
Sec. 1210.1-1 Purpose.
This part establishes procedures under which certain Trainees and
Volunteers serving in ACTION programs under Pub. L. 93-113 will be
deselected from training or termininated from service and how they may
appeal their deselection or termination.
Sec. 1210.1-2 Scope.
(a) This part applies to all Trainees and Volunteers enrolled under
part A of Title I of the Domestic Volunteer Service Act of 1973, Pub. L.
93-113, as amended, (42 U.S.C. 4951 et seq.,) (hereinafter the ``Act'')
and full-time Volunteers serving under part C of title I of the Act.
(b) This part does not apply to the medical separation of any
Trainee or Volunteer. Separate procedures, as detailed in the VISTA
Handbook, are applicable for such separations.
Sec. 1210.1-3 Definitions.
(a) Trainee means a person enrolled in a program under part A of
Title I of the Act or for full-time volunteer service under part C of
Title I of the Act who has reported to training but has not yet
completed training and been assigned to a project.
(b) Volunteer means a person enrolled and currently assigned to a
project as a full-time Volunteer under part A of title I of the Act, or
under part C of title I of the Act.
(c) Sponsor means a public or private nonprofit agency to which
ACTION has assigned Volunteers.
(d) Hearing Examiner or Examiner means a person having the
qualifications described in Appendix A who has been appointed to conduct
an inquiry with respect to a termination.
(e) National Grant Program means a program operated under part A,
title I of the Act in which ACTION has awarded a grant to provide the
direct costs of supporting VISTA Volunteers on a national or multi-
regional basis. VISTA Volunteers may be assigned to local offices or
project affiliates. The national grantee provides overall training,
technical assistance and management support for project operations.
(f) Local component means a local office or project affiliate of a
national grantee to which VISTA Volunteers are assigned under the VISTA
National Grants Program.
(g) Termination means the removal of a Volunteer from VISTA service
by ACTION, and does not refer to removal of a Volunteer from a
particular project which has been requested by a sponsor or Governor
under Sec. 1210.3-2.
(h) Deselection means the removal of a Trainee from VISTA service by
ACTION.
[[Page 32]]
Subpart B_VISTA Trainee Deselection
Sec. 1210.2-1 Grounds for deselection.
ACTION may deselect a Trainee out of a training program for any of
the following reasons:
(a) Failure to meet training selection standards which includes, but
is not limited to, the following conduct:
(1) Inability or refusal to perform training assignments;
(2) Disruptive conduct during training sessions;
(b) Conviction of any criminal offense under Federal, State or local
statute or ordinance;
(c) Violation of any provision of the Domestic Volunteer Service Act
of 1973, as amended, or any ACTION policy, regulation, or instruction;
(d) Intentional false statement, omission, fraud, or deception in
obtaining selection as a Volunteer; or
(e) Refusal to accept Volunteer Placement.
Sec. 1210.2-2 Procedure for deselection.
(a) The Regional Director or designee shall notify the Trainee in
writing that ACTION intends to deselect the Trainee. The notice must
contain the reasons for the deselection and indicate that the Trainee
has 5 days to appeal.
(b) The Trainee is placed on Administrative Hold at the time of the
notice of deselection.
(c) The Trainee has 5 days after receipt of the notice to appeal in
writing to the Regional Director, or designee specified in the notice,
furnishing any supportive documentation. In the appeal letter, the
Trainee may request an opportunity to present his or her case in person.
(d) If the Trainee does not respond to the notice, deselection
becomes effective at the expiration of the Trainee's time to appeal.
(e) Within 5 days after receiving the Trainee's appeal, if no
personal presentation is requested, the Regional Director or designee
must issue a decision. If a personal presentation is requested, the
Regional Director or designee must schedule it within 5 days, and must
issue a decision 5 days after such presentation. In either case, the
decision of the Regional Director or designee is final.
Subpart C_VISTA Volunteer Early Termination
Sec. 1210.3-1 Grounds for termination.
ACTION may terminate or suspend a Volunteer based on the Volunteer's
conduct for the following reasons:
(a) Conviction of any criminal offense under Federal, State, or
local statute or ordinance;
(b) Violation of any provision of the Domestic Volunteer Service Act
of 1973, as amended, or any ACTION policy, regulation, or instruction;
(c) Failure refusal or inability to perform prescribed project
duties as outlined in the Project Narrative and/or volunteer assignment
description and as directed by the sponsoring organization to which the
Volunteer is assigned;
(d) Involvement in activities which substantially interfere with the
Volunteer's performance of project duties;
(e) Intentional false statement, omission, fraud, or deception in
obtaining selection as a Volunteer;
(f) Any conduct on the part of the Volunteer which substantially
diminishes his or her effectiveness as a VISTA Volunteer; or
(g) Unsatisfactory performance of Volunteer assignment.
Sec. 1210.3-2 Removal from project.
(a) Removal of a Volunteer from the project assignment may be
requested and obtained by a written request supported by a statement of
reason by:
(1) The Governor or chief executive officer of the State or similar
jurisdiction in which the Volunteer is assigned or,
(2) The sponsoring organization. The sole responsibility for
terminating or transferring a Volunteer rests with the ACTION Agency.
(b) A request for removal of a Volunteer must be submitted to the
ACTION State Director, who will in turn notify the Volunteer of the
request. The State Director, after discussions with the Volunteer and in
consultation with the Regional Director, if necessary, has 15 days to
attempt to resolve the situation with the sponsor or the Governor's
[[Page 33]]
office. If the situation is not resolved at the end of the 15 day
period, the Volunteer will be removed from the project and placed on
Administrative Hold, pending a decision as set forth in paragraph (c) of
this section.
(c) The State office will take one of the following actions
concerning a Volunteer who has been removed from a project assignment:
(1) Accept the Volunteer's resignation;
(2) If removal was requested for reasons other than those listed in
Sec. 1210.3-1, ACTION will attempt to place the Volunteer on another
project. If reassignment is not possible, the Volunteer will be
terminated for lack of suitable assignment, and he or she will be given
special consideration for reinstatement; or
(3) If removal from the project is approved based on any of the
grounds for early termination as set forth in Sec. 1210.3-1, the
Volunteer may appeal the termination grounds as detailed in subpart C of
this part to establish whether such termination is supported by
sufficient evidence. If ACTION determines that the removal based on
grounds detailed in Sec. 1210.3-1 is not established by adequate
evidence, then the procedures outlined in Sec. 1210.3-2(c)(2) will be
followed.
(d) A Volunteer's removal during a term of service may also occur as
a result of either the termination of, or refusal to renew, the
Memorandum of Agreement between ACTION and the sponsoring organization,
or the termination or completion of the initial Volunteer assignment. In
such cases, the Volunteer will be placed in Administrative Hold status
while the Regional Office attempts to reassign the Volunteer to another
project. If no appropriate reassignment within the Region is found
within the Administrative Hold period, the Volunteer will be terminated
but will receive special consideration for reinstatement as soon as an
appropriate assignment becomes available. If appropriate reassignment is
offered the Volunteer and declined, ACTION has no obligation to offer
additional or alternative assignments.
Sec. 1210.3-3 Suspension.
(a) The ACTION State Director may suspend a Volunteer for up to 30
days in order to determine whether sufficient evidence exists to start
termination proceedings against the Volunteer. Suspension is not
warranted if the State Director determines that sufficient grounds
already exist for the initiation of termination. In that event, the
termination procedures contained in Sec. 1210.3-4 will be followed.
(b) Notice of suspension may be written or verbal and is effective
upon delivery to the Volunteer. Within 3 days after initiation of the
suspension, the Volunteer will receive a written notice of suspension
setting forth in specific detail the reason for the suspension. During
the suspension period the Volunteer may not engage in project
activities, but will continue to receive all allowances, including
stipend.
(c) At the end of the suspension period, the Volunteer must either
be reassigned to a project, or termination proceedings must be
initiated.
Sec. 1210.3-4 Initiation of termination.
(a) Opportunity for Resignation. In instances where ACTION has
reason to believe that a Volunteer is subject to termination for any of
the grounds cited in Sec. 1210.3-1, an ACTION staff member will discuss
the matter with the Volunteer. If, after the discussion, the staff
member believes that grounds for termination exist, the Volunteer will
be given an opportunity to resign. If the Volunteer chooses not to
resign, the administrative procedures outlined below will be followed.
(b) Notification of Proposed Termination. The Volunteer will be
notified, in writing by certified mail, of ACTION's intent to terminate
him or her by the ACTION State Director at least 15 days in advance of
the proposed termination date. The letter must give the reasons for
termination, and notify the Volunteer that he or she has 10 days within
which to answer in writing and to furnish any affidavits or written
material. This answer must be submitted to the ACTION State Director or
a designee identified in the notice of proposed termination.
(c) Review and Notice of Decision. (1) Within 5 working days after
the date of
[[Page 34]]
receipt of the Volunteer's answer, the State Director or designee will
send a written Notice of Decision to the Volunteer by certified mail.
(If no answer is received from the Volunteer within the time specified,
the State Director or designee will send such notice within 5 days after
the expiration of the Volunteer's time to answer.)
(2) If the decision is to terminate the Volunteer, the Notice will
set forth the reasons for the decision, the effective date of
termination (which, if the Volunteer has filed an answer, may not be
earlier than 10 days after the date of the Notice of Decision), and the
fact that the Volunteer has 10 days in which to submit a written appeal
to the Regional Director.
(3) A Volunteer who has not filed an answer pursuant to the
procedures outlined above is not entitled to appeal the decision or
request a hearing and may be terminated on the date of the Notice.
(d) Allowances and Project Activities. (1) A Volunteer who files an
answer within the 10 days allowed by Sec. 1210.3-4(b) with the State
Director or designee following receipt of the notice of proposed
termination, will be placed in Administrative Hold status, and may
continue to receive regular allowances, but no stipend, in accordance
with ACTION policy, until the appeal is finally decided. The Volunteer
may not engage in any project related activities during this time.
(2) If the proposed termination is reversed, the Volunteer's stipend
and any other allowances lost during the period of review will be
reinstated retroactively.
Sec. 1210.3-5 Preparation for appeal.
(a) Entitlement to Representation. A Volunteer may be accompanied,
represented and advised by a representative of the Volunteer's own
choice at any stage of the appeal. A person chosen by the Volunteer must
be willing to act as representative and not be disqualified because of
conflict of position.
(b) Time for Preparation and Presentation. (1) A Volunteer's
representative, if a Volunteer or an employee of ACTION, must be given a
reasonable amount of time off from assignment to present the appeal.
(2) ACTION will not pay travel expenses or per diem travel
allowances for either a Volunteer or the Volunteer's representative in
connection with the preparation of the appeal, except to attend the
hearing as provided in Sec. 1210.3-7(c)(5).
(c) Access to Agency Records. (1) A Volunteer is entitled to review
any material in his or her official Volunteer folder and any relevant
Agency documents to the extent permitted by the Privacy Act and the
Freedom of Information Act, (5 U.S.C. 552a; 5 U.S.C. 552). Examples of
documents which may be withheld from Volunteers include references
obtained under a pledge of confidentiality, official Volunteer folders
of other Volunteers and privileged intra-Agency memoranda.
(2) A Volunteer may review relevant documents in the possession of a
sponsor to the same extent ACTION would be entitled to review them.
Sec. 1210.3-6 Appeal of termination.
(a) Appeal to Regional Director. A Volunteer has 10 days from the
Notice of Decision issued by the State Director or designee in which to
appeal to the Regional Director. The appeal must be in writing and
specify the reasons for the Volunteer's disagreement with the decision.
The Regional Director has 10 days in which to render a written decision
on the Volunteer's appeal, indicating the reason for the decision. In
notifying the Volunteer of the decision, the Regional Director must also
inform the Volunteer of his or her opportunity to request the
appointment of a Hearing Examiner and the procedure to be followed.
(b) Referral to Hearing Examiner. If the Volunteer is dissatisfied
with the decision of the Regional Director, the Volunteer has 5 days in
which to request the appointment of a Hearing Examiner. The Regional
Director must act on that request within 5 days. The Hearing Examiner
must possess the qualifications specified in Appendix A to this part,
and may not be an employee of ACTION unless his or her principal duties
are those of Hearing Examiner.
[[Page 35]]
Sec. 1210.3-7 Inquiry by Hearing Examiner.
(a) Scope of Inquiry. (1) The Examiner shall conduct an inquiry of a
nature and scope appropriate to the issues involved in the termination.
If the Examiner determines that the termination involves relevant
disputed issues of fact, the Examiner must hold a hearing unless it is
waived by the Volunteer. If the Examiner determines that the termination
does not involve relevant disputed issues of facts, the Examiner need
not hold a hearing, but must provide the parties an opportunity for oral
presentation of their respective positions. At the Examiner's
discretion, the inquiry may include:
(i) The securing of documentary evidence;
(ii) Personal interviews, including telephone interviews;
(iii) Group meetings; or
(iv) Affidavits, written interrogatories or depositions.
(2) The Examiner's inquiry shall commence within 7 days after
referral by the Regional Director. The Examiner shall issue a report as
soon as possible, but within 30 days after referral, except when a
hearing is held. If hearing is held, the Examiner shall issue a report
within 45 days after the referral.
(b) Conduct of Hearing. If a hearing is held, the conduct of the
hearing and production of witnesses shall conform with the following
requirements:
(1) The hearing shall be held at a time and place determined by the
Examiner who shall consider the convenience of parties and witnesses and
expense to the Government in making the decision.
(2) Ordinarily, attendance at the hearing will be limited to persons
determined by the Examiner to have a direct connection with it. If
requested by the Volunteer, the Examiner must open the hearing to the
public.
(3) The hearing shall be conducted so as to bring out pertinent
facts, including the production of pertinent records.
(4) Rules of evidence shall not be applied strictly, but the
Examiner may exclude irrelevant or unduly repetitious testimony or
evidence.
(5) Decisions on the admissibility of evidence or testimony shall be
made by the Examiner.
(6) Testimony shall be under oath or affirmation, administered by
the Examiner.
(7) The Examiner shall give the parties an opportunity to present
oral and written testimony that is relevant and material, and to cross-
examine witnesses who appear to testify.
(8) The Examiner may exclude any person from the hearing for conduct
that obstructs the hearing.
(c) Witnesses. (1) All parties are entitled to produce witnesses.
(2) Volunteers, employees of a sponsor, and employees of ACTION
shall be made available as witnesses when requested by the Examiner. The
Examiner may request witnesses on his or her own initiative. Parties
shall furnish to the Examiner and to opposing parties a list of proposed
witnesses, and an explanation of what the testimony of each is expected
to show, at least 10 days before the date of the hearing. The Examiner
may waive the time limit in appropriate circumstances.
(3) Employees of ACTION shall remain in a duty status during the
time they are made available as witnesses.
(4) Volunteers, employees and any other persons who serve as
witnesses shall be free from coercion, discrimination, or reprisal for
presenting their testimony.
(5) The Examiner must authorize payment of travel expense and per
diem at standard Government rates for the Volunteer and a representative
to attend the hearing.
(6) The Examiner may authorize payment of travel expense and per
diem at standard Government rates for other necessary witnesses to
attend the hearing if he or she determines that the required testimony
cannot be satisfactorily obtained by affidavit, written interrogatories
or deposition at less cost.
(d) Report of Hearing. (1) The Examiner shall determine how any
hearing shall be reported and shall have either a verbatim transcript or
written summary of the hearing prepared, which shall include all
pertinent documents and exhibits submitted and accepted. If the hearing
is reported verbatim, the Examiner shall make the transcript a part of
the record of the proceedings.
(2) If the hearing is not reported verbatim, a suitable summary of
pertinent
[[Page 36]]
portions of the testimony shall be made part of the record of
proceedings. When agreed to in writing, the summary constitutes the
report of the hearing. If the Examiner and the parties fail to agree on
the hearing summary, the parties are entitled to submit written
exceptions to any part of the summary, and these written exceptions and
the summary will constitute the report of the hearing and shall be made
part of the record of proceedings.
(3) The Volunteer may make a recording of the hearing at the
Volunteer's own expense if no verbatim transcript is made.
Sec. 1210.3-8 Termination file and Examiner's report.
(a) Preparation and Content. The Examiner shall establish a
termination file containing documents related to the termination,
including statements of witnesses, records or copies thereof, and the
report of the hearing when a hearing was held. The Examiner shall also
prepare a report of findings and recommendations which shall be made
part of the termination file.
(b) Review by Volunteer. On completion of the termination file, the
Examiner shall make it available to the Volunteer and representative for
review and comment before submission to the Director of VISTA. Any
comments by the Volunteer or representative should be submitted to the
Hearing Examiner for inclusion in the termination file not later than 5
days after the file is made available to them. The comments should
identify those parts of the Examiner's report which support the appeal.
(c) Submission of termination file. Immediately upon receiving the
comments from the Volunteer the Hearing Examiner shall submit the
termination file to the Director of VISTA.
Sec. 1210.3-9 Decision by Director of VISTA.
The Director of VISTA shall issue a written decision, including a
statement of the basis for the decision, within 10 days after receipt of
the termination file. The decision of the Director of VISTA is the final
Agency decision.
Sec. 1210.3-10 Reinstatement of Volunteer.
(a) If the Regional Director or Director of VISTA reinstates the
Volunteer, the Regional Director may at his or her discretion reassign
the Volunteer to the Volunteer's previous project or to another project.
The Regional Director, in making such a decision, must request the
Volunteer's views, but has the final decision on the Volunteer's
placement.
(b) If the Volunteer's termination is reversed, stipend and other
allowances lost during the appeal period will be paid retroactively.
Sec. 1210.3-11 Disposition of termination and appeal files.
All termination and appeal files shall be forwarded to the Director
of VISTA after a final decision has been made and are subject to the
provisions of the Privacy Act and Freedom of Information Act. No part of
any successful termination appeal may be made part of, or included in, a
Volunteer's official folder.
Subpart D_National Grant Trainees and Volunteers
Sec. 1210.4 Early termination procedures for National Grant Trainees and
Volunteers.
Trainees and Volunteers serving in the National Grant Program as
defined in Sec. 1210.1-3(e) will be subject to the same termination
procedure as standard VISTA Trainees and Volunteers with the following
exceptions:
(a) For Trainees, the deselection procedure, [See Sec. 1210.2-2]
will be handled by the Project Manager in ACTION/Headquarters.
(b) The Initiation of termination, [See Sec. 1210.3-4 (a) and (b)]
will be handled by the VISTA Project Manager in ACTION/Headquarters,
with the concurrence of the appropriate State Director. The Review and
Notice of Decision, [See Sec. 1210.3-4(c)] will be handled by the VISTA
Project Manager in ACTION/Headquarters.
