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Sec. 8.2. Application of this part
(a) This part applies to any program for which Federal financial assistance is authorized under a law administered by the Department, including the federally-assisted programs listed in Appendix A to this part and as said Appendix may be amended. They apply to money paid, property transferred, or other Federal financial assistance extended under any such program after the effective date of this part pursuant to an application approved prior to such effective date.
(b) This part does not apply to (1) any Federal financial assistance by way of insurance or guaranty contracts, (2) money paid, property transferred, or other assistance extended under any such program before the effective date of this part, (3) any assistance to any individual who is the ultimate beneficiary under any such program, or (4) any employment practice, under any such program, of any employer, employment agency, or labor organization, except to the extent described in $ 8.4(c). The fact that a program is not listed in Appendix A shall not mean, if Title VI of the Act is otherwise applicable, that such program is not covered. Other programs under statutes now in force or hereinafter enacted may be added to the list by notice published in the Federal Register. Sec. 8.3. Definitions
(a) “Department” means the Department of Commerce, and includes each of its primary organization and equivalent other units.
(b) “Secretary” means the Secretary of Commerce.
(c) “United States” means the States of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and the territories and possessions of the United States, and the term “State” means any one of the foregoing.
(d) “Person” means an individual in the United States who is or is eligible to be a participant in or a beneficiary of any program which receives Federal financial assistance, and includes an individual who is an owner or member of a fir corporation, or other business or organization which is or is eligible to be a participant in or a beneficiary of such a program. Where a primary objective of a statute authorizing Federal financial assistance to a program is to provide employment, “person" includes employees or applicants for employment of a recipient under such program.
(e) “Responsible Department official” with respect to any program receiving Federal financial assistance means the Secretary or other official of the Department who by law or by delegation has the principal authority within the Department for the administration of a law extending such assistance. It also means any officials so designated by due delegation of authority within the Department to act in such capacity with regard to any program under this part.
(f) “Federal financial assistance” includes (1) grants, loans, or agreements for participation in loans, of Federal funds, (2) the grant or donation of Federal property or interests in property, (3) the sale or lease of, or the permission to use (on other than a casual or transient basis), Federal property or any interest in such property or in property in which the Federal Government has an interest, 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 such sale or lease to or use by the recipient, (4) waiver of charges which would normally be made for the furnishing of Government services, (5) the details of Federal personnel, (6) technical assistance, and (7) any Federal agreement, arrangement, contract, or other instrument which has as one of its purposes the provision of assistance.
(g) "Program” includes any program, project, or activity for the provision of services, financial aid, property or other benefits to persons, or for the provision of facilities for furnishing services, financial aid, property, or other benefits to persons whether provided by the recipient of Federal financial assistance or by others through contracts or other arrangements with the recipient, or whether provided with the aid of Federal financial assistance or with the aid of any non-Federal funds, property, facilities or other resources provided to meet the conditions under which Federal financial assistance will be received. It includes programs supported by: (1) Grants, loans or contracts to recipients which make further grants or loans to, or contracts with, participants in the program or to persons who are the ultimate beneficiaries, (2) grants, loans or contracts to recipients to help finance the provision of services to the ultimate beneficiaries, (3) grants, loans or contracts to help finance the construction or operation of public roads, public works, or other facilities, to provide benefits, aid or services
to the ultimate beneficiaries, (4) Federal financial assistance where a primary objective of the assistance is to provide employment, (5) any other Federal financial assistance in which the immediate recipient of the assistance is not the sole or exclusive beneficiary of the Congressional purpose.
(h) “Facility” includes all or any portion of structures, equipment, vessels, 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.
(i) "Recipient” means any State, political subdivision of any State, or instrumentality of any State or political subdivision, or any public or private business or other agency, institution, organization, or other entity, or any individual, in any State, who applies for Federal financial assistance, or to whom Federal financial assistance is extended directly or through another recipient for or in connection with any program. Recipient further includes any successors, assigns, or transferees of any kind of the recipient, and those parties so designated for each program in $ 8.6, but does not include any ultimate beneficiary under any program.
(j) “Primary recipient” means any recipient which is authorized or required to extend or distribute Federal financial assistance to another recipient for the purpose of carrying out a program.
(k) “Applicant” means one who submits an application, request, or plan required to be approved by a responsible Department official, or by a primary recipient, as a condition to eligibility for Federal financial assistance, and “application" means such an application, request, or plan.
Sec. 8.4. Discrimination prohibited
(a) General. No person in the United States shall, on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under, any program to which this part applies.
(b) Specific discriminatory acts prohibited. (1) A recipient of Federal financial assistance, or other party subject to these regulations under any program to which this part applies, shall not participate, directly or through contractual or other arrangements, in any act or course of conduct which, on the ground of race, color or national origin:
(i) Denies to a person any service, financial aid, or other benefit provided under the program;
(ii) Provides any 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) Subjects a person to segregation or separate treatment in any matter related to his receipt of any such service, financial aid, property, or other benefit under the program ;
(iv) Restricts the person in any way in the enjoyment of services, facilities, or any other advantage, privilege, property, or benefit provided to others under the program;
(v) Treats a person differently from others in determining whether he satisfies any admission, enrollment, quota, eligibility, membership, or other requirement or condition which persons must meet in order to be provided any service, financial aid, or other benefit provided under the program;
(vi) Denies a person an opportunity to participate in the program through the provision of property or services or otherwise, or affords him an opportunity to do so which is different from that afforded others under the program (including the opportunity to participate in the program as an employee but only to the extent set forth in paragraph (c) of this section):
(vii) Denies to the person the same opportunity or consideration given others to be selected or retained or otherwise to participate as a contractor
or subcontractor when a program is applicable thereto. (2) A recipient, or other party subject to this part under any program, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of persons to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program, or the class of persons to be afforded an opportunity to participate in any such program, shall 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 as respect any persons of a particular race, color, or national origin.
|(3) As used in this section, the services, financial aid, or other benefits pro vided under a program receiving Federal financial assistance shall be deemed to include any service, financial aid, or other benefit provided in or through a facility provided or connected with the aid of Federal financial assistance.
|(4) The enumeration of specific forr of prohibited discrimination in this paragraph and paragraph (c) of this section does not limit the generality of the prohibition in paragraph (a) of this section.