(c) The Appeal of termination, [See Sec. 1210.3-6(a)] will be
handled by the Chief of VISTA Branch and not the Regional Director.
[[Page 37]]
(d) The final decision on a Volunteer appeal will be made by the
Director of VISTA as provided in Sec. 1210.3.
Sec. Appendix A to Part 1210--Standard for Examiners
(a) An Examiner must meet the requirements specified in either
paragraph (1), (2), (3), or (4) of this appendix:
(1)(a) Current employment in Grades GS-12 or equivalent, or above;
(b) Satisfactory completion of a specialized course of training
prescribed by the Office of Personnel Management for Examiners;
(c) At least four years of progressively responsible experience in
administrative, managerial, professional, investigative, or technical
work which has demonstrated the possession of:
(i) The personal attributes essential to the effective performance
of the duties of an Examiner, including integrity, discretion,
reliability, objectivity, impartiality, resourcefulness, and emotional
stability.
(ii) A high degree of ability to:
--Identify and select appropriate sources of information; collect,
organize, analyze and evaluate information; and arrive at sound
conclusions on the basis of that information;
--Analyze situations; make an objective and logical determination of
the pertinent facts; evaluate the facts; and develop practical
recommendations or decisions on the basis of facts;
--Recognize the causes of complex problems and apply mature judgment
in assessing the practical implications of alternative solutions to
those problems;
--Interpret and apply regulations and other complex written
material;
--Communicate effectively orally and in writing, including the
ability to prepare clear and concise written reports; and
--Deal effectively with individuals and groups, including the
ability to gain the cooperation and confidence of others.
(iii) A good working knowledge of:
--The relationship between Volunteer administration and overall
management concerns; and
--The principles, systems, methods and administrative machinery for
accomplishing the work of an organization.
(2) Designation as an arbitrator on a panel of arbitrators
maintained by either the Federal Mediation and Conciliation Service or
the American Arbitration Association.
(3) Current or former employment as, or current eligibility on the
Office of Personnel Management's register for Hearing Examiner, GS-935-
0.
(4) Membership in good standing in the National Academy of
Arbitrators.
(b) A former Federal employee who, at the time of leaving the
Federal service, was in Grade GS-12 or equivalent, or above, and who
meets all the requirements specified for an Examiner except completion
of the prescribed training course, may be used as an Examiner upon
satisfactory completion of the training course.
PART 1211_VOLUNTEER GRIEVANCE PROCEDURES--Table of Contents
Sec.
1211.1-1 Purpose.
1211.1-2 Applicability.
1211.1-3 Definitions.
1211.1-4 Policy.
1211.1-5 Matters not covered.
1211.1-6 Freedom to initiate grievances.
1211.1-7 Entitlement to representation.
1211.1-8 Time for preparation and presentation.
1211.1-9 Access to agency records.
1211.1-10 Informal grievance procedure.
1211.1-11 Initiation of formal grievance procedure.
1211.1-12 Investigation by Grievance Examiner.
1211.1-13 Grievance file and examiner's report.
1211.1-14 Final determination by Director of VISTA.
1211.1-15 Disposition of grievance appeal files.
1211.1-16 Grievance procedure for National VISTA Grant Volunteers.
Appendix A to Part 1211--Standards for Examiners
Authority: Secs. 104(d), 402(14), 420, Pub. L. 93-113, 87 Stat. 398,
407, and 414.
Source: 45 FR 39271, June 10, 1980, unless otherwise noted.
Sec. 1211.1-1 Purpose.
This part establishes procedures under which certain volunteers
enrolled under Pub. L. 93-113 may present and obtain resolution of
grievances.
Sec. 1211.1-2 Applicability.
This part applies to all volunteers enrolled under part A of title I
of the Domestic Volunteer Service Act of 1973, as amended, Pub. L. 93-
113, (42 U.S.C. 4951 et seq.).
Sec. 1211.1-3 Definitions.
(a) Volunteer means a person enrolled and currently serving as a
full-time volunteer under part A of title I of the Domestic Volunteer
Service Act of 1973. For the purpose of this part, a volunteer whose
service has terminated
[[Page 38]]
shall be deemed to be a volunteer for a period of 90 days thereafter.
(b) Grievance means a matter arising out of, and directly affecting,
the volunteer's work situation, or a violation of those regulations
governing the terms and conditions of service resulting in the denial or
infringement of a right or benefit to the grieving volunteer. Terms and
conditions of service refer to those rights and privileges accorded the
volunteer either through statute, Agency regulation, or Agency policy.
(1) The relief requested must be directed toward the correction of
the matter involving the affected individual volunteer or the affected
group of volunteers and may request the revision of existing policies
and procedures to ensure against similar occurrences in the future.
Requests for relief by more than one volunteer arising from a common
cause within one region may be treated as a single grievance. The
following are examples of grievable matters:
(i) A volunteer is assigned to an area of harsh climate where
special clothing is necessary and not already possessed by the
volunteer. A request for a special allowance for such clothing is
arbitrarily refused.
(ii) A volunteer submits a request for reimbursement for
transportation costs incurred while on authorized emergency leave which
is denied.
(iii) The project sponsor fails to provide adequate support to the
volunteer necessary for that volunteer to perform the assigned work,
such as the sponsor's failure to provide materials to the volunteer
which is necessary for the performance of the volunteer's work.
(c) State Program Officer means that ACTION official who is directly
responsible at the first level for the project in which the volunteer is
serving.
(d) Sponsor means a public or private nonprofit agency to which
ACTION has assigned volunteers.
(e) Grievance Examiner or Examiner means a person having the
qualifications described in Appendix A who is appointed to conduct an
inquiry or hearing with respect to a grievance.
(f) National VISTA Grants Program means a program operated under
part A, title I of the Domestic Volunteer Service Act in which ACTION
awards a grant to a national grantee to operate a VISTA Volunteer
program on a national or multi-regional basis.
(g) Local component means a local office or project affiliate of a
national grantee which has VISTA Volunteers assigned to it under the
National VISTA Grants Program.
(h) The Act means the Domestic Volunteer Service Act of 1973, Pub.
L. 93-113, (42 U.S.C. 4951 et seq.), as amended.
Sec. 1211.1-4 Policy.
It is ACTION's policy to provide volunteers the widest latitude to
present their grievances and concerns to appropriate officials of ACTION
and of sponsoring organizations. This regulation is designed to assure
that the rights of individual volunteers are recognized and to provide
formal ways for them to seek redress with confidence that they will
obtain just treatment.
Sec. 1211.1-5 Matters not covered.
Matters not within the definition of a grievance as defined in Sec.
1211.1-3(b) are not eligible for processing under this procedure. The
following are specific examples of excluded areas and are not intended
as a complete listing of the matters excluded by this part:
(a) The establishment of a volunteer project, its continuance or
discontinuance, the number of volunteers assigned to it, increases or
decreases in the level of support provided to a project, suspension or
termination of a project, or selection and retention of project staff.
(b) Matters for which a separate administrative procedure is
provided.
(c) The content of any law, published rule, regulation, policy or
procedure.
(d) Matters which are, by law, subject to final administrative
review outside ACTION.
(e) Actions taken in compliance with the terms of a contract, grant,
or other agreement.
(f) The internal management of the ACTION Agency unless such
management is specifically shown to individually and directly affect the
volunteer's work situation or the terms and conditions of service as
defined in Sec. 1211.1-3(b).
[[Page 39]]
Sec. 1211.1-6 Freedom to initiate grievances.
The initiation of a grievance shall not be construed as reflecting
on a volunteer's standing, performance or desirability as a volunteer.
ACTION intends that each supervisor and sponsor, as well as ACTION and
its employees, maintain a healthy atmosphere in which a volunteer can
speak freely and have frank discussions of problems. A volunteer who
initiates a grievance shall not as a result of such an action be
subjected to restraint, interference, coercion, discrimination or
reprisal.
Sec. 1211.1-7 Entitlement to representation.
A volunteer may be accompanied, represented, and advised by a
representative of the volunteer's own choice at any stage of the
proceeding. The volunteer shall designate his or her representative in
writing. A person chosen by the volunteer must be willing to act as
representative and have no conflict between his or her position and the
subject matter of the grievance.
Sec. 1211.1-8 Time for preparation and presentation.
(a) Both a volunteer and a volunteer's representative, if another
volunteer or an employee of ACTION, must be given a reasonable amount of
administrative leave from their assignments to present a grievance or
appeal.
(b) ACTION will not pay travel expense or per diem travel allowances
for either a volunteer or his or her representative in connection with
the preparation of a grievance or appeal, except in connection with a
hearing and the examination of the grievant file as provided in Sec.
1211.1-12(c).
Sec. 1211.1-9 Access to agency records.
(a) A volunteer is entitled to review any material in his or her
official volunteer folder and any relevant Agency documents to the
extent permitted by the Freedom of Information Act and the Privacy Act,
as amended, 5 U.S.C. 552, U.S.C. 552a. Examples of documents which may
be withheld from volunteers include references obtained under a pledge
of confidentiality, official volunteer folders of other volunteers, and
privileged intra-agency documents.
(b) A volunteer may review relevant documents in the possession of a
sponsor to the extent such documents are disclosable under the Freedom
of Information Act and Privacy Act.
Sec. 1211.1-10 Informal grievance procedure.
(a) Initiation of grievance. A volunteer may initiate a grievance
within 15 calendar days after the event giving rise to the grievance
occurs, or within 15 calendar days after becoming aware of the event. A
grievance arising out of a continuing condition or practice that
individually affects the volunteer may be brought at any time. A
volunteer initiates a grievance by presenting it in writing to the chief
executive officer of the sponsor, or the representative designated to
receive grievances from volunteers. The designated representative may
not be the immediate supervisor of volunteers assigned to the sponsor.
The chief executive officer of the sponsor or the designated
representative shall respond in writing to the grievance within five (5)
working days after receipt. The chief executive officer or designee may
not refuse to respond to a complaint on the basis that it is not a
grievance as defined in Sec. 1211.1-3(b), or that it is excluded from
coverage under Sec. 1211.1-5, but may, in the written response, refuse
to grant the relief requested on either of these grounds.
If the grievance involves a matter over which the sponsor has no
control, or if the chief executive officer is the immediate supervisor
of the volunteer, the procedures described in this section may be
omitted, and the volunteer may present the grievance in writing directly
to the State Director or designee as described in paragraph (b) of this
section within the time limits specified in this paragraph (a).
(b) Consideration by ACTION State Director or designee. If the
matter is not resolved to the volunteer's satisfaction by the sponsor's
chief executive officer, the volunteer may submit the grievance in
writing to the ACTION State Director or designee within five (5)
[[Page 40]]
working days after receipt of the decision of the sponsor's chief
executive officer. The State Director or designee may not refuse to
receive a complaint, even if he or she believes it does not constitute a
grievance, and shall respond to it in writing within five (5) working
days after receipt. The response may indicate that the matter is not
grievable. If the State Director or designee fails to meet the time
limit for response, the volunteer may initiate a formal grievance.
(c) Discussion. All parties to the informal grievance procedure must
be prepared to participate in full discussion of the grievance, and to
permit the participation of others who may have knowledge of the
circumstances of the grievance in the discussion. State Program Officers
and other ACTION employees may participate in discussions and provide
guidance with respect to ACTION policies and procedures, at the request
of any party, even prior to submission of a grievance to them.
(d) Sponsor grievance procedure. A sponsor may substitute its own
grievance procedure for the procedure described in paragraph (a) of this
section. Any such procedure must provide the volunteer with an
opportunity to present a grievance at least as comprehensive as that
contained in this section, must meet the time limits of this section,
and must be provided in writing to all volunteers. In order to utilize
its own grievance procedures, the sponsor must obtain approval of the
procedure from the ACTION State Director and file a copy of this
approved procedure with the State Office.
Sec. 1211.1-11 Initiation of formal grievance procedure.
(a) Submission of grievance to Regional Director. If a volunteer is
dissatisfied with the response of the State Director or designee
required by Sec. 1211.1-10(b), he or she may present the grievance in
writing to the Regional Director. To be eligible for the formal
grievance procedure, the volunteer must have completed action under the
informal procedure contained in Sec. 1211.1-10 or have alleged that the
State Director or designee exceeded the time specified for response.
(b) Contents of grievance. The volunteer's grievance must be in
writing, contain sufficient detail to identify the subject matter of the
grievance, specify the relief requested, and be signed by the volunteer
or a person designated in writing by the volunteer to be the
representative for the purpose of the grievance.
(c) Time limit. The volunteer must submit the grievance to the
Regional Director or designee no later than 15 calendar days after
receipt of the informal response by the State Director or designee. If
no response is received by the volunteer 15 calendar days after the
grievance is received by the State Director or designee, the volunteer
may submit the grievance directly to the Regional Director or designee
for consideration.
(d) Within ten (10) working days of the receipt of the grievance,
the Regional Director or designee shall, in whole or in part, either
decide it on its merits or reject the grievance. A grievance may be
rejected, in whole or in part, for the following reasons:
(1) It was not filed within the time limit specified in paragraph
(c) of this section, or
(2) The grievance consists of matters not contained within the
definition of a grievance.
(e) Rejection of a grievance by the Regional Director or designee
may be appealed by the volunteer within ten (10) days of receipt of the
notice to the Office of General Counsel. The Office shall immediately
request the grievance file from the Regional Director and, within five
(5) working days of receipt of it, determine the appropriateness of the
rejection. If the grievance was properly rejected by the Regional
Director, the Office shall so notify the volunteer of its opinion and
the reasons supporting it, and that such rejection is the final Agency
decision in the matter. If the Office determines that the grievance was
improperly rejected, it shall return the grievance to the Regional
Director for a determination on its merits by the Regional Director.
Within ten (10) working days of such notification and receipt of the
grievance file, the Regional Director or designee shall notify the
volunteer in writing of the decision on the merits and specify the
grounds
[[Page 41]]
for the decision and of the volunteer's right to appeal.
(f) Time Limit. If a volunteer is dissatisfied with the decision of
the Regional Director or designee on the merits of the grievance, he or
she shall notify the Regional Director within five (5) calendar days
from receipt of the decision and request the appointment of an Examiner.
If the volunteer receives no response from the Regional Director or
Office of General Counsel as required by paragraphs (d) and (e) of this
section within five (5) calendar days after the prescribed time limits,
the volunteer may request in writing that the Regional Director appoint
a Grievance Examiner. Upon receipt of this request, the Regional
Director or designee shall appoint within five (5) calendar days an
Examiner who shall possess the qualifications specified in Appendix A to
this part.
Sec. 1211.1-12 Investigation by Grievance Examiner.
(a) Scope of investigation. The Examiner shall conduct an
investigation of a nature and scope appropriate to the issues involved
in the grievance.
Unless waived by the volunteer, a hearing must be held if the
Examiner finds that the grievance involves disputed questions of fact
that go to the heart of the agency determination. Only those facts found
necessary by the Examiner on which to base his or her findings go to the
heart of the Agency determination.
If the grievance does not involve such disputed questions of fact,
or if the volunteer waives a hearing, the Examiner need not hold a
hearing but must provide the parties an opportunity for presentation of
their respective positions. At the Examiner's discretion, the
investigation may include:
(1) The securing of documentary evidence,
(2) Personal interviews, including telephone interviews,
(3) Group meetings,
(4) Affidavits, written interrogatories or depositions.
(b) Conduct of Hearing. If a hearing is held, the conduct of the
hearing and production of witnesses shall conform with the following
requirements:
(1) The hearing shall be held at a time and place determined by the
Examiner who shall consider the convenience of parties and witnesses and
expense to the Government in making his or her decision.
(2) Attendance at the hearing will be limited to persons determined
by the Examiner to have a direct connection with the grievance. If
requested by the volunteer, the Examiner must open the hearing to the
public.
(3) The hearing shall be conducted so as to bring out pertinent
facts, including the production of pertinent records.
(4) Formal rules of evidence shall not be applied strictly, but the
Examiner may exclude irrelevant or unduly repetitious testimony or
evidence.
(5) Decisions on the admissibility of evidence or testimony shall be
made by the Examiner.
(6) Testimony shall be under oath or affirmation, administered by
the Examiner.
(7) The Examiner shall give the parties an opportunity to present
oral and written testimony that is relevant and material, and to cross-
examine witnesses who testify.
(8) The Examiner may exclude any person from the hearing for conduct
that obstructs the hearing.
(c) Witnesses. (1) All parties are entitled to produce witnesses.
(2) Volunteers, employees of a sponsor, and employees of ACTION
shall be made available as witnesses when requested by the Examiner. The
Examiner may request witnesses on his or her initiative. Parties shall
furnish to the Examiner and to opposing parties a list of proposed
witnesses, and an explanation of what the testimony of each is expected
to show, at least ten (10) calendar days before the date of the hearing.
The Examiner may waive the time limit in appropriate circumstances.
(3) Employees of ACTION shall remain in a duty status during the
time they are made available as witnesses.
(4) Volunteers, employees and any other persons who serve as
witnesses shall be free from coercion, discrimination or reprisal for
presenting their testimony.
(5) The Examiner must authorize payment of travel expenses and per
[[Page 42]]
diem at standard Government rates for the volunteer and the
representative to attend the hearing. Payment of travel expenses and per
diem at standard Government rates for other witnesses to attend the
hearing are authorized only after the Examiner determines that the
required testimony cannot be satisfactorily obtained by affidavit,
written interrogatories, or deposition, at a lesser cost.
(d) Recording of Hearing. A grievant may make a recording of the
hearing at his or her own expense if no verbatim transcript is made.
Such a recording is in no way to be treated as the official transcript
of the hearing.
(e) Report of Hearing. The Examiner shall normally prepare a written
summary of the hearing which shall include all documents and exhibits
submitted to and accepted by the Examiner during the course of the
grievance. An Examiner may require a verbatim transcript if he or she
determines that the grievance is so complex as to require such a
transcript. If the hearing is reported verbatim, the Examiner shall make
the transcript a part of the record of the proceedings. If the hearing
is not reported verbatim, a suitable summary of pertinent portions of
the testimony shall be made part of the record of proceedings. In such
cases, the summary together with exhibits shall constitute the report of
the hearing. The parties are entitled to submit written exceptions to
any part of the summary, and these written exceptions shall be made part
of the record of proceedings.
Sec. 1211.1-13 Grievance file and examiner's report.
(a) Preparation and content. The Examiner shall establish a
grievance file containing all documents related to the grievance,
including statements of witnesses, records or copies thereof, and the
report of the hearing when a hearing was held. The file shall also
contain the Examiner's report of findings and recommendations.
(b) Review by volunteer. On completion of the inquiry, the Examiner
shall make the grievance file available to the volunteer and the
representative, if any, for review and comment. Their coments, if any,
shall be submitted to the Examiner within five (5) calendar days after
the file is made available and shall be included in the file.
(c) Examiner's report. After the volunteer has been given an
opportunity to review the grievance file, the Examiner shall submit the
complete grievance file to the Director of VISTA.
Sec. 1211.1-14 Final determination by Director of VISTA.
The Director of VISTA or designee shall issue a written decision on
the appeal to the volunteer within ten (10) working days after receipt
of the appeal file. The decision shall include a statement of the basis
for the determination, and shall be the final Agency decision.
Sec. 1211.1-15 Disposition of grievance appeal files.
All grievance appeal files shall be retained by the Director of
VISTA after the grievance has been settled, or a final decision has been
made and implemented. No part of a grievance or appeal file may be made
part of, or included in, a volunteer's official folder.
Sec. 1211.1-16 Grievance procedure for National VISTA Grant Volunteers.
The grievance procedure for National VISTA Grant Volunteers shall be
the same as that provided in this part with the following substitutions
of officials:
(a) Informal grievance procedure:
(1) The initiation of an informal grievance for a National Grant
VISTA, see Sec. 1211.1-10, shall normally be to the sponsor of the
local component. If the grievance involves a matter solely within the
control of the ACTION State Office, the volunteer may present the
grievance to the State Director or designee in lieu of the local
component sponsor.
(2) If the volunteer is not satisfied with the response of the
appropriate official (sponsor of local component, or State Director or
designee), the volunteer may submit the grievance to the chief executive
of the national grantee.
(b) Formal grievance procedure:
The Chief, VISTA Program Development Branch or designee shall
replace the Regional Director as the official in Sec. 1211.1-11.
[[Page 43]]
Sec. Appendix A to Part 1211--Standards for Examiners
An examiner must meet the requirements specified in either paragraph
(1), (2), (3), or (4) of this appendix:
(1) Current or former federal employees now or formerly in grade GS-
12 or equivalent, or above who have:
(a) At least four (4) years of progressively responsible experience
in administrative, managerial, professional, investigative, or technical
work which has demonstrated the possession of:
(i) The personal attributes essential to the effective performance
of the duties of an Examiner, including integrity, discretion,
reliability, objectivity, impartiality, resourcefulness, and emotional
stability.
(ii) A high degree of ability to:
Identify and select appropriate sources of information; collect,
organize, analyze, and evaluate information; and arrive at sound
conclusions on the basis of that information;
Analyze situations; make an objective and logical determinationn of
the pertinent facts; evaluate the facts; and develop practicable
recommendations or decisions on the basis of facts;
Recognize the causes of complex problems and apply mature judgment
in assessing the practical implications of alternative solutions to
those problems;
Interpret and apply regulations and other complex written material;
Communicate effectively, orally and in writing, including the
ability to prepare clear and concise written reports; and
Deal effectively with individuals and groups, including the ability
to gain the cooperation and confidence of others.
(iii) A good working knowledge of:
The relationship between volunteer administration and overall
management concerns; and
The principles, systems, methods, and administrative machinery for
accomplishing the work of an organization.
(2) Designation as an arbitrator on a panel of arbitrators
maintained by either the Federal Mediation and Conciliation Service or
the American Arbitration Association.
(3) Current or former employment as, or current eligibility on the
Office of Personnel Management register for Examiners
GS-935-0.
(4) Membership in good standing in the National Academy of
Arbitrators.
PART 1212_VOLUNTEER AGENCIES PROCEDURES FOR NATIONAL GRANT VOLUNTEERS
[RESERVED]
PART 1214_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN
PROGRAMS OR ACTIVITIES CONDUCTED BY ACTION--Table of Contents
Sec.
1214.101 Purpose.
1214.102 Application.
1214.103 Definitions.
1214.104-1214.109 [Reserved]
1214.110 Self-evaluation.
1214.111 Notice.
1214.112-1214.129 [Reserved]
1214.130 General prohibitions against discrimination.
1214.131-1214.139 [Reserved]
1214.140 Employment.
1214.141-1214.148 [Reserved]
1214.149 Program accessibility: Discrimination prohibited.
1214.150 Program accessibility: Existing facilities.
1214.151 Program accessibility: New construction and alterations.
1214.152-1214.159 [Reserved]
1214.160 Communications.
1214.161-1214.169 [Reserved]
1214.170 Compliance procedures.
Authority: 29 U.S.C. 794; 42 U.S.C. 5057.
Source: 55 FR 47761, Nov. 15, 1990, unless otherwise noted.
Sec. 1214.101 Purpose.
The purpose of this part is to effectuate section 119 of the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, which amended section 504 of the Rehabilitation Act
of 1973 to prohibit discrimination on the basis of handicap in programs
or activities conducted by Executive agencies or the United States
Postal Service.
Sec. 1214.102 Application.
This part applies to all programs or activities conducted by the
agency, except for programs or activities conducted outside the United
States that do not involve individuals with handicaps in the United
States.
Sec. 1214.103 Definitions.
For purposes of this part, the term--
Agency means ACTION.
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
[[Page 44]]
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, and other similar services and devices. Auxiliary aids
useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDD's), interpreters, notetakers, written
materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504 of the Act. It
shall be signed by the complainant or by someone authorized to do so on
his or her behalf. Complaints filed on behalf of classes or third
parties shall describe or identify (by name, if possible) the alleged
victims of discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Individuals with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment. As used in this definition, the phrase:
(1) Physical or mental impairment includes--
(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.
(2) Major life activities includes 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 is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limit
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
Qualified individual with handicaps means--
(1) With respect to preschool, elementary, or secondary education
services provided by the agency, an individual with handicaps who is a
member of a class of persons otherwise entitled by statute, regulation,
or agency policy to receive educational services from the agency;
(2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
agency can demonstrate would result in a fundamental alteration in its
nature;
[[Page 45]]
(3) With respect to any other program or activity, an individual
with handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(4) Qualified handicapped person as that term is defined for
purposes of employment in 29 CFR 1613.702(f), which is made applicable
to this part by Sec. 1214.140.
Section 504 of the Act means section 504 of the Rehabilitation Act
of 1973 (Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by
the Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat.
1617); the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810),
and the Civil Rights Restoration Act of 1987 (Pub. L. 100-259, 102 Stat.
28). As used in this part, section 504 of the Act applies only to
programs or activities conducted by Executive agencies and not to
federally assisted programs.
Sec. Sec. 1214.104-1214.109 [Reserved]
Sec. 1214.110 Self-evaluation.
(a) The agency shall, within one year of the effective date of this
part, evaluate its current policies and practices, and the effects
thereof, that do not or may not meet the requirements of this part and,
to the extent modification of any such policies and practices is
required, the agency shall proceed to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including individuals with handicaps or organizations representing
individuals with handicaps, to participate in the self-evaluation
process by submitting comments (both oral and written).
(c) The agency shall, for at least three years following completion
of the self-evaluation, required under paragraph (a) of this section,
maintain on file and make available for public inspection--
(1) A description of areas examined and any problems identified; and
(2) A description of any modifications made.
Sec. 1214.111 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the agency, and make such
information available to them in such manner as the head of the agency
finds necessary to apprise such persons of the protections against
discrimination assured them by section 504 of the Act and this part.
Sec. Sec. 1214.112-1214.129 [Reserved]
Sec. 1214.130 General prohibitions against discrimination.
(a) No qualified individual with handicaps 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 conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with 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 to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others;
[[Page 46]]
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with handicaps
the opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would be to--
(i) Subject qualified individuals with handicaps to discrimination
on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this part.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with handicaps.
Sec. Sec. 1214.131-1214.139 [Reserved]
Sec. 1214.140 Employment.
No qualified individual with handicaps shall, on the basis of
handicap, be subjected to discrimination in employment under any program
or activity conducted by the agency. The definitions, requirements, and
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791), as established by the Equal Employment Opportunity Commission in
29 CFR part 1613, shall apply to employment in federally conducted
programs or activities.
Sec. Sec. 1214.141-1214.148 [Reserved]
Sec. 1214.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Sec. 1214.150, no qualified
individual with handicaps shall, because the agency's facilities are
inaccessible to or unusable by individuals with handicaps, be denied the
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.
Sec. 1214.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not--
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with handicaps; or
(2) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 1214.150(a) would result in such
alteration or burdens. The decision that
[[Page 47]]
compliance would result in such alteration or burdens must be made by
the agency head or his or her designee after considering all agency
resources available for use in the funding and operation of the
conducted program or activity and must be accompanied by a written
statement of the reasons for that conclusion. If an action would result
in such an alteration or such burdens, the agency shall take any other
action that would not result in such an alteration or such burdens but
would nevertheless ensure that individuals with handicaps receive the
benefits and services of the program or activity.
(b) Methods. The agency may comply with the requirements of this
section through such means as redesign of equipment, reassignment of
services to accessible buildings, assignment of aides to beneficiaries,
home visits, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any other methods that result in
making its programs or activities readily accessible to and usable by
individuals with handicaps. The agency is not required to make
structural changes in existing facilities where other methods are
effective in achieving compliance with this section. The agency, in
making alterations to existing buildings, shall meet accessibility
requirements to the extent compelled by the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), and any regulations
implementing it. In choosing among available methods for meeting the
requirements of this section, the agency shall give priority to those
methods that offer programs and activities to qualified individuals with
handicaps in the most integrated setting appropriate.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section within sixty days of the
effective date of this part except that where structural changes in
facilities are undertaken, such changes shall be made within three years
of the effective date of this part, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, within six months of the effective date of this
part, a transition plan setting forth the steps necessary to complete
such changes. The agency shall provide an opportunity to interested
persons, including individuals with handicaps or organizations
representing individuals with handicaps, to participate in the
development of the transition plan by submitting comments (both oral and
written). A copy of the transition plan shall be made available for
public inspection. The plan shall, at a minimum--
(1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to individuals
with handicaps;
(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
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the agency official responsible for implementation of
the plan.
Sec. 1214.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with handicaps. The definitions, requirements, and standards
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
Sec. Sec. 1214.152-1214.159 [Reserved]
Sec. 1214.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary
[[Page 48]]
to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid will be provided, the
agency shall give primary consideration to the requests of the
individual with handicaps.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used to communicate
with persons with impaired hearing.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide a sign at a primary entrance to each of
its inaccessible facilities, directing users to a location at which they
can obtain information about accessible facilities. The international
symbol for accessibility shall be displayed at each primary entrance to
each accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 1214.160 would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the agency head or
his or her designee after considering all agency resources available for
use in the funding and operation of the conducted program or activity
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action required to comply with this
section would result in such alteration or such burdens, the agency
shall take any other action that would not result in such an alteration
or such burdens but would nevertheless ensure that, to the maximum
extent possible, individuals with handicaps receive the benefits and
services of the program or activity.
Sec. Sec. 1214.161-1214.169 [Reserved]
Sec. 1214.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs and activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) Responsibility for implementation and operation of this section
shall be vested in the Director, Equal Opportunity Staff.
PART 1216_NONDISPLACEMENT OF EMPLOYED WORKERS AND NONIMPAIRMENT OF CONTRACTS
FOR SERVICE--Table of Contents
Sec.
1216.1-1 Purpose.
1216.1-2 Applicability of this part.
1216.1-3 Policy.
1216.1-4 Exceptions.
Authority: Secs. 402(12), 404(a), 420 of Pub. L. 93-113, 87 Stat.
394, 408, 414.
Source: 40 FR 16209, Apr. 10, 1975, unless otherwise noted.
Sec. 1216.1-1 Purpose.
This part establishes rules to assure that the services of
volunteers are limited to activities which would not otherwise be
performed by employed workers and which will not supplant the hiring of,
or result in the displacement of, employed workers or impair existing
contracts for service. It implements section 404(a) of the Domestic
Volunteer Service Act of 1973, Pub. L. 93-113 (the ``Act'').
[[Page 49]]
Sec. 1216.1-2 Applicability of this part.
(a) All full-time and part-time volunteers assigned, referred or
serving pursuant to grants, contracts, or agreements made pursuant to
the Act.
(b) All agencies and organizations to which the volunteers in
paragraph (a) of this section are assigned, referred or provide
services.
Sec. 1216.1-3 Policy.
(a) Volunteers enrolled or participating in programs referred to in
paragraphs (a) and (b) of Sec. 1216.1-2 may not perform any services or
duties or engage in activities which would otherwise be performed by an
employed worker as part of his assigned duties as an employee.
(b) Volunteer referred to in paragraph (a) of this section may not
perform any services or duties or engage in activities which will
supplant the hiring of employed workers. This prohibition is violated
if, prior to engaging a volunteer, an agency or organization referred to
in Sec. 1216.1-2(c) had intended to hire a person to undertake all or a
substantial part of the services, duties, or other activities to be
provided by the volunteer.
(c) Volunteers referred to in paragraph (a) of this section may not
perform any services or duties or engage in activities which result in
the displacement of employed workers. Such volunteers may not perform
services or duties which have been performed by or were assigned to, any
of the following:
(1) Presently employed workers,
(2) Employees who recently resigned or were discharged,
(3) Employees who are on leave (terminal, temporary, vacation,
emergency, or sick), or
(4) Employees who are on strike or who are being locked out.
(d) Volunteers referred to in paragraph (a) of this section may not
perform any services or duties or engage in activities which impair
existing contracts for service. This prohibition is violated if a
contract for services is modified or cancelled because an agency or
organization referred to in Sec. 1216.1-2(b) engages a volunteer to
provide or perform all or a substantial part of any services, duties, or
other activities set forth in such contract. The term ``contract for
services'' includes but is not limited to contracts, understandings and
arrangements, either written or oral, to provide professional,
managerial, technical, or administrative services.
(e) Agencies and organizations referred to in Sec. 1216.1-2(b) are
prohibited from assigning or permitting volunteers referred to in Sec.
1216.1-2(a) to perform any services or duties or engage in any
activities prohibited by paragraphs (a) through (d) of this section.
Sec. 1216.1-4 Exceptions.
(a) The requirements of Sec. 1216.1-3 are not applicable to the
following, or similar, situations:
(1) Funds are unavailable for the employment of sufficient staff to
accomplish a program authorized or of a character eligible for
assistance under the Act and the activity, service, or duty is otherwise
appropriate for the assignment of a volunteer.
(2) Volunteer services are required in order to avoid or relieve
suffering threatened by or resulting from major natural disasters or
civil disturbances.
(3) Reasonable efforts to obtain employed workers have been
unsuccessful due to the unavailability of persons within the community
who are able, willing, and qualified to perform the needed activities.
(4) The assignment of volunteers will significantly expand services
to a target community over those which could be performed by existing
paid staff, and the activity, service or duty is otherwise appropriate
for the assignment of a volunteer and no actual displacement of paid
staff will occur as a result of the assignment.
(b) For the purposes of paragraphs (a)(1) and (4) of this section,
the assignment is not appropriate for the assignment of a volunteer if:
(1) The service, duty, or activity is principally a routine
administrative or clerical task. This definition applies only to any
service, duty, or activity performed by a volunteer receiving financial
support apart from reimbursement for expenses.
(2) The volunteer is not directly in contact with groups or
individuals whom the Act is designed to serve or is
[[Page 50]]
not performing services, duties, or engaged in activities authorized or
of a character eligible for assistance under the Act.
PART 1217_VISTA VOLUNTEER LEADER--Table of Contents
Sec.
1217.1 Introduction.
1217.2 Establishment of position.
1217.3 Qualifications.
1217.4 Selection procedure.
1217.5 Allowances and benefits.
1217.6 Roles of volunteers.
Authority: Secs. 104(b) and 420 of Pub. L. 93-113, 87 Stat. 398 and
414.
Source: 39 FR 44203, Dec. 23, 1974, unless otherwise noted.
Sec. 1217.1 Introduction.
Section 105(a)(1), Part A, of the Domestic Volunteer Service Act of
1973, Pub. L. 93-113, 87 Stat. 398, authorizes the Director of ACTION to
pay VISTA volunteers a stipend not to exceed $50 per month and a stipend
not to exceed $75 a month in the case of VISTA volunteers who have
served for at least a year and have been designated volunteer leaders.
Section 105(a)(1) further provides that the selection of volunteer
leaders shall be pursuant to standards, established in regulations which
the Director shall prescribe, which shall be based upon the experience
and special skills and the demonstrated leadership of such persons among
volunteers.
Sec. 1217.2 Establishment of position.
A request for the proposed establishment of VISTA volunteer leader
position for a specific project shall be submitted by a sponsor in
writing in advance to the appropriate ACTION Regional Director. Specific
tasks, responsibilities, qualifications, and the proposed supervisory
structure are to be detailed in the request.
Sec. 1217.3 Qualifications.
A volunteer recommended for a VISTA volunteer leader position must
have:
(a) Completed a one-year term as a VISTA volunteer.
(b) Demonstrated ability to work constructively and communicate with
volunteers, supervisor/sponsor, and the target population.
(c) Demonstrated ability to work well with and gain acceptance of
other volunteers.
(d) Demonstrated ability to provide self-motivation and self-
direction, and maturity to accept supervision and direction from
supervisor/sponsor.
(e) Sensitivity to the needs and attitudes of others, and exhibit a
sincere commitment to the mission of VISTA.
Sec. 1217.4 Selection procedure.
(a) Nomination. Candidates may be nominated in writing to the
Regional Director by the Program Officer or the State Program Director
in whose area the volunteer serves. The nomination shall include a copy
of the completed ACTION Form V-95a, for the Regional Director's review.
(b) Selection. VISTA volunteer leaders will be selected by the
Regional Director (or his designee). The criteria for selection shall
include:
(1) The recommendation of the volunteer by the State Program
Director or Program Officer.
(2) An overall rating by the supervisor/sponsor of above average on
the ACTION Form V-95a.
(3) A description of specific tasks, responsibilities,
qualifications, and the proposed supervisory structure, which justifies
the establishment of the VISTA volunteer leader position. A selection
decision is final.
(c) Reenrollment. VISTA volunteer leaders may be reenrolled in
accordance with the VISTA reenrollment and extension policy.
Sec. 1217.5 Allowances and benefits.
The VISTA volunteer leader shall be entitled to all allowances and
benefits of a VISTA volunteer at the level which is consistent with the
level for all volunteers on his/her project, except that:
(a) The stipend will be increased from $50 to $75 per month
effective on the date of selection of the VISTA volunteer leader.
(b) Support for on-the-job transportation may be increased,
consistent with ACTION policy.
[[Page 51]]
Sec. 1217.6 Roles of volunteers.
VISTA volunteer leaders may have the following roles:
(a) Primary contact with VISTA volunteers on personal and
administrative matters.
(b) Aid in communication of VISTA policies to VISTA volunteers.
(c) Encourage and develop VISTA volunteer leadership and initiative
on projects.
(d) Aid as a resource in development and conduct of training
programs.
(e) Assist sponsor in preparation for arrival of VISTA volunteers,
and assist new volunteers in settling-in, housing, orientation, etc.
(f) Aid in the development of meaningful relationship and
understanding of individual program concepts with VISTA volunteers and
supervisor/sponsor.
(g) Advise supervisor on potential problem areas, and needs of VISTA
volunteers.
(h) Aid supervisor/sponsor in the redevelopment of projects to best
meet goals and objectives addressing the community's problem(s).
PART 1218_VISTA VOLUNTEERS_HEARING OPPORTUNITY--Table of Contents
Sec.
1218.1 Introduction.
1218.2 Applicability.
1218.3 Policy.
1218.4 Standards for regional plan.
1218.5 Procedures for approval of plan.
1218.6 Freedom to present views.
Authority: Secs. 104(d), 402(14) and 420 of Pub. L. 93-113, 87 Stat.
398, 407 and 414.
Source: 39 FR 43725, Dec. 18, 1974, unless otherwise noted.
Sec. 1218.1 Introduction.
Section 104(d) of the Domestic Volunteer Service Act of 1973, Pub.
L. 93-113, 87 Stat. 398 requires that the Director of ACTION establish a
procedure, including notice and an opportunity to be heard, for VISTA
volunteers to present views in connection with the terms and conditions
of their service.
Sec. 1218.2 Applicability.
This part applies to all volunteers enrolled under part A of title I
of the Domestic Volunteer Service Act of 1973, Pub. L. 93-113, 87 Stat.
396.
Sec. 1218.3 Policy.
It is ACTION's policy to encourage the free exchange of views
between volunteers and staff members with respect to the terms and
conditions of the volunteers' service. Ordinarily these exchanges occur
in the day-to-day contact between volunteers and staff. However, there
are occasions when it is desirable to provide volunteers with an
opportunity to present their views with respect to the terms and
conditions of their service in a more formal way. The differences
between ACTION regions require that the means selected in each region to
accomplish this result be appropriate to its particular needs. This
regulation provides standards within which regions must establish a
procedure to enable volunteers to present their views to be heard with
respect to the terms and conditions of their service on a regular basis
by appropriate ACTION officials and receive a timely response to their
concerns.
Sec. 1218.4 Standards for regional plan.
Each ACTION Domestic Regional Director shall recommend, after
consultation with representative volunteers, sponsors, and other
interested persons, the specific procedures to be established for VISTA
volunteers to present their views concerning the terms and conditions of
their service. Each proposed plan must incorporate the following
features:
(a) A free and open opportunity for volunteers to communicate their
views to appropriate ACTION regional office officials.
(b) An opportunity for all volunteers to be heard with respect to
their views in connection with the terms and conditions of their service
by a responsible ACTION regional office official, either personally, or
through democratically selected representatives, on a regular basis. The
plan must provide such an opportunity to the volunteer at least twice in
each year, and provide for notice to volunteers of the time and place of
the meeting at which they may be heard.
[[Page 52]]
(c) Appropriate provisions with respect to volunteers' or
volunteers' representatives travel expense and per diem which enable the
volunteers or their representatives to attend and present their views to
the regional office officials at scheduled meetings.
(d) Response to volunteer's views by appropriate ACTION officials in
a prescribed period of time.
(e) Summary reports by each Regional Director to the Deputy
Associate Director for VISTA and ACTION Education Programs of problems
and concerns expressed by volunteers concerning terms and conditions of
their service and action taken in response to such problems and
concerns.
(f) An opportunity for any volunteer who feels that his/her concerns
have not been properly addressed to communicate the same to the Regional
Director. Such communication shall be included in the Regional
Director's report to the Deputy Associate Director and shall be reviewed
by him.
Sec. 1218.5 Procedures for approval of plan.
Each Regional Director shall submit the plan for his region to the
Deputy Associate Director, VISTA and ACTION Education Programs for
approval.
Approval by the Deputy Associate Director for VISTA and ACTION
Education Programs of the proposed regional plan shall be based upon:
(a) The adequacy of the procedures to provide for systematic and
open communication of volunteers' views regarding terms and conditions
of their service; and
(b) The adequacy of the procedures to provide for effective and
efficient resolution of volunteers' problems or concerns regarding terms
and conditions of their service.
Sec. 1218.6 Freedom to present views.
The expression by a volunteer of his views with respect to the terms
and conditions of his service shall not be construed as reflecting on a
volunteer's standing, performance or desirability as a volunteer. ACTION
intends that its programs be conducted in an atmosphere in which
volunteers can speak freely, and frankly discuss problems. Nor shall a
volunteer who represents such views be subjected to restraint,
interference, coercion, discrimination or reprisal because of
presentation of his views.
PART 1219_COMPETITIVE SERVICE ELIGIBILITY--Table of Contents
Sec.
1219.1 Introduction.
1219.2 Policy.
1219.3 Procedure.
Authority: Secs. 415(d) and 420 of Pub. L. 93-113, 87 Stat. 412 and
414.
Source: 39 FR 42915, Dec. 9, 1974, unless otherwise noted.
Sec. 1219.1 Introduction.
Section 415(d), Title IV, of the Domestic Volunteer Service Act of
1973, Pub. L. 93-113, 87 Stat. 412, provides that VISTA Volunteers who
have successfully completed their period of service shall be eligible
for appointment in the Federal competitive service in the same manner as
Peace Corps Volunteers as prescribed in Executive Order No. 11103 (April
10, 1963). This section further provides that the Director of ACTION
shall determine who has successfully completed his period of service in
accordance with regulations he shall prescribe.
Sec. 1219.2 Policy.
Certificates of satisfactory service for the purpose of this order
shall be issued only to persons who have completed at least one full
year of service as a full-time Volunteer under part A of title I of the
Domestic Volunteer Service Act of 1973 (or title VIII of the Economic
Opportunity Act of 1964, as amended, 42 U.S.C. 2991-2994d), and who have
not been terminated for cause.
Sec. 1219.3 Procedure.
(a) The Deputy Associate Director for VISTA and Anti-Poverty
Programs will ensure that each eligible VISTA Volunteer is promptly
notified of his eligibility for competitive service, prior to the
completion of his service.
(b) The Deputy Associate Director for VISTA and Anti-Poverty
Programs (or his designee) shall, upon the request of a duly recognized
representative of any
[[Page 53]]
agency in the Executive Branch, certify the VISTA Volunteer's service on
ACTION Form A-507.
PART 1220_PAYMENT OF VOLUNTEER LEGAL EXPENSES--Table of Contents
Subpart A_General
Sec.
1220.1-1 Introduction.
Subpart B_Criminal Proceedings
1220.2-1 Full-time volunteers.
1220.2-2 Part-time volunteers.
1220.2-3 Procedure.
Subpart C_Civil and Administrative Proceedings
1220.3-1 Full-time volunteers.
1220.3-2 Part-time volunteers.
1220.3-3 Procedure.
Authority: Secs. 419 and 420 of Pub. L. 93-113, 87 Stat. 413 and
414.
Source: 40 FR 28800, July 9, 1975, unless otherwise noted.
Subpart A_General
Sec. 1220.1-1 Introduction.
Section 419 of the Domestic Volunteer Service Act of 1973 (the Act),
Pub. L. 93-113, 87 Stat. 413, authorizes the Director of ACTION to pay
expenses incurred in judicial and administrative proceedings for the
defense of full-time or part-time volunteers serving under the Act.
These include counsel fees, court costs, bail or other expenses
incidental to the volunteer's defense. For part-time volunteers, section
419 provides that the proceeding must arise directly out of the
performance of activities pursuant to the Act.
Subpart B_Criminal Proceedings
Sec. 1220.2-1 Full-time volunteers.
(a)(1) ACTION will pay all reasonable expenses for defense of full-
time volunteers up to and including arraignment in Federal, state, and
local criminal proceedings, except in cases where it is clear that the
charged offense results from conduct which is not related to his service
as a volunteer.
(2) Situations where conduct is clearly unrelated to a volunteer's
service are those that arise either:
(i) In a period prior to volunteer service,
(ii) Under circumstances where the volunteer is not at his assigned
volunteer project location, such as during periods of administrative,
vacation, or emergency leave, or
(iii) When he is at his volunteer station, but the activity or
action giving rise to the charged offense is clearly not part of, or
required by, such assignment.
(b) Reasonable expenses in criminal proceedings beyond arraignment
may be paid in cases where:
(1) The charge against the volunteer relates to his assignment or
status as a volunteer, and not his personal status or personal matters.
A charge relating to a volunteer's assignment arises out of any activity
or action which is a part of, or required by, such assignment. A charge
relating to a volunteer's status is motivated exclusively by the fact
that a defendant is a volunteer.
(2) The volunteer has not admitted a willful or knowing violation of
law, and
(3) The charge(s) is not a minor misdemeanor, such as a minor
vehicle violation for which a fine or bail forfeiture will not exceed
$100.
(c) Notwithstanding the foregoing, there may be situations in which
the criminal proceeding results from a situation which could give rise
to a civil claim under the Federal Tort Claims Act. In such situations,
the Justice Department may agree to defend the volunteer. In those
cases, unless there is a conflict between the volunteer's interest and
that of the government, ACTION will not pay for additional private
representation for the volunteer.
Sec. 1220.2-2 Part-time volunteers.
(a) With respect to a part-time volunteer, ACTION will reimburse a
sponsor for the reasonable expenses it incurs for the defense of the
volunteer in Federal, state and local criminal proceedings, including
arraignment, only under the following circumstances:
(1) The proceeding arises directly out of the volunteer's
performance of activities pursuant to the Act;
[[Page 54]]
(2) The volunteer receives, or is eligible to receive, compensation,
including allowances, stipend, or reimbursement for out-of-pocket
expenses, under an ACTION grant project; and
(3) The conditions specified in paragraphs (b) (2) and (3) in Sec.
1220.2-1 are met.
(b) In certain circumstances volunteers who are ineligible for
reimbursement of legal expenses by ACTION may be eligible for
representation under the Criminal Justice Act (18 U.S.C. 3006A).
Sec. 1220.2-3 Procedure.
(a) Immediately upon the arrest of any volunteer under circumstances
in which the payment of bail to prevent incarceration or other serious
consequences to the volunteer or the retention of an attorney prior to
arraignment is necessary and is covered under Sec. 1220.2-1 or Sec.
1220.2-2, sponsors shall immediately notify the appropriate ACTION state
office or if the state office cannot be reached, the appropriate
regional office. The regional office shall provide each sponsor with a
24-hour telephone number.
(b) Immediately after notification of the appropriate office, and
with the approval thereof, the sponsor shall advance up to $500 for the
payment of bail or such other legal expenses as are necessary prior to
arraignment to prevent the volunteer from being incarcerated. In the
event it is subsequently determined that ACTION or a sponsor is not
responsible under this policy for the volunteer's defense, any such
advance may be recovered directly from the volunteer or from allowances,
stipends, or out-of-pocket expenses which are payable or become payable
to the volunteer. In the case of a grassroots sponsor of full-time
volunteers which is not able to provide the $500 the ACTION state or
regional office shall immediately make such sum available to the
sponsor.
(c) Immediately upon receipt of notification from the sponsor, the
state or regional office shall notify the General Counsel, giving all
facts and circumstances at that time known to such office. Thereafter
the office shall cooperate with the General Counsel in making an
investigation of all surrounding facts and circumstances and shall
provide such information immediately to the General Counsel.
(d) The General Counsel shall, upon notification by the state or
regional office, determine the extent to which ACTION will provide funds
for the volunteer's defense or reimburse a sponsor for funds it spends
on the volunteer's behalf. Included in this responsibility shall be the
negotiation of fees and approval of other costs and expenses. State and
regional offices are not authorized to commit ACTION to the payment of
volunteers' legal expenses or to reimburse a sponsor except as provided
above, without the express consent of the General Counsel. Additionally,
the General Counsel shall, in cases arising directly out of the
performance of authorized project activities, ascertain whether the
services of the United States Attorney can be made available to the
volunteer.
(e) The sponsor and the state and regional office shall have a
continuing responsibility for cooperation and coordination with the
Office of General Counsel during the pendency of any such litigation,
and of notifying the General Counsel of any facts and circumstances
which come to the attention of such office or the sponsor which affects
such litigation.
Subpart C_Civil and Administrative Proceedings
Sec. 1220.3-1 Full-time volunteers.
ACTION will pay reasonable expenses incurred in the defense of full-
time volunteers in Federal, state, and local civil judicial and
administrative proceedings where:
(a) The complaint or charge against the volunteer is directly
related to his volunteer service and not to his personal activities or
obligations.
(b) The volunteer has not admitted willfully or knowingly pursuing a
course of conduct which would result in the plaintiff or complainant
initiating such a proceeding, and
(c) If the judgment sought involves a monetary award, the amount
sought exceeds $100.
Sec. 1220.3-2 Part-time volunteers.
ACTION will reimburse sponsors for the reasonable expenses
incidental to
[[Page 55]]
the defense of part-time volunteers in Federal, state and local civil
judicial and administrative proceedings where:
(a) The proceeding arises directly out of the volunteer's
performance of activities pursuant to the Act;
(b) The volunteer receives or is eligible to receive compensation,
including allowances, stipend, or reimbursement for out-of-pocket
expenses under an ACTION grant; and
(c) The conditions specified in paragraphs (b) and (c) in Sec.
1220.3-1 are met.
Sec. 1220.3-3 Procedure.
Immediately upon the receipt by a volunteer of any court papers or
administrative orders making him a part to any proceeding covered under
Sec. 1220.3-1 or Sec. 1220.3-2, the volunteer shall immediately notify
his sponsor who in turn shall notify the appropriate ACTION state
office. The procedures referred to in Sec. 1220.2-3, paragraphs (c)
through (e), shall thereafter be followed as appropriate.
PART 1222_PARTICIPATION OF PROJECT BENEFICIARIES--Table of Contents
Sec.
1222.1 Purpose.
1222.2 Applicability.
1222.3 Policy.
1222.4 Advisory group responsibilities.
1222.5 Advisory group expenses.
1222.6 Sponsor's responsibilities.
Authority: Secs. 106 and 420 of Pub. L. 93-113, 87 Stat. 398 and
414.
Source: 40 FR 57217, Dec. 8, 1975, unless otherwise noted.
Sec. 1222.1 Purpose.
The purpose of these regulations is to prescribe requirements for
the establishment of a continuing mechanism for the meaningful
participation of project beneficiaries in the planning, development, and
implementation of project activities utilizing full-time volunteers
authorized under Title I of the Domestic Volunteer Service Act of 1973,
Pub. L. 93-113. This policy specifically implements Section 106, Title
I, Pub. L. 93-113.
Sec. 1222.2 Applicability.
These regulations apply to all full-time volunteer programs and
projects under title I, Pub. L. 93-113, including grant programs.
Included in these programs are VISTA (part A), University Year for
ACTION (UYA) (part B), ACTION Cooperative Volunteers (ACV) and Program
for Local Services (PLS) (part C).
Sec. 1222.3 Policy.
(a) Each potential project sponsor shall establish an advisory group
for the project, to include substantial membership of potential project
beneficiaries or, to the extent feasible, their democratically chosen
representatives, prior to the submission of an application to ACTION for
volunteers.
(b) The term ``substantial'' means, in this case, a sufficient
number of appropriate persons to assure that the concerns and points of
view of the potential project beneficiaries are adequately presented and
considered in the deliberations of the group. The phrase ``project
beneficiaries'' means, in this case, recipients of benefits accruing
directly from project activities as conducted by ACTION Volunteers.
(c) Potential sponsoring organizations that have an established
governing, policy, or advisory group whose membership is composed of at
least 50% of members of the beneficiary population are not required to
establish a separate project advisory group for the purposes of these
regulations.
Sec. 1222.4 Advisory group responsibilities.
The advisory group shall have the following responsibilities for the
intent and purposes of these requirements:
(a) To the extent practical, assist the sponsor in the initial
planning of a new project proposal and in the planning of a continuation
project application.
(b) To review and provide written comments concerning any project
application prior to the submission of the application to ACTION. A copy
of such comments shall accompany each application to ACTION.
(c) To meet with the sponsoring organization's staff at periodic
intervals, but no less than twice per project year, for the purpose of
reviewing and commenting on the development and implementation of the
project. Such project review and commentary should
[[Page 56]]
be directed toward the adequacy of the project to meet the identified
needs of the project beneficiaries.
(d) To submit, if it so chooses, written reports and/or copies of
minutes of its meetings to the sponsor to accompany the Sponsor's
Quarterly Program Report (A-568) submitted to the appropriate ACTION
regional office.
Sec. 1222.5 Advisory group expenses.
As permitted by law, ACTION regional staff may pay for certain
incidental out-of-pocket expenses incurred by the advisory group in
connection with its responsibilities under Sec. 1222.4.
Sec. 1222.6 Sponsor's responsibilities.
The sponsor or potential sponsor shall furnish the following
evidence of the advisory group's participation in the planning,
development, and implementation of the project:
(a) Each new application to ACTION for volunteers shall contain a
statement describing how the advisory group has participated in the
planning of the project proposal. This statement shall be signed by an
authorized representative of the Advisory group (see Sec. 1222.4-2).
For continuation project applications, a written statement shall be
included which specifies how the advisory group complied with its
responsibilities under Sec. 1222.4 of these regulations. This statement
shall be signed by an authorized representative of the advisory group
(see Sec. 1222.4-2 and 3).
(b) In each Sponsor's Quarterly Program Report (A-568), the sponsor
shall include a brief statement describing the extent to which the
advisory group was involved in the continuing development and
implementation of the project.
PART 1225_VOLUNTEER DISCRIMINATION COMPLAINT PROCEDURE--Table of Contents
Subpart A_General Provisions
Sec.
1225.1 Purpose.
1225.2 Policy.
1225.3 Definitions.
1225.4 Coverage.
1225.5 Representation.
1225.6 Freedom from reprisal.
1225.7 Review of allegations of reprisal.
Subpart B_Processing Individual Complaints of Discrimination
1225.8 Precomplaint procedure.
1225.9 Complaint procedure.
1225.10 Corrective action.
1225.11 Amount of attorney fees.
Subpart C_Processing Class Complaints of Discrimination
1225.12 Precomplaint procedure.
1225.13 Acceptance, rejection, or cancellation of complaint.
1225.14 Consolidation of complaints.
1225.15 Notification and opting out.
1225.16 Investigation and adjustment of complaint.
1225.17 Agency decision.
1225.18 Notification of class members of decision.
1225.19 Corrective action.
1225.20 Claim appeals.
1225.21 Statutory rights.
Authority: Secs. 417, 402(14), 420, Pub. L. 93-113, 87 Stat. 398,
407, and 414; Sec. 5(a), Pub. L. 87-293, 75 Stat. 613; Executive Order
12137, issued May 16, 1979.
Source: 46 FR 1609, Jan. 6, 1981, unless otherwise noted.
Subpart A_General Provisions
Sec. 1225.1 Purpose.
The purpose of this part is to establish a procedure for the filing,
investigation, and administrative determination of allegations of
discrimination based on race, color, national origin, religion, age,
sex, handicap or political affiliation, which arise in connection with
the recruitment, selection, placement, service, or termination of Peace
Corps and ACTION applicants, trainees, and Volunteers for full-time
service.
Sec. 1225.2 Policy.
It is the policy of Peace Corps and ACTION to provide equal
opportunity in all its programs for all persons and to prohibit
discrimination based on race, color, national origin, religion, age,
sex, handicap or political affiliation, in the recruitment, selection,
placement, service, and termination of Peace Corps and ACTION
Volunteers. It is the policy of Peace Corps and ACTION upon determining
that such prohibited discrimination has occurred, to take all necessary
corrective action to
[[Page 57]]
remedy the discrimination, and to prevent its recurrence.
Sec. 1225.3 Definitions.
Unless the context requires otherwise, in this Part:
(a) Director means the Director of Peace Corps for all Peace Corps
applicant, trainee, or Volunteer complaints processed under this part,
or the Director of ACTION for all domestic applicant, trainee, or
Volunteer complaints processed under this part. The term shall also
refer to any designee of the respective Director.
(b) EO Director means the Director of the Equal Opportunity Division
of the Office of Compliance, ACTION. The term shall also refer to any
designee of the EO Director.
(c) Illegal discrimination means discrimination on the basis of
race, color, national origin, religion, age, sex, handicap or political
affiliation as defined in section 5(a) of the Peace Corps Act (22 U.S.C.
2504); section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000-16);
Title V of the Rehabilitation Act of 1973 (29 U.S.C. 791, et seq.); and
the Age Discrimination Act of 1975 (42 U.S.C. 6101, et seq.). Further
clarification of the scope of matters covered by this definition may be
obtained by referring to the following regulations: Sex Discrimination:
29 CFR part 1604; Religious Discrimination: 29 CFR part 1605; National
Origin Discrimination: 29 CFR part 1606; Age Discrimination: 45 CFR part
90; Handicap Discrimination: 29 CFR 1613.701 through 1613.707.
(d) Applicant means a person who has submitted to the appropriate
agency personnel a completed application required for consideration of
eligibility for Peace Corps or ACTION volunteer service. ``Applicant''
may also mean a person who alleges that the actions of agency personnel
precluded him or her from submitting such an application or any other
information reasonably required by the appropriate personnel as
necessary for a determination of the individual's eligibility for
volunteer service.
(e) Trainee means a person who has accepted an invitation issued by
Peace Corps or ACTION and has registered for Peace Corps or ACTION
training.
(f) Volunteer means a person who has completed successfully all
necessary training; met all clearance standards; has taken, if required,
the oath prescribed in either section 5(j) of the Peace Corps Act (22
U.S.C. 2504), or section 104(c) of the Volunteer Service Act of 1973, as
amended (42 U.S.C. 104(c)) and has been enrolled as a full-time
Volunteer by the appropriate agency.
(g) Complaint means a written statement signed by the complainant
and submitted to the EO Director. A complaint shall set forth
specifically and in detail:
(1) A description of the Peace Corps or ACTION management policy or
practice, if any, giving rise to the complaint;
(2) A detailed description including names and dates, if possible,
of the actions of the Peace Corps or ACTION officials which resulted in
the alleged illegal discrimination;
(3) The manner in which the Peace Corps or ACTION action directly
affected the complainant; and
(4) The relief sought.
A complaint shall be deemed filed on the date it is received by the
appropriate agency official. When a complaint does not conform with the
above definition, it shall nevertheless be accepted. The complainant
shall be notified of the steps necessary to correct the deficiencies of
the complaint. The complainant shall have 30 days from his or her
receipt of notification of the complaint defects to resubmit an amended
complaint.
(h) Counselor means an official designated by the EO Director to
perform the functions of conciliation as detailed in this part.
(i) Agent means a class member who acts for the class during the
processing of a class complaint. In order to be accepted as the agent
for a class complaint, in addition to those requirements of a complaint
found in Sec. 1225.3(g) of this part, the complaint must meet the
requirements for a class complaint as found in subpart C of these
regulations.
Sec. 1225.4 Coverage.
(a) These procedures apply to all Peace Corps or ACTION applicants,
trainees, and Volunteers throughout
[[Page 58]]
their term of service with the Peace Corps or ACTION. When an applicant,
trainee, or Volunteer makes a complaint which contains an allegation of
illegal discrimination in connection with an action that would otherwise
be processed under a grievance, early termination, or other
administrative system of the agency, the allegation of illegal
discrimination shall be processed under this part. At the discretion of
the appropriate Director, any other issues raised may be consolidated
with the discrimination complaint for processing under these
regulations. Any issues which are not so consolidated shall continue to
be processed under those procedures in which they were originally
raised.
(b) The submission of class complaints alleging illegal
discrimination as defined above will be handled in accordance with the
procedure outlined in subpart C.
Sec. 1225.5 Representation.
Any aggrieved party may be represented and assisted in all stages of
these procedures by an attorney or representative of his or her own
choosing. An aggrieved party must immediately inform the agency if
counsel is retained. Attorney fees or other appropriate relief may be
awarded in the following circumstances:
(a) Informal adjustment of a complaint. An informal adjustment of a
complaint may include an award of attorney fees or other relief deemed
appropriate by the EO Director. Where the parties agree on an adjustment
of the complaint, but cannot agree on whether attorney fees or costs
should be awarded, or on their amount, this issue may be appealed to the
appropriate Director to be determined in the manner detailed in Sec.
1225.11 of this part.
(b) Final Agency Decision. When discrimination is found, the
appropriate Director shall advise the complainant that any request for
attorney fees or costs must be documented and submitted for review
within 20 calendar days after his or her receipt of the final agency
decision. The amount of such awards shall be determined under Sec.
1225.11. In the unusual situation in which it is determined not to award
attorney fees or other costs to a prevailing complainant, the
appropriate Director in his or her final decision shall set forth the
specific reasons thereof.
Sec. 1225.6 Freedom from reprisal.
Aggrieved parties, their representatives, and witnesses will be free
from restraint, interference, coercion, discrimination, or reprisal at
any stage in the presentation and processing of a complaint, including
the counseling stage described in Sec. 1225.8 of this part, or any time
thereafter.
Sec. 1225.7 Review of allegations of reprisal.
An aggrieved party, his or her representative, or a witness who
alleges restraint, interference, coercion, discrimination, or reprisal
in connection with the presentation of a complaint under this part, may,
if covered by this part, request in writing that the allegation be
reviewed as an individual complaint of discrimination subject to the
procedures described in Subpart B or that the allegation be considered
as an issue in the complaint at hand.
Subpart B_Processing Individual Complaints of Discrimination
Sec. 1225.8 Precomplaint procedure.
(a) An aggrieved person who believes that he or she has been subject
to illegal dicrimination shall bring such allegations to the attention
of the appropriate Counselor within 30 days of the alleged
discrimination to attempt to resolve them. The process for notifying the
appropriate Counselor is the following:
(1) Aggrieved applicants, trainees or Volunteers who have not
departed for overseas assignments, or who have returned to Washington
for any administrative reason shall direct their allegations to the EO
Director for assignment to an appropriate Counselor.
(2) Aggrieved trainees or Volunteers overseas shall direct their
allegations to the designated Counselor for that post.
(3) Aggrieved applicants, trainees, and Volunteers applying for, or
enrolled in ACTION domestic programs shall direct their allegations to
the designated Counselor for that Region.
[[Page 59]]
(b) Upon receipt of the allegation, the Counselor or designee shall
make whatever inquiry is deemed necessary into the facts alleged by the
aggrieved party and shall counsel the aggrieved party for the purpose of
attempting an informal resolution agreeable to all parties. The
Counselor will keep a written record of his or her activities which will
be submitted to the EO Director if a formal complaint concerning the
matter is filed.
(c) If after such inquiry and counseling an informal resolution to
the allegation is not reached, the Counselor shall notify the aggrieved
party in writing of the right to file a complaint of discrimination with
the EO Director within 15 calendar days of the aggrieved party's receipt
of the notice.
(d) The Counselor shall not reveal the identity of the aggrieved
party who has come to him or her for consultation, except when
authorized to do so by the aggrieved party. However, the identity of the
aggrieved party may be revealed once the agency has accepted a complaint
of discrimination from the aggrieved party.
Sec. 1225.9 Complaint procedure.
(a) EO Director. (1) The EO Director must accept a complaint if the
process set forth above has followed, and the complaint states a charge
of illegal discrimination. The agency will extend the time limits set
herein (a) when the complainant shows that he or she was not notified of
the time limits and was not otherwise aware of them, or (b) the
complainant shows that he or she was prevented by circumstances beyond
his or her control from submitting the matter in a timely fashion, or
(c) for other reasons considered sufficiently by the agency. At any time
during the complaint procedure, the EO Director may cancel a complaint
because of failure of the aggrieved party to prosecute the complaint. If
the complaint is rejected for failure to meet one or more of the
requirements set out in the procedure outlined in Sec. 1225.8 or is
cancelled, the EO Director shall inform the aggrieved party in writing
of this Final Agency Decision; that the Peace Corps or ACTION will take
no further action; and of the right, to file a civil action as described
in Sec. 1225.21 of this part.
(2) Upon acceptance of the complaint and receipt of the Counselor's
report, the EO Director shall provide for the prompt investigation of
the complaint. Whenever possible, the person assigned to investigate the
complaint shall occupy a position in the agency which is not, directly
or indirectly, under the jurisdiction of the head of that part of the
agency in which the complaint arose. The investigation shall include a
thorough review of the circumstances under which the alleged
discrimination occurred, and any other circumstances which may
constitute, or appear to constitute discrimination against the
complainant. The investigator shall compile an investigative file, which
includes a summary of the investigation, recommended findings of fact
and a recommended resolution of the complaint. The investigator shall
forward the investigative file to the EO Director and shall provide the
complainant with a copy.
(3) The EO Director shall review the complaint file including any
additional statements provided by the complainant, make findings of
fact, and shall offer an adjustment of the complaint if the facts
support the complaint. If the proposed adjustment is agreeable to all
parties, the terms of the adjustment shall be reduced to writing, signed
by both parties, and made part of the complaint file. A copy of the
terms of the adjustment shall be provided the complainant. If the
proposed adjustment of the complaint is not acceptable to the
complainant, or the EO Director determines that such an offer is
inappropriate, the EO Director shall forward the complaint file with a
written notification of the findings of facts, and his or her
recommendation of the proposed disposition of the complaint to the
appropriate Director. The aggrieved party shall receive a copy of the
notification and recommendation and shall be advised of the right to
appeal the recommended disposition to the appropriate Director. Within
ten (10) calendar days of receipt of such notice, the complainant may
submit his or her appeal of the recommended disposition to the
appropriate Director.
[[Page 60]]
(b) Appeal to Director. If no timely notice of appeal is received
from the aggrieved party, the appropriate Director or designee may adopt
the proposed disposition as the Final Agency Decision. If the aggrieved
party appeals, the appropriate Director or designee, after review of the
total complaint file, shall issue a decision to the aggrieved party. The
decision of the appropriate Director shall be in writing, state the
reasons underlying the decision, shall be the Final Agency Decision,
shall inform the aggrieved party of the right to file a civil action as
described in Sec. 1225.21 of this part, and, if appropriate, designate
the procedure to be followed for the award of attorney fees or costs.
Sec. 1225.10 Corrective action.
When it has been determined by Final Agency Decision that the
aggrieved party has been subjected to illegal discrimination, the
following corrective actions may be taken:
(a) Selection as a Trainee for aggrieved parties found to have been
denied selection based on prohibited discrimination.
(b) Reappointment to Volunteer service for aggrieved parties found
to have been early-terminated as a result of prohibited discrimination.
To the extent possible, a Volunteer will be placed in the same position
previously held. However, reassignment to the specific country of prior
service, or to the specific position previously held, is contingent on
several programmatic considerations such as the continued availability
of the position, or program in that country, and acceptance by the host
country of such placement. If the same position is deemed to be no
longer available, the aggrieved party will be offered a reassignment to
a position in as similar circumstances to the position previously held,
or to resign from service for reasons beyond his or her control. Such a
reassignment may require both additional training and an additional two
year commitment to volunteer service.
(c) Provision for reasonable attorney fees and other costs incurred
by the aggrieved party.
(d) Such other relief as may be deemed appropriate by the Director
of Peace Corps or ACTION.
Sec. 1225.11 Amount of attorney fees.
(a) When a decision of the agency provides for an award of
attorney's fees or costs, the complainant's attorney shall submit a
verified statement of costs and attorney's fees as appropriate, to the
agency within 20 days of receipt of the decision. A statement of
attorney's fees shall be accompanied by an affidavit executed by the
attorney of record itemizing the attorney's charges for legal services.
Both the verified statement and the accompanying affidavit shall be made
a part of the complaint file. The amount of attorney's fees or costs to
be awarded the complainant shall be determined by agreement between the
complainant, the complainant's representative and the appropriate
Director. Such agreement shall immediately be reduced to writing. If the
complainant, the representative and the agency cannot reach an agreement
on the amount of attorney's fees or costs within 20 calendar days of
receipt of the verified statement and accompanying affidavit, the
appropriate Director shall issue a decision determining the amount of
attorney fees or costs within 30 calendar days of receipt of the
statement and affidavit. Such decision shall include the specific
reasons for determining the amount of the award.
(b) The amount of attorney's fees shall be made in accordance with
the following standards: The time and labor required, the novelty and
difficulty of the questions, the skills requisite to perform the legal
service properly, the preclusion of other employment by the attorney due
to acceptance of the case, the customary fee, whether the fee is fixed
or contingent, time limitation imposed by the client or the
circumstances, the amount involved and the results obtained, the
experience, reputation, and ability of the attorney, the undesirability
of the case, the nature and length of the professional relationship with
the client, and the awards in similar cases.
[[Page 61]]
Subpart C_Processing Class Complaints of Discrimination
Sec. 1225.12 Precomplaint procedure.
An applicant, trainee or Volunteer who believes that he or she is
among a group of present or former Peace Corps or ACTION Volunteers,
trainees, or applicants for volunteer service who have been illegally
discriminated against and who wants to be an agent for the class shall
follow those precomplaint procedures outlined in Sec. 1225.8 of this
part.
Sec. 1225.13 Acceptance, rejection or cancellation of complaint.
(a) Upon receipt of a class complaint, the Counselor's report, and
any other information pertaining to timeliness or other relevant
circumstances related to the complaint, the EO Director shall review the
file to determine whether to accept or reject the complaint, or a
portion thereof, for any of the following reasons:
(1) It was not timely filed;
(2) It consists of an allegation which is identical to an allegation
contained in a previous complaint filed on behalf of the same class
which is pending in the agency or which has been resolved or decided by
the agency;
(3) It is not within the purview of this subpart;
(4) The agent failed to consult a Counselor in a timely manner;
(5) It lacks specificity and detail;
(6) It was not submitted in writing or was not signed by the agent;
(7) It does not meet the following prerequisites.
(i) The class is so numerous that a consolidated complaint of the
members of the class is impractical;
(ii) There are questions of fact common to the class;
(iii) The claims of the agent of the class are representative of the
claims of the class;
(iv) The agent of the class, or his or her representative will
fairly and adequately protect the interest of the class.
(b) If an allegation is not included in the Counselor's report, the
EO Director shall afford the agent 15 calendar days to explain whether
the matter was discussed and if not, why he or she did not discuss the
allegation with the Counselor. If the explanation is not satisfactory,
the EO Director may decide to reject the allegation. If the explanation
is satisfactory, the EO Director may require further counseling of the
agent.
(c) If an allegation lacks specificity and detail, or if it was not
submitted in writing or not signed by the agent, the EO Director shall
afford the agent 30 days from his or her receipt of notification of the
complaint defects to resubmit an amended complaint. The EO Director may
decide that the agency reject the complaint if the agent fails to
provide such information within the specified time period. If the
information provided contains new allegations outside the scope of the
complaint, the EO Director must advise the agent how to proceed on an
individual or class basis concerning these allegations.
(d) The EO Director may extend the time limits for filing a
complaint and for consulting with a Counselor when the agent, or his or
her representative, shows that he or she was not notified of the
prescribed time limits and was not otherwise aware of them or that he or
she was prevented by circumstances beyond his or her control from acting
within the time limit.
(e) When appropriate, the EO Director may determine that a class be
divided into subclasses and that each subclass be treated as a class,
and the provisions of this section then shall be construed and applied
accordingly.
(f) The EO Director may cancel a complaint after it has been
accepted because of failure of the agent to prosecute the complaint.
This action may be taken only after:
(1) The EO Director has provided the agent a written request,
including notice of proposed cancellation, that he or she provide
certain information or otherwise proceed with the complaint; and
(2) Within 30 days of his or her receipt of the request.
(g) An agent must be informed by the EO Director in a request under
paragraph (b) or (c) of this section that his or her complaint may be
rejected if the information is not provided.
[[Page 62]]
Sec. 1225.14 Consolidation of complaints.
The EO Director may consolidate the complaint if it involves the
same or sufficiently similar allegations as those contained in a
previous complaint filed on behalf of the same class which is pending in
the agency or which has been resolved or decided by the agency.
Sec. 1225.15 Notification and opting out.
(a) Upon acceptance of a class complaint, the agency, within 30
calendar days, shall use reasonable means, such as delivery, mailing,
distribution, or posting, to notify all class members of the existence
of the class complaint.
(b) A notice shall contain:
(1) The name of the agency or organizational segment thereof, its
location and the date of acceptance of the complaint;
(2) A description of the issues accepted as part of the class
complaint;
(3) An explanation that class members may remove themselves from the
class by notifying the agency within 30 calendar days after issuance of
the notice; and
(4) An explanation of the binding nature of the final decision or
resolution of the complaint.
Sec. 1225.16 Investigation and adjustment of complaint.
The complaint shall be processed promptly after it has been
accepted. Once a class complaint has been accepted, the procedure
outlined in Sec. 1225.9 of this part shall apply.
Sec. 1225.17 Agency decision.
(a) If an adjustment of the complaint cannot be made the procedures
outlined in Sec. 1225.9 shall be followed by the EO Director except
that any notice required to be sent to the aggrieved party shall be sent
to the agent of the class or his or her representative.
(b) The Final Agency Decision on a class complaint shall be binding
on all members of the class.
Sec. 1225.18 Notification of class members of decision.
Class members shall be notified by the agency of the final agency
decision and corrective action, if any, using at the minimum, the same
media employed to give notice of the existence of the class complaint.
The notice, where appropriate, shall include information concerning the
rights of class members to seek individual relief and of the procedures
to be followed. Notice shall be given by the agency within ten (10)
calendar days of the transmittal of its decision to the agent.
Sec. 1225.19 Corrective action.
(a) When discrimination is found, Peace Corps or ACTION must take
appropriate action to eliminate or modify the policy or practice out of
which such discrimination arose, and provide individual corrective
action to the agent and other class members in accordance with Sec.
1225.10 of this part.
(b) When discrimination is found and a class member believes that
but for that discrimination he or she would have been accepted as a
Volunteer or received some other volunteer service benefit, the class
member may file a written claim with the EO Director within thirty (30)
calendar days of notification by the agency of its decision.
(c) The claim must include a specific, detailed statement showing
that the claimant is a class member who was affected by an action or
matter resulting from the discriminatory policy or practice which arose
not more than 30 days preceding the filing of the class complaint.
(d) The agency shall attempt to resolve the claim within sixty (60)
calendar days after the date the claim was postmarked, or, in the
absence of a postmark, within sixty (60) calendar days after the date it
was received by the EO Director.
Sec. 1225.20 Claim appeals.
(a) If the EO Director and claimant do not agree that the claimant
is a member of the class, or upon the relief to which the claimant is
entitled, the EO Director shall refer the claim, with recommendations
concerning it to the appropriate Director for Final Agency Decision and
shall so notify the claimant. The class member may submit written
evidence to the appropriate Director concerning his or her status as a
member of the class. Such evidence must be submitted no later than ten
[[Page 63]]
(10) calendar days after receipt of referral.
(b) The appropriate Director shall decide the issue within thirty
(30) days of the date of referral by the EO Director. The claimant shall
be informed in writing of the decision and its basis and that it will be
the Final Agency Decision on the issue.
Sec. 1225.21 Statutory rights.
(a) A Volunteer, trainee, or applicant is authorized to file a civil
action in an appropriate U.S. District Court:
(1) Within thirty (30) calendar days of his or her receipt of notice
of final action taken by the agency.
(2) After one hundred eighty (180) calendar days from the date of
filing a complaint with the agency if there has been no final agency
action.
(b) For those complaints alleging discrimination that occur outside
the United States, the U.S. District Court for the District of Columbia
shall be deemed the appropriate forum.
PART 1226_PROHIBITIONS ON ELECTORAL AND LOBBYING ACTIVITIES--Table of Contents
Subpart A_General Provisions
Sec.
1226.1 Purpose.
1226.2 Scope.
1226.3 Definitions.
Subpart B_Sponsoring Organization
1226.4 General.
1226.5 Electoral, voter registration, and other activities.
Subpart C_Volunteer Activities
1226.6 General.
1226.7 Scope.
1226.8 Prohibited activities.
1226.9 Exceptions.
1226.10 Hatch Act restrictions.
1226.11 Part time volunteers.
Subpart D_Sponsor Employee Activities
1226.12 Sponsor employees.
1226.13 Obligation of sponsors.
Authority: Secs. 403, 415(b), Pub. L. 93-113, 87 Stat. 408, 411-412.
Source: 46 FR 8522, Jan. 27, 1981, unless otherwise noted.
Subpart A_General Provisions
Sec. 1226.1 Purpose.
This part implements provisions of the Domestic Volunteer Service
Act, 1973, 87 Stat. 394, Pub. L. 93-113, as amended, hereinafter
referred to as the Act, pertaining to the prohibited use of Federal
funds or the involvement of agency programs and volunteers in electoral
and lobbying activities. These regulations are designed to define and
clarify the nature and scope of prohibited activities to ensure that
programs under the Act and volunteer activities are conducted within the
statutory bounds established by the Act. The penalties for violation of
the regulations are also prescribed. The statutory source of the
prohibitions upon electoral and lobbying activities is section 403 (a)
and (b) of the Act. Rules applying to the Hatch Act (Title III of
chapter 73, title 5, United States Code) to full time and certain part
time volunteers, as required by section 415(b) of the Act, are also set
forth herein.
Sec. 1226.2 Scope.
This part applies, except where otherwise noted, to all full time
and part time volunteers serving in a program authorized by the Act,
including VISTA, Service Learning and the Older American Volunteer
Programs. It also applies to employees of sponsoring organizations,
whose salaries, or other compensation, are paid, in whole or in part,
with agency funds.
Sec. 1226.3 Definitions.
(a) The Act means the Domestic Volunteer Service Act of 1973, as
amended, Pub. L. 93-113 (42 U.S.C. 4951 et seq.).
(b) Assistance means funds, volunteers or volunteer training, which
is paid for from funds appropriated for the purpose of supporting
activities under the Act, and includes locally provided funds required
by law, regulation or policy as a local contribution to activities
authorized by the Act.
(c) Full time when used in the context of volunteer service, means
service of not less than 35 hours per week.
(d) Part time when used in the context of volunteer service, means
service that is less than full time.
[[Page 64]]
(e) Recipient or sponsor organization means any organization that
receives assistance under the Act.
(f) Volunteer means an individual enrolled for service in a program
or project that is authorized by or which receives assistance under the
Act.
(g) Legislative body includes the United States Congress, State and
Territorial Legislatures and locally elected or appointed bodies with
the authority to enact laws.
(h) Public office includes any Federal, State, local elective, or
party office.
(i) Party office means an elective position in a national, state or
local organization or committees or convention of such organization,
which has, as a principal purpose, support or opposition to candidates
for public office.
(j) Legislation means bills, resolutions, amendments, nominations
and other matters pending or proposed in a legislative body and includes
any other matter which may be the subject of action by the legislative
body.
Subpart B_Sponsoring Organization
Sec. 1226.4 General.
Under section 403 of the Act, volunteer programs may not be
conducted in a manner which supports or results in the identification of
such programs with prohibited activities. This section prescribes the
nature and extent of involvement in such activity by an organization
which would preclude the assignment of volunteers to the organization.
Sec. 1226.5 Electoral, voter registration, and other activities.
Volunteers or other assistance, in any program under the Act shall
not be assigned or provided to an organization if a principal purpose or
activity of the organization includes any of the following activities:
(a) Electoral Activities. Any activity designed to influence the
outcome of elections to any public office, such as:
(1) Actively campaigning for or against or supporting candidates for
public office;
(2) Raising, soliciting or collecting funds for candidates for
public office;
(3) Preparing, distributing or providing funds for campaign
literature for candidates, including leaflets pamphlets, and material
designed for the print or electronic media;
(b) Voter Registration Activities. Any voter registration activity,
such as
(1) Providing transportation of individuals to voter registration
sites;
(2) Providing assistance to individuals in the process of
registering to vote, including determinations of eligibility;
(3) Disseminating official voter registration material.
(c) Transportation to the Polls. Providing voters or prospective
voters with transportation to the polls or raising, soliciting or
collecting funds for such activity.
(d) Any program sponsor which, subsequent to the receipt of any
federal assistance under the Act, makes as one of its principal purposes
or activities any of the activities described in Sec. 1226.5 hereof
shall be subject to the suspension or termination of such assistance, as
provided in 45 CFR part 1206.
Subpart C_Volunteer Activities
Sec. 1226.6 General.
(a) All volunteers, full and part time, are subject to the
prohibitions on expenditure of federal funds for partisan and
nonpartisan electoral activities, voter registration activities and
transportation of voters to the polls, and efforts to influence the
passage or defeat of legislation, as contained in section 403 of the
Act.
(b) Full time volunteers, and certain part time volunteers as
specified herein, are also subject to the restrictions in subchapter
III, chapter 73 of title 5, United States Code, commonly referred to as
the Hatch Act, as provided in section 415(b) of the Act.
Sec. 1226.7 Scope.
The provisions in this subpart are applicable to full time
volunteers as defined in Sec. 1226.3(c), and to such part time
volunteers as may be otherwise specified herein. Full time volunteers
are deemed to be acting in their capacity as volunteers:
[[Page 65]]
(a) When they are actually engaged in their volunteer assignments.
VISTA volunteers and other full time volunteers who are required to
serve without regard to regular working hours are presumed to be
actually engaged in their volunteer assignments at all times, except
during periods of authorized leave; or
(b) Whenever they represent themselves, or may reasonably be
perceived by others, to be performing as a volunteer.
Sec. 1226.8 Prohibited activities.
(a) Electoral Activity. Volunteers shall not engage in any activity
which may, directly or indirectly, affect or influence the outcome of
any election to public office. Volunteers are prohibited from engaging
in activities such as:
(1) Any activity in support of, or in opposition to a candidate for
election to public office in a partisan or nonpartisan election;
(2) Participating in the circulation of petitions, or the gathering
of signatures on nominating petitions or similar documents for
candidates for public office.
(3) Raising, soliciting, or collecting funds for a candidate for
public office;
(4) Preparing, distributing or providing funds for campaign material
for candidates, including leaflets, pamphlets, brochures and material
designed for the print or electronic media;
(5) Organizing political meetings or forums;
(6) Canvassing voters on behalf of a candidate for public office;
(7) Raising, soliciting or collecting funds for groups that engage
in any of the activities described in paragraphs (a) (1) through (6) of
this section.
(b) Voter Registration. Volunteers shall not engage in any voter
registration activity, including:
(1) Providing transportation of individuals to voter registration
sites;
(2) Providing assistance to individuals in the process of
registering to vote, including determinations of eligibility;
(3) The dissemination of official voter registration materials; or
(4) Raising, soliciting or collecting funds to support activities
described in paragraphs (b) (1) through (3) of this section.
(c) Transportation to the Polls. Volunteers shall not engage in any
activity to provide voters or prospective voters with transportation to
the polls, nor shall they collect, raise, or solicit funds to support
such activity, including securing vehicles for such activity.
(d) Efforts to Influence Legislation. Except as provided in Sec.
1226.9, volunteers shall not engage in any activity for the purpose of
influencing the passage or defeat of legislation or any measures on the
ballot at a general or special election. For example, volunteers shall
not:
(1) Testify or appear before legislative bodies in regard to
proposed or pending legislation;
(2) Make telephone calls, write letters, or otherwise contact
legislators or legislative staff, concerning proposed or pending
legislation for the purpose of influencing the passage or defeat of such
legislation;
(3) Draft legislation;
(4) Prepare legislative testimony;
(5) Prepare letters to be mailed by third parties to members of
legislative bodies concerning proposed or pending legislation;
(6) Prepare or distribute any form of material, including pamphlets,
newspaper columns, and material designed for either the print or
electronic media, which urges recipients to contact their legislator or
otherwise seek passage or defeat of legislation;
(7) Raise, collect or solicit funds to support efforts to affect the
passage or defeat of legislation;
(8) Engage in any of the activities set forth in paragraphs (d) (1)
through (7) of this section for the purpose of influencing executive
action in approving or vetoing legislation.
(9) Circulate petitions, gather signatures on petitions, or urge or
organize others to do so, which seek to have measures placed on the
ballot at a general or special election.
(10) Engage in any of the activities enumerated in paragraphs (d)
(1) through (9) of this section in regard to the passage or defeat of
any measure on the ballot in a general or special election.
[[Page 66]]
Sec. 1226.9 Exceptions.
(a) A volunteer may draft, review, testify or make representations
to a legislative body regarding a legislative measure upon request of
the legislative body, a committee, or a member thereof, provided that:
(1) The request to draft, review, testify or make representations is
in writing, addressed to the volunteer or the organization to which the
volunteer is assigned or placed, and signed by a member or members of
the legislative body.
(2) The request states the type of representation or assistance
requested and the issue to be addressed.
(3) The volunteer or the program sponsor provides a copy of such
request to the State Director.
(b) The volunteer may draft, review, testify, or make a written
representation to a legislative body regarding an authorization or
appropriation measure directly affecting the operation of the project or
program to which he or she is assigned: Provided:
(1) The sponsor organization provides notification to the State
Director on a quarterly basis of all activity occurring pursuant to this
exception.
(2) The legislative measure relates to the funding of the project or
program or affects the existence or basic structure of the project or
program.
(c) Notwithstanding the foregoing exceptions, any activity by a
volunteer pursuant to paragraph (b) (1) or (2) of this section shall be
incidental to his or her regular work assignment.
Sec. 1226.10 Hatch Act restrictions.
(a) In addition to the prohibitions described above, full time
volunteers are subject to the Hatch Act, subchapter III, of chapter 73,
title 5, United States Code. Full time volunteers shall not, directly or
indirectly, actively participate in political management or in political
campaigns. All volunteers retain the right to vote as they choose and to
express their personal opinions on political issues or candidates.
Examples of prohibited activities, include, but are not limited to,
(1) Candidacy for or service as a delegate or alternate to any
political convention or service as an officer or employee thereof.
(2) Acting as an officer of a primary meeting or caucus, addressing,
making motions, preparing or presenting resolutions, representing
others, or otherwise taking part in such meetings or caucuses.
(3) Organizing or conducting a political meeting or rally on any
political matter.
(4) Holding office as a precinct or ward leader or representative,
or service on any committee of a political party. It is not necessary
that the service of the volunteer itself be political in nature to fall
within the prohibition.
(5) Organizing a political club, being an officer of such a club,
being a member of any of its committees, or representing the members of
a political club in meetings or conventions.
(6) Soliciting, collecting, receiving, disbursing or otherwise
handling contributions made for political purposes.
(7) Selling or soliciting pledges for dinner tickets or other
activities of political organizations or candidates, or for their
benefit.
(8) Distributing campaign literature, badges, buttons,
bumperstickers or posters.
(9) Publishing or being editorially connected with a newspaper or
other publication generally known as partisan from a political
standpoint.
(10) Writing for publication or publishing any letter or article,
signed or unsigned, soliciting votes in favor of or in opposition to any
political party, candidate or faction.
(11) Soliciting votes, helping get out the vote, acting as a
checker, watcher or challenger for any party or faction, transporting
voters to or from the polls, or transporting candidates on canvassing or
speaking tours.
(12) Participation in or organizing a political parade.
(13) Initiating nominating petitions or acting as a canvasser or
witness on such petitions.
(14) Being a candidate for nomination or election to a National,
State, or local office.
(b) Hatch Act restrictions apply to full time volunteers at all
times during their service, including off-duty hours, leave, holidays
and vacations.
[[Page 67]]
Sec. 1226.11 Part time volunteers.
(a) The provisions in this section are applicable to part time
volunteers, as defined in Sec. 1226.3(d). There are two categories of
part time volunteers:
(1) Those enrolled for periods of service of at least twenty (20)
hours per week for not less than twenty-six (26) consecutive weeks, as
authorized under title I, part C of the Act, and
(2) All other part time volunteers, including Senior Companions,
Foster Grandparents and Retired Senior Volunteers.
(b) All part time volunteers are subject to the restrictions
described in Sec. 1226.8 (a), (b), (c) and (d) and the exceptions in
Sec. 1226.9:
(1) When they are engaged in their volunteer assignments, in
training activities, or other related activities supported by ACTION
funds, or
(2) Whenever they represent themselves as ACTION volunteers, or may
reasonably be perceived by others to be performing as volunteers.
(c) The restrictions described in Sec. 1226.10, pertaining to the
Hatch Act, are applicable to volunteers enrolled for periods of service
of at least 20 hours per week for not less than 26 consecutive weeks, as
authorized under title I, part C of the Act:
(1) At all times in any day on which they serve as volunteers, or
when engaged in activities related to their volunteer assignments, such
as training; or
(2) Whenever they represent themselves as volunteers or may
reasonably be perceived by others to be performing as volunteers.
Subpart D_Sponsor Employee Activities
Sec. 1226.12 Sponsor employees.
Sponsor employees whose salaries or other compensation are paid, in
whole or in part, with agency funds are subject to the restrictions
described in Sec. 1226.8 (a), (b), (c) and (d) and the exceptions in
Sec. 1226.9:
(a) Whenever they are engaged in an activity which is supported by
ACTION funds; or
(b) Whenever they identify themselves as acting in their capacity as
an official of a project which receives ACTION funds, or could
reasonably be perceived by others as acting in such capacity.
Sec. 1226.13 Obligations of sponsors.
(a) It shall be the obligation of program sponsors to ensure that
they:
(1) Fully understand the restrictions on volunteer activity set
forth herein;
(2) Provide training to volunteers on the restrictions and ensure
that all other training materials used in training volunteers are fully
consistent with these restrictions;
(3) Monitor on a continuing basis the activity of volunteers for
compliance with this provision;
(4) Report all violations, or questionable situations, immediately
to the State Director.
(b) Failure of a sponsor to meet the requirements set forth in
paragraph (a) of this section, or a violation of the rules contained
herein by either the sponsor, the sponsor's employees subject to Sec.
1226.12 or the volunteers assigned to the sponsor, at any time during
the course of the grant may be deemed to be a material failure to comply
with the terms and conditions of the grant as that term is used in 45
CFR 1206.1 regarding suspension and termination of assistance or a
violation of the Project Memorandum of Agreement, as applicable. The
sponsor shall be subject to the procedures and penalties contained in 45
CFR 1206.1.
(c) Violation by a volunteer of any of the rules and regulations set
forth herein may be cause for suspension or termination as set forth in
45 CFR 1213.5-5(2) or other disciplinary action.
PART 1230_NEW RESTRICTIONS ON LOBBYING--Table of Contents
Subpart A_General
Sec.
1230.100 Conditions on use of funds.
1230.105 Definitions.
1230.110 Certification and disclosure.
Subpart B_Activities by Own Employees
1230.200 Agency and legislative liaison.
1230.205 Professional and technical services.
1230.210 Reporting.
[[Page 68]]
Subpart C_Activities by Other Than Own Employees
1230.300 Professional and technical services.
Subpart D_Penalties and Enforcement
1230.400 Penalties.
1230.405 Penalty procedures.
1230.410 Enforcement.
Subpart E_Exemptions
1230.500 Secretary of Defense.
Subpart F_Agency Reports
1230.600 Semi-annual compilation.
1230.605 Inspector General report.
Appendix A to Part 1230--Certification Regarding Lobbying
Appendix B to Part 1230--Disclosure Form To Report Lobbying
Authority: Section 319, Pub. L. 101-121 (31 U.S.C. 1352); Pub. L.
93-113; 42 U.S.C. 4951, et seq.; 42 U.S.C. 5060.
Source: 55 FR 6737, 6755, Feb. 26, 1990, unless otherwise noted.
Cross reference: See also Office of Management and Budget notice
published at 54 FR 52306, December 20, 1989.
Subpart A_General
Sec. 1230.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative ageement to pay any person
for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with any of the following
covered Federal actions: the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal
contract, grant, loan, or cooperative agreement shall file with that
agency a certification, set forth in Appendix A, that the person has not
made, and will not make, any payment prohibited by paragraph (a) of this
section.
(c) Each person who requests or receives from an agency a Federal
contract, grant, loan, or a cooperative agreement shall file with that
agency a disclosure form, set forth in Appendix B, if such person has
made or has agreed to make any payment using nonappropriated funds (to
include profits from any covered Federal action), which would be
prohibited under paragraph (a) of this section if paid for with
appropriated funds.
(d) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a statement, set forth in Appendix A, whether that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
(e) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a disclosure form, set forth in Appendix B, if that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
Sec. 1230.105 Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal
executive departments and agencies as well as independent regulatory
commissions and Government corporations, as defined in 31 U.S.C.
9101(1).
(b) Covered Federal action means any of the following Federal
actions:
(1) The awarding of any Federal contract;
(2) The making of any Federal grant;
(3) The making of any Federal loan;
(4) The entering into of any cooperative agreement; and,
(5) The extension, continuation, renewal, amendment, or modification
of
[[Page 69]]
any Federal contract, grant, loan, or cooperative agreement.
Covered Federal action does not include receiving from an agency a
commitment providing for the United States to insure or guarantee a
loan. Loan guarantees and loan insurance are addressed independently
within this part.
(c) Federal contract means an acquisition contract awarded by an
agency, including those subject to the Federal Acquisition Regulation
(FAR), and any other acquisition contract for real or personal property
or services not subject to the FAR.
(d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
(e) Federal grant means an award of financial assistance in the form
of money, or property in lieu of money, by the Federal Government or a
direct appropriation made by law to any person. The term does not
include technical assistance which provides services instead of money,
or other assistance in the form of revenue sharing, loans, loan
guarantees, loan insurance, interest subsidies, insurance, or direct
United States cash assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided
in section 4 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions
of Indian tribes in that Act.
(h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
(i) Loan guarantee and loan insurance means an agency's guarantee or
insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
(k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
(1) An individual who is appointed to a position in the Government
under title 5, U.S. Code, including a position under a temporary
appointment;
(2) A member of the uniformed services as defined in section 101(3),
title 37, U.S. Code;
(3) A special Government employee as defined in section 202, title
18, U.S. Code; and,
(4) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act, title 5, U.S. Code
appendix 2.
(l) Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or employee for
work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
(n) Reasonable payment means, with respect to perfessional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier,
and subgrantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
[[Page 70]]
(p) Regularly employed means, with respect to an officer or employee
of a person requesting or receiving a Federal contract, grant, loan, or
cooperative agreement or a commitment providing for the United States to
insure or guarantee a loan, an officer or employee who is employed by
such person for at least 130 working days within one year immediately
preceding the date of the submission that initiates agency consideration
of such person for receipt of such contract, grant, loan, cooperative
agreement, loan insurance commitment, or loan guarantee commitment. An
officer or employee who is employed by such person for less than 130
working days within one year immediately preceding the date of the
submission that initiates agency consideration of such person shall be
considered to be regularly employed as soon as he or she is employed by
such person for 130 working days.
(q) State means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, a territory or possession of
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and
powers.
Sec. 1230.110 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form,
if required, with each submission that initiates agency consideration of
such person for:
(1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form,
if required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
(2) A Federal loan or a commitment providing for the United States
to insure or guarantee a loan exceeding $150,000,
unless such person previously filed a certification, and a disclosure
form, if required, under paragraph (a) of this section.
(c) Each person shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that requires
disclosure or that materially affects the accuracy of the information
contained in any disclosure form previously filed by such person under
paragraphs (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action; or
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted
to influence or attempt to influence a covered Federal action.
(d) Any person who requests or receives from a person referred to in
paragraph (a) or (b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal
contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any
tier under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a
Federal loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a
Federal cooperative agreement,
shall file a certification, and a disclosure form, if required, to the
next tier above.
(e) All disclosure forms, but not certifications, shall be forwarded
from tier to tier until received by the person referred to in paragraph
(a) or (b) of this section. That person shall forward all disclosure
forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e)
of this section shall be treated as a material representation of fact
upon which all receiving tiers shall rely. All liability arising from an
erroneous representation shall be borne solely by the tier filing that
representation and shall not be shared by any tier to which the
erroneous representation is forwarded. Submitting an erroneous
certification
[[Page 71]]
or disclosure constitutes a failure to file the required certification
or disclosure, respectively. If a person fails to file a required
certification or disclosure, the United States may pursue all available
remedies, including those authorized by section 1352, title 31, U.S.
Code.
(g) For awards and commitments in process prior to December 23,
1989, but not made before that date, certifications shall be required at
award or commitment, covering activities occurring between December 23,
1989, and the date of award or commitment. However, for awards and
commitments in process prior to the December 23, 1989 effective date of
these provisions, but not made before December 23, 1989, disclosure
forms shall not be required at time of award or commitment but shall be
filed within 30 days.
(h) No reporting is required for an activity paid for with
appropriated funds if that activity is allowable under either subpart B
or C.
Subpart B_Activities by Own Employees
Sec. 1230.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in Sec.
1230.100 (a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement if
the payment is for agency and legislative liaison activities not
directly related to a covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any
information specifically requested by an agency or Congress is allowable
at any time.
(c) For purposes of paragraph (a) of this section, the following
agency and legislative liaison activities are allowable at any time only
where they are not related to a specific solicitation for any covered
Federal action:
(1) Discussing with an agency (including individual demonstrations)
the qualities and characteristics of the person's products or services,
conditions or terms of sale, and service capabilities; and,
(2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(d) For purposes of paragraph (a) of this section, the following
agencies and legislative liaison activities are allowable only where
they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation of
a covered Federal action;
(2) Technical discussions regarding the preparation of an
unsolicited proposal prior to its official submission; and,
(3) Capability presentations by persons seeking awards from an
agency pursuant to the provisions of the Small Business Act, as amended
by Pub. L. 95-507 and other subsequent amendments.
(e) Only those activities expressly authorized by this section are
allowable under this section.
Sec. 1230.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec.
1230.100 (a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement or
an extension, continuation, renewal, amendment, or modification of a
Federal contract, grant, loan, or cooperative agreement if payment is
for professional or technical services rendered directly in the
preparation, submission, or negotiation of any bid, proposal, or
application for that Federal contract, grant, loan, or cooperative
agreement or for meeting requirements imposed by or pursuant to law as a
condition for receiving that Federal contract, grant, loan, or
cooperative agreement.
(b) For purposes of paragraph (a) of this section, ``professional
and technical services'' shall be limited to advice and analysis
directly applying any professional or technical discipline. For example,
drafting of a legal document accompanying a bid or proposal
[[Page 72]]
by a lawyer is allowable. Similarly, technical advice provided by an
engineer on the performance or operational capability of a piece of
equipment rendered directly in the negotiation of a contract is
allowable. However, communications with the intent to influence made by
a professional (such as a licensed lawyer) or a technical person (such
as a licensed accountant) are not allowable under this section unless
they provide advice and analysis directly applying their professional or
technical expertise and unless the advice or analysis is rendered
directly and solely in the preparation, submission or negotiation of a
covered Federal action. Thus, for example, communications with the
intent to influence made by a lawyer that do not provide legal advice or
analysis directly and solely related to the legal aspects of his or her
client's proposal, but generally advocate one proposal over another are
not allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are
allowable under this section.
Sec. 1230.210 Reporting.
No reporting is required with respect to payments of reasonable
compensation made to regularly employed officers or employees of a
person.
Subpart C_Activities by Other Than Own Employees
Sec. 1230.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec.
1230.100 (a), does not apply in the case of any reasonable payment to a
person, other than an officer or employee of a person requesting or
receiving a covered Federal action, if the payment is for professional
or technical services rendered directly in the preparation, submission,
or negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirements in Sec. 1230.110 (a) and (b)
regarding filing a disclosure form by each person, if required, shall
not apply with respect to professional or technical services rendered
directly in the preparation, submission, or negotiation of any
commitment providing for the United States to insure or guarantee a
loan.
(c) For purposes of paragraph (a) of this section, ``professional
and technical services'' shall be limited to advice and analysis
directly applying any professional or technical discipline. For example,
drafting or a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered
directly in the negotiation of a contract is allowable. However,
communications with the intent to influence made by a professional (such
as a licensed lawyer) or a technical person (such as a licensed
accountant) are not allowable under this section unless they provide
advice and analysis directly applying their professional or technical
expertise and unless the advice or analysis is rendered directly and
solely in the preparation, submission or negotiation of a covered
Federal action. Thus, for example, communications with the intent to
influence made by a lawyer that do not provide legal advice or analysis
directly and solely related to the legal aspects of
[[Page 73]]
his or her client's proposal, but generally advocate one proposal over
another are not allowable under this section because the lawyer is not
providing professional legal services. Similarly, communications with
the intent to influence made by an engineer providing an engineering
analysis prior to the preparation or submission of a bid or proposal are
not allowable under this section since the engineer is providing
technical services but not directly in the preparation, submission or
negotiation of a covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(e) Persons other than officers or employees of a person requesting
or receiving a covered Federal action include consultants and trade
associations.
(f) Only those services expressly authorized by this section are
allowable under this section.
Subpart D_Penalties and Enforcement
Sec. 1230.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see
Appendix B) to be filed or amended if required herein, shall be subject
to a civil penalty of not less than $10,000 and not more than $100,000
for each such failure.
(c) A filing or amended filing on or after the date on which an
administrative action for the imposition of a civil penalty is commenced
does not prevent the imposition of such civil penalty for a failure
occurring before that date. An administrative action is commenced with
respect to a failure when an investigating official determines in
writing to commence an investigation of an allegation of such failure.
(d) In determining whether to impose a civil penalty, and the amount
of any such penalty, by reason of a violation by any person, the agency
shall consider the nature, circumstances, extent, and gravity of the
violation, the effect on the ability of such person to continue in
business, any prior violations by such person, the degree of culpability
of such person, the ability of the person to pay the penalty, and such
other matters as may be appropriate.
(e) First offenders under paragraph (a) or (b) of this section shall
be subject to a civil penalty of $10,000, absent aggravating
circumstances. Second and subsequent offenses by persons shall be
subject to an appropriate civil penalty between $10,000 and $100,000, as
determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not
prevent the United States from seeking any other remedy that may apply
to the same conduct that is the basis for the imposition of such civil
penalty.
Sec. 1230.405 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C.
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and
3812, insofar as these provisions are not inconsistent with the
requirements herein.
Sec. 1230.410 Enforcement.
The head of each agency shall take such actions as are necessary to
ensure that the provisions herein are vigorously implemented and
enforced in that agency.
Subpart E_Exemptions
Sec. 1230.500 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a
covered Federal action from the prohibition whenever the Secretary
determines, in writing, that such an exemption is in the national
interest. The Secretary shall transmit a copy of each such written
exemption to Congress immediately after making such a determination.
[[Page 74]]
(b) The Department of Defense may issue supplemental regulations to
implement paragraph (a) of this section.
Subpart F_Agency Reports
Sec. 1230.600 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure
reports (see Appendix B) and, on May 31 and November 30 of each year,
submit to the Secretary of the Senate and the Clerk of the House of
Representatives a report containing a compilation of the information
contained in the disclosure reports received during the six-month period
ending on March 31 or September 30, respectively, of that year.
(b) The report, including the compilation, shall be available for
public inspection 30 days after receipt of the report by the Secretary
and the Clerk.
(c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
(d) Information that is classified under Executive Order 12356 or
any successor order shall be reported only to the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives or the Committees on Armed Services of the
Senate and the House of Representatives (whichever such committees have
jurisdiction of matters involving such information) and to the
Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
(e) The first semi-annual compilation shall be submitted on May 31,
1990, and shall contain a compilation of the disclosure reports received
from December 23, 1989 to March 31, 1990.
(f) Major agencies, designated by the Office of Management and
Budget (OMB), are required to provide machine-readable compilations to
the Secretary of the Senate and the Clerk of the House of
Representatives no later than with the compilations due on May 31, 1991.
OMB shall provide detailed specifications in a memorandum to these
agencies.
(g) Non-major agencies are requested to provide machine-readable
compilations to the Secretary of the Senate and the Clerk of the House
of Representatives.
(h) Agencies shall keep the originals of all disclosure reports in
the official files of the agency.
Sec. 1230.605 Inspector General report.
(a) The Inspector General, or other official as specified in
paragraph (b) of this section, of each agency shall prepare and submit
to Congress each year, commencing with submission of the President's
Budget in 1991, an evaluation of the compliance of that agency with, and
the effectiveness of, the requirements herein. The evaluation may
include any recommended changes that may be necessary to strengthen or
improve the requirements.
(b) In the case of an agency that does not have an Inspector
General, the agency official comparable to an Inspector General shall
prepare and submit the annual report, or, if there is no such comparable
official, the head of the agency shall prepare and submit the annual
report.
(c) The annual report shall be submitted at the same time the agency
submits its annual budget justifications to Congress.
(d) The annual report shall include the following: All alleged
violations relating to the agency's covered Federal actions during the
year covered by the report, the actions taken by the head of the agency
in the year covered by the report with respect to those alleged
violations and alleged violations in previous years, and the amounts of
civil penalties imposed by the agency in the year covered by the report.
[[Page 75]]
Sec. Appendix A to Part 1230--Certification Regarding Lobbying
Certification for Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his or her knowledge and
belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by
or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of an agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been
paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress
in connection with this Federal contract, grant, loan, or cooperative
agreement, the undersigned shall complete and submit Standard Form-LLL,
``Disclosure Form to Report Lobbying,'' in accordance with its
instructions.
(3) The undersigned shall require that the language of this
certification be included in the award documents for all subawards at
all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required certification shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
Statement for Loan Guarantees and Loan Insurance
The undersigned states, to the best of his or her knowledge and
belief, that:
If any funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this commitment
providing for the United States to insure or guarantee a loan, the
undersigned shall complete and submit Standard Form-LLL, ``Disclosure
Form to Report Lobbying,'' in accordance with its instructions.
Submission of this statement is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required statement shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
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PART 1232_NONDISCRIMINATION ON BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES
RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents
Subpart A_General Provisions
Sec.
1232.1 Purpose.
1232.2 Application.
1232.3 Definitions.
1232.4 General prohibitions against discrimination.
1232.5 Assurances required.
1232.6 Notice.
1232.7 Remedial action, voluntary action and self-evaluation.
1232.8 Effect of state or local law.
Subpart B_Employment and Volunteer Service Practices
1232.9 General prohibitions against employment and volunteer service
discrimination.
1232.10 Reasonable accommodation.
1232.11 Employment and volunteer selection criteria.
1232.12 Preemployment or pre-selection inquiries.
Subpart C_Accessibility
1232.13 General requirement concerning accessibility.
1232.14 Existing facilities.
1232.15 New construction.
Subpart D_Procedures
1232.16 Procedures.
Authority: 29 U.S.C. 794.
Source: 44 FR 31018, May 30, 1979, unless otherwise noted.
Subpart A_General Provisions
Sec. 1232.1 Purpose.
The purpose of this part is to effectuate section 504 of the
Rehabilitation Act of 1973, which is designed to eliminate
discrimination on the basis of handicap in any program or activity
receiving Federal financial assistance.
Sec. 1232.2 Application.
This part applies to each recipient of Federal financial assistance
from ACTION and to each program or activity that receives such
assistance, including, but not limited to VISTA, University Year for
ACTION (UYA), Senior Companion Program (SCP), Foster Grandparent Program
(FGP) and Retired Senior Volunteer Program (RSVP). This part does not
apply to recipients outside the United States which receive financial
assistance under the Peace Corps Act, 22 U.S.C. 2501, Pub. L. 87-293, as
amended.
[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]
Sec. 1232.3 Definitions.
As used in this part the term:
(a) The Act means the Rehabilitation Act of 1973. Pub. L. 93-112, as
amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516,
and the Rehabilitation Act Amendments of 1978, Pub. L. 95-602.
(b) Section 504 means section 504 of the Act.
(c) Director means the Director of ACTION.
(d) Recipient means any state or its political subdivision, any
instrumentality of a state or its political subdivision, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended directly or
through another recipient, including any successor, assignee, or
transferee of a recipient, but excluding the ultimate beneficiary of the
assistance.
(e) Applicant for assistance means one who submits an application,
request, or plan required to be approved by an ACTION official or by a
recipient as a condition to becoming a recipient.
(f) Federal financial assistance means any grant, loan, contract
(other than a procurement contract or a contract of insurance or
guaranty), or any other arrangement which provides or otherwise makes
available assistance in the form of:
(1) Funds;
(2) Services of Federal personnel;
(3) Real and personal property or any interest in or use of such
property, including:
(i) Transfers or leases of such property for less than fair market
value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property
if the Federal share of its fair market value
[[Page 80]]
is not returned to the Federal Government.
(4) A Federal agreement, arrangement or other contract which has as
one of its purposes the provision of assistance, including the provision
of volunteers under the Domestic Volunteer Service Act of 1973, 42
U.S.C. 4951, Pub. L. 93-113, as amended.
(g) Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, or other real or personal
property or interest in such property.
(h) Handicapped person.
(1) Handicapped person means any person who has a physical or mental
impairment that substantially limits one or more major life activities,
has a record of such an impairment, or is regarded as having such an
impairment, except that as it relates to employment or volunteer service
the term ``handicapped person'' does not include any individual who is
an alcoholic or drug abuser whose current use of alcohol or drugs
prevents such individual from performing the duties of the job in
question or whose employment or volunteer service, by reason of such
current alcohol or drug abuse, would constitute a direct threat to
property or the safety of others.
(2) As used in paragraph (h)(1) of this section, the phrase:
(i) Physical or mental impairment means (A) 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 (B) 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, drug addiction and alcoholism.
(ii) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(iii) 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.
(iv) Is regarded as having an impairment means (A) has a physical or
mental impairment that does not substantially limit major life
activities but is treated by a recipient as constituting such a
limitation; (B) 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 (C) has none of the impairments defined in
paragraph (h)(2)(i) of this section but is treated by a recipient as
having such an impairment.
(i) Qualified handicapped person means (1) with respect to
employment or volunteer service, a handicapped person who, with
reasonable accommodation, can perform the essential functions of the job
or assignment in question; and (2) with respect to services, a
handicapped person who meets the essential eligibility requirements for
the receipt of such services.
(j) Handicap means any condition or characteristic that renders a
person a handicapped person as defined in paragraph (h) of this section.
(k) Volunteer and ``Volunteer service'' refers to any person serving
as a full time or part-time volunteer as authorized under the Domestic
Volunteer Service Act of 1973, Pub. L. 93-113, as amended.
(l) Work station means any public or private agency, institution,
organization or other entity to which volunteers are assigned by a
recipient.
(m) Program or activity means all of the operations of any entity
described in paragraphs (m)(1) through (4) of this section, any part of
which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
[[Page 81]]
(ii) 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;
(2)(i) A college, university, or other postsecondary institution, or
a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities described in paragraph (m)(1), (2), or (3) of this section.
(Sec. 504, Rehabilitation Act of 1973, Pub. L. 93-112, 87 Stat. 394 (29
U.S.C. 794), sec. 111(a), Rehabilitation Act Amendments of 1974, Pub. L.
93-516, 88 Stat. 1619 (29 U.S.C. 706); Rehabilitation Act Amendments of
1978, Pub. L. 95-602, 92 Stat. 2955; Sec. 402(14), Pub. L. 93-113, 87
Stat. 398)
[44 FR 31018, May 30, 1979; 46 FR 6951, Jan. 22, 1981, as amended at 68
FR 51388, Aug. 26, 2003]
Sec. 1232.4 General prohibitions against discrimination.
(a) No qualified handicapped person, 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 to which this part applies.
(b)(1) A recipient, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap:
(i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) 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;
(iii) 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 to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others unless such action is necessary to provide qualified
handicapped persons with aid, benefits, or services that are as
effective as those provided to others;
(v) 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 service to beneficiaries of the recipient's program or
activity;
(vi) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
(vii) 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.
(2) A recipient may not deny a qualified handicapped person the
opportunity to participate in aid, benefits, or services that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) A recipient may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration:
(i) That have the effect of subjecting qualified handicapped persons
to discrimination on the basis of handicap,
(ii) That have the purpose or effect of defeating or substantially
impairing
[[Page 82]]
accomplishment of the objectives of the recipient's program or activity
with respect to handicapped persons, or
(iii) That perpetuate the discrimination of another recipient if
both recipients are subject to common administrative control or are
agencies of the same state.
(4) A recipient may not, in determining the site or location of a
facility, make selections:
(i) That 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
financial assistance or
(ii) That 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.
(c) The exclusion of nonhandicapped persons from aid, benefits, or
services limited by federal statute or executive order to handicapped
persons or the exclusion of a specific class of handicapped persons from
aid, benefits, or services limited by federal statute or executive order
to a different class of handicapped persons is not prohibited by this
part.
(d) Recipients shall administer programs or activities in the most
integrated setting appropriate to the needs of qualified handicapped
persons.
(e) Recipients shall take appropriate steps to ensure that
communications with their applicants, employees, volunteers and
beneficiaries are available to persons with impaired vision and hearing.
(f) Recipients shall take appropriate steps to insure that no
handicapped individual is denied the benefits of, excluded from
participation in, or otherwise subjected to discrimination in any
program or activity receiving Federal financial assistance from ACTION
because of the absence of auxiliary aids for individuals with impaired
sensory, manual, or speaking skills.
[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]
Sec. 1232.5 Assurances required.
(a) An applicant for Federal financial assistance to which this part
applies shall submit an assurance, on a form specified by the Director,
that the program or activity will be operated in compliance with this
part. An applicant may incorporate these assurances by reference in
subsequent applications to ACTION. The assurance will obligate the
recipient for the period during which Federal financial assistance is
extended.
(b) In the case of Federal financial assistance extended to provide
personal property, the assurance will obligate the recipient for the
period during which it retains ownership or possession of the property.
(c) A recipient operating a program or activity under which
volunteers are assigned to a number of work stations shall obtain an
assurance from each work station that neither volunteers nor the
beneficiaries they serve will be discriminated against on the basis of
handicap.
[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]
Sec. 1232.6 Notice.
Recipients shall take appropriate initial and continuing steps to
notify participants, beneficiaries, applicants, volunteers and
employees, including those with impaired vision or hearing, that it does
not discriminate on the basis of handicap in violation of section 504
and this part.
Sec. 1232.7 Remedial action, voluntary action and self-evaluation.
(a) Remedial action. (1) If the Director finds that a recipient has
discriminated against persons on the basis of handicap in violation of
section 504 or this part, the recipient shall take such remedial action
as the Director deems necessary to overcome the effects of the
discrimination.
(2) Where a recipient is found to have discriminated against persons
on the basis of handicap in violation of section 504 or this part and
where another recipient exercises control over the recipient that has
discriminated, the Director, where appropriate, may require either or
both recipients to take remedial action.
(3) The Director may, where necessary to overcome the effects of
discrimination in violation of section 504
[[Page 83]]
or this part, require a recipient to take remedial action:
(i) With respect to handicapped persons who are no longer
participants in the recipient's program or activity but who were
participants in the program or activity when such discrimination
occurred or
(ii) With respect to handicapped persons who would have been
participants in the program or activity had the discrimination not
occurred, or
(iii) With respect to handicapped persons presently in the program
or activity, but not receiving full benefits or equal and integrated
treatment within the program or activity.
(b) Voluntary action. Recipient may take steps, in addition to any
action that is required by this part, to overcome the effects of
conditions that resulted in limited participation in the recipient's
program or activity by qualified handicapped persons.
(c) Self-evaluation. (1) Each recipient shall, within one year of
the effective date of this part, conduct a self-evaluation of its
compliance with Section 504, with the assistance of interested persons,
including handicapped persons or organizations representing handicapped
persons. Each recipient shall with the assistance of and consultation
with interested persons, including handicapped persons, evaluate its
current policies, practices and effects thereof; modify any that do not
meet the requirements of this part; and take appropriate remedial steps
to eliminate the effects of any discrimination that resulted from
adherence to these policies and practices.
(2) A recipient that employs fifteen or more persons shall, for at
least three years following completion of the evaluation required under
paragraph (c)(1) of this section, maintain on file, make available for
public inspection, and provide to the Director upon request: (i) A list
of the interested persons consulted,
(ii) A description of areas examined and any problems identified,
and
(iii) A description of any modifications made and of any remedial
steps taken.
[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]
Sec. 1232.8 Effect of state or local law.
The obligation to comply with this part 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.
Subpart B_Employment and Volunteer Service Practices
Sec. 1232.9 General prohibitions against employment and volunteer service
discrimination.
(a) No qualified handicapped person shall, on the basis of handicap,
be subjected to discrimination in employment or volunteer service under
any program or activity that receives federal financial assistance.
(b) A recipient shall make all decisions concerning employment or
volunteer service under any program or activity to which this part
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 or volunteers in any way that adversely affects
their opportunities or status because of handicap.
(c) The prohibition against discrimination in employment and
volunteer service applies to the following activities:
(1) Recruitment, advertising, and the processing of applications for
employment or volunteer service;
(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 leave, or any other leave;
(6) Fringe benefits available by virtue of employment or volunteer
service, whether or not administered by the recipient;
[[Page 84]]
(7) Selection and 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 those that are social
or recreational; and
(9) Any other term, condition, or privilege of employment or
volunteer service.
(d) A recipient may not participate in a contractural or other
relationship that has the effect of subjecting qualified handicapped
applicants, volunteers or employees, to discrimination prohibited by
this subpart. The relationships referred to in this paragraph include
relationships with employment and referral agencies, with labor unions,
with organizations providing or administering fringe benefits to
employees of the recipient, and with organizations providing training
and apprenticeships.
(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.
(f) Recipients operating a program or activity under which
volunteers are assigned to work in a number of work stations will assure
that a representative sample of work stations are accessible to
handicapped persons.
[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]
Sec. 1232.10 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified handicapped
applicant, employee or volunteer unless the recipient can demonstrate
that the accommodation would impose an undue hardship on the operation
of its program or activity.
(b) Reasonable accommodation may include: (1) Making facilities used
by employees or volunteers readily accessible to and usable by
handicapped persons, and
(2) Job restructuring, part-time or modified work schedules,
acquisition or modification of equipment or devices, the provision of
readers or interpreters, and other similar actions.
(c) In determining pursuant to paragraph (a) of this section whether
an accommodation would impose an undue hardship on the operation of a
recipient's program or activity, factors to be considered include:
(1) The overall size of the recipient's program or activity with
respect to number of employees or volunteers, 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 workforce or volunteer force, and
(3) The nature and cost of the accommodation needed.
[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]
Sec. 1232.11 Employment and volunteer selection criteria.
A recipient may not use employment tests or criteria that
discriminate against handicapped persons and shall ensure that
employment tests are adapted for use by persons who have handicaps that
impair sensory, manual, or speaking skills.
Sec. 1232.12 Preemployment or pre-selection inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient may not conduct a preemployment medical examination or not
make pre-employment inquiry of an applicant as to whether the applicant
is a handicapped person or as to the nature of severity of a handicap. A
recipient may, however, make preemployment inquiry into an applicant's
ability to perform job-related functions. For the purpose of this
paragraph, ``pre-employment'' as applied to applicants for volunteer
positions means prior to selection as a volunteer.
(b) When a recipient is taking remedial action to correct the
effects of past discrimination pursuant to Sec. 1232.8(a), when a
recipient is taking voluntary action to overcome the effects of
conditions that resulted in limited participation in its federally
assisted program or activity pursuant to Sec. 1232.8(b) or when a
recipient is taking affirmative action pursuant to section
[[Page 85]]
503 of the Act, the recipient may invite applicants for employment or
volunteer service 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 being
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 part.
(c) Nothing in this section shall prohibit a recipient from
conditioning an offer of employment or volunteer service on the results
of a medical examination conducted prior to the volunteer or employee's
entrance on duty. Provided, That:
(1) All entering volunteers or employees are subjected to such an
examination regardless of handicap, and
(2) The results of such an examination are used only in accordance
with the requirements of this part.
(d) Information obtained in accordance with this section as to the
medical condition or history of the applicant shall be collected and
maintained on separate forms that shall be accorded confidentiality as
medical records, except that:
(1) Supervisors and managers may be informed regarding restrictions
on the work or duties of handicapped persons and regarding necessary
accommodations;
(2) First aid and safety personnel may be informed, where
appropriate, if the condition might require emergency treatment; and
(3) Government officers investigating compliance with the Act shall
be provided relevant information upon request.
Subpart C_Accessibility
Sec. 1232.13 General requirement concerning accessibility.
No qualified 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 otherwise
be subjected to discrimination under any program or activity that
receives or benefits from federal financial assistance.
[44 FR 31018, May 30, 1979]
Sec. 1232.14 Existing facilities.
(a) A recipient shall operate each program or activity to which this
part applies so that when each part is viewed in its entirety it is
readily accessible 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.
(b) A recipient is not required to make structural changes in
existing facilities where other methods are effective in achieving
compliance with this section. Where structural changes are necessary to
comply with paragraph (a) of this section, such changes shall be made as
soon as practicable, but in no event later than three years after the
effective date of the regulation.
(c) In the event that structural changes to facilities are necessary
to meet the requirement of paragraph (a) of this section, a recipient
shall develop, within six months of the effective date of this part, a
transition plan which sets forth in detail the steps necessary to
complete the changes, and a schedule for taking those steps. The plan
shall be developed with the assistance of interested persons, including
handicapped persons or organizations representing handicapped persons. A
copy of the plan shall be made available for public inspection.
[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]
Sec. 1232.15 New construction.
(a) Design, construction, and alteration. New facilities shall be
designed and constructed to be readily accessible to
[[Page 86]]
and usable by handicapped persons. construction shall be considered new
if ground breaking takes place after the effective date of the
regulation. Alterations to existing facilities shall, to the maximum
extent feasible, be designed and constructed to be readily accessible to
and usable by handicapped persons.
(b) Conformance with Uniform Federal Accessibility Standards. (1)
Effective as of January 18, 1991, design, construction, or alteration of
buildings in conformance with sections 3-8 of the Uniform Federal
Accessibility Standards (USAF) (appendix A to 41 CFR subpart 101-19.6)
shall be deemed to comply with the requirements of this section with
respect to those buildings. Departures from particular technical and
scoping requirements of UFAS by the use of other methods are permitted
where substantially equivalent or greater access to and usability of the
building is provided.
(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall
be interpreted to exempt from the requirements of UFAS only mechanical
rooms and other spaces that, because of their intended use, will not
require accessibility to the public or beneficiaries or result in the
employment or residence therein of persons with physical handicaps.
(3) This section does not require recipients to make building
alterations that have little likelihood of being accomplished without
removing or altering a load-bearing structural member.
[44 FR 31018, May 30, 1979, as amended at 55 FR 52138, 52142, Dec. 19,
1990]
Subpart D_Procedures
Sec. 1232.16 Procedures.
The procedural provisions applicable to title VI of the Civil Rights
Act of 1964 apply to this part. These procedures are found in Sec. Sec.
1203.6 through 1203.11 of this title.
PART 1233_INTERGOVERNMENTAL REVIEW OF ACTION PROGRAMS--Table of Contents
Sec.
1233.1 What is the purpose of these regulations?
1233.2 What definitions apply to these regulations?
1233.3 What programs of the Agency are subject to these regulations?
1233.4 [Reserved]
1233.5 What is the Director's obligation with respect to federal
interagency coordination?
1233.6 What procedures apply to the selection of programs under these
regulations?
1233.7 How does the Director communicate with state and local officials
concerning the Agency's programs?
1233.8 How does the Director provide states an opportunity to comment on
proposed federal financial assistance?
1233.9 How does the Director receive and respond to comments?
1233.10 How does the Director make efforts to accommodate
intergovernmental concerns?
1233.11-1233.12 [Reserved]
1233.13 May the Director waive any provision of these regulations?
Authority: E.O. 12372, July 14, 1982 (47 FR 30959), as amended April
8, 1983 (48 FR 15887); sec. 401 of the Intergovernmental Cooperation Act
of 1968, as amended (31 U.S.C. 6505).
Source: 48 FR 29284, June 24, 1983, unless otherwise noted.
Sec. 1233.1 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 intergovernmental
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.
(c) These regulations are intended to aid the internal management of
the Agency, and are not intended to create any right or benefit
enforceable at law by a party against the Agency or its officers.
Sec. 1233.2 What definitions apply to these regulations?
Agency means ACTION, the National Volunteer Agency.
Order means Executive Order 12372, issued July 14, 1982, and amended
April
[[Page 87]]
8, 1983 and titled ``Intergovernmental Review of Federal Programs.''
Director means the Director of ACTION, or an official or employee of
the Agency acting for the Director 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. 1233.3 What programs of the Agency are subject to these regulations?
The Director publishes in the Federal Register a list of the
Agency's programs that are subject to these regulations.
Sec. 1233.4 [Reserved]
Sec. 1233.5 What is the Director's obligation with respect to federal
interagency coordination?
The Director, 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 ACTION regarding programs covered under these regulations.
Sec. 1233.6 What procedures apply to the selection of programs under these
regulations?
(a) A state may select any ACTION program published in the Federal
Register in accordance with Sec. 1233.3 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 Director of
the Agency's programs selected for that process.
(c) A state may notify the Director of changes in its selections at
any time. For each change, the state shall submit to the Director an
assurance that the state has consulted with local elected officials
regarding the change. The Agency may establish deadlines by which states
are required to inform the Director of changes in their program
selections.
(d) The Director uses a state's process as soon as feasible,
depending on individual programs, after the Director is notified of its
selections.
Sec. 1233.7 How does the Director communicate with state and local officials
concerning the Agency's programs?
(a) The Director provides opportunities for consultation by elected
officials of those state and local governments that would provide the
nonfederal funds for, or that would be directly affected by, proposed
federal financial assistance from the Agency. For those programs covered
by a state process under Sec. 1233.6, the Director, to the extent
permitted by law:
(1) Uses the official state process to determine views of state and
local elected officials; and,
(2) Communicates with state and local elected officials, through the
official state process, as early in a program planning cycle as is
reasonably feasible to explain specific plans and actions.
(b) The Director provides notice to directly affected state,
areawide, regional, and local entities in a state of proposed federal
financial assistance if:
(1) The state has not adopted a process under the Order; or
(2) The assistance involves a program not selected for the state
process.
This notice may be made by publication in the Federal Register, or other
appropriate means, which the Agency in its discretion deems appropriate.
Sec. 1233.8 How does the Director provide states an opportunity to comment on
proposed federal financial assistance?
(a) Except in unusual circumstances, the Director gives state
processes or directly affected state, areawide, regional and local
officials and entities:
(1) At least 30 days from the date established by the Director to
comment on proposed federal financial assistance in the form of
noncompeting continuation awards; and
(2) At least 60 days from the date established by the Director to
comment on proposed federal financial assistance other than noncompeting
continuation awards.
[[Page 88]]
(b) This section also applies to comments in cases in which the
review, coordination, and communication with the Agency have been
delegated.
Sec. 1233.9 How does the Director receive and respond to comments?
(a) The Director follows the procedures in Sec. 1233.10 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. 1233.6.
(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 either to the applicant or to
the Agency, or both.
(d) If a program is not selected for a state process, state,
areawide, regional and local officials and entities may submit comments
either to the applicant or to the Agency, or both. In addition, if a
state process recommendation for a nonselected program is transmitted to
the Agency by the single point of contact, the Director follows the
prodecures of Sec. 1233.10 of this part.
(e) The Director considers comments which do not constitute a state
process recommendation submitted under these regulations and for which
the Director is not required to apply the procedures of Sec. 1233.10 of
this part, when such comments are provided by a single point of contact,
by the applicant, or directly to the Agency by a commenting party.
Sec. 1233.10 How does the Director make efforts to accommodate
intergovernmental concerns?
(a) If a state process provides a state process recommendation to
the Agency through its single point of contact, the Director either:
(1) Accepts the recommendation;
(2) Reaches a mutually agreeable solution with the state process; or
(3) Provides the single point of contact with a written explanation
of the Agency's decision, in such form as the Director in his or her
discretion deems appropriate. The Director 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
Director informs the single point of contact that:
(1) The Agency will not implement its decision for at least ten days
after the single point of contact receives the explanation; or
(2) The Director has reviewed the decision and determined that,
because of unusual circumstances, the waiting period of at least ten
days is not feasible.
(c) For purpose 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.