(c) Employment practices. Where a primary objective of the Federal financial assistance to a program to which this part applies is to provide employment, a recipient 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 such 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). Such recipient shall take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, color, or national origin. The requirements applicable to construction employment under any such program shall be those specified in or pursant to Executive Order 11114. Federal financial assistance to programs under laws funded or administered by the Department which have as a primary objective the providing of employment are set forth in Appendix A II of this part. Sec. 8.5. Nondiscrimination clause
(a). Applicability. Every application for, and every grant, loan or contract authorizing approval of, Federal financial assistance to carry out a program and to provide a facility subject to this part, and every modification or amendment thereof, shall, as a condition to its approval and to the extension of any Federal financial assistance pursuant thereto, contain or be accompanied by an assurance that the program will be conducted in compliance with all requirements imposed by or pursuant to this part. The assurances shall be set forth in a nondiscrimination clause. The responsible Department official shall specify the form and contents of the nondiscrimination clause for each program as appropriate.
(b) Contents. Without limiting its scope or language in any way, a nondiscrimination clàuse shall contain, where determined to be appropriate, and in an appropriate form, reference to the following assurances, undertakings, and other provisions :
(1) That the recipient or other party subject to this part will not participate directly or indirectly in the discrimination prohibited by $ 8.4, including employment practices when a program covering such is involved.
(2) That when employment practices are covered, the recipient or other party, subject to this part will (i) in all solicitations or advertisements for employees placed by or for the recipient, state that qualified applicants will receive consideration for employment without regard to race, color or national origin; (ii) notify each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, of the recipient's commitments under this section, (iii) post the nondiscrimination clause and the notice to labor unions in conspicuous places available to employees and applicants for employment; and (iv) otherwise comply with the requirements of § 8.4(c).
(3) That in a program involving continuing Federal financial assistance, the recipient thereunder (i) will state that the program is (or, in the case of a new program, will be) conducted in compliance with all requirements imposed by or pursuant to this part, or state the extent to which it is not, at the time the statement is made, so conducted, and (ii) will provide for such methods of administration for the program as are found by the responsible Department official to give reasonable assurance that all recipients of Federal financial assistance under such program and any other parties connected therewith subject to this part will comply with all requirements imposed by or pursuant to this part, including methods of administration which give reasonable assurance that any noncompliance indicated in the statement in subdivision (i) of this subparagraph will be corrected.
(4) That the recipient agrees to secure the compliance or to cooperate actively with the Department to secure the compliance by others with this
part and the nondiscrimination clause as may be directed under an applicable program. For instance, the recipient may be requested by the responsible Department official to undertake and agree (i) to obtain or enforce, or to assist and cooperate actively with the responsible Department official in obtaining or enforcing, the compliance of contractors, subcontractors, lessees, and other parties subject to this part with the nondiscrimination required by this part and their respective contracts; (ii) to insert appropriate nondiscrimination clauses in the respective contracts with such parties; (iii) to obtain and to furnish to the responsible Department official such information as he may require for the supervision or securing of such compliance; (iv) to carry out sanctions for noncompliance with the obligations imposed upon contractors and other parties subject to this part; and (v) to comply with such additional provisions as the responsible Department official deems appropriate to establish and protect the interests of the United States in the enforcement of these obligations. In the event that the cooperating recipient becomes involved in litigation with a non-complying party as a result of such Departmental direction, the cooperating recipient may request the Department to enter into such litigation to protect the interests of the United States.
(5) That in the case of a transfer of real property, the instrument effecting the transfer shall contain (i) a condition coupled with a right to be reserved to the Department to revert title to the property in the event of breach of such nondiscrimination condition, and (ii) a covenant running with the land. 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 such property for the purposes for which the property was transferred, the responsible Department office may agree, upon request of the transferee and if necessary to accomplish such financing, and upon such conditions as he deems appropriate; to forbear the exercise of such right to revert title for so long as the lien of such mortgage or other encumbrance remains effective.
(6) That a recipient shall not take action that is calculated to bring about indirectly what this part forbids it to accomplish directly.
(7) Provisions specifying the extent to which like assurances will be required of subgrantees, contractors and subcontractors, lessees, transferees, successors in interest, and other participants in the program.
(8) Provisions which give the United States a right to seek judicial enforcement of the assurances.
(9) In the case where any assurance is required from a recipient institution of higher education or any other institution, insofar as the assurance relates to the institution's practices with respect to admission of students or other treatment of persons participating in the program or its services or other benefits, the assurance shall be applicable to the entire institution unless the recipient establishes, to the satisfaction of the responsible Department official, that the institution's practices in designated parts or programs of the institution will in no way affect its practices in the program of the institution for which Federal financial assistance is or is sought to be provided, or the beneficiaries of or participants in such program. If in any such case the assistance is for the construction of a facility or part of a facility, the assurance shall in any event extend to the entire facility and to facilities operated in connection therewith.
(10) It shall be provided that, where the Federal financial assistance is to provide : (i) Real property or structures thereon, the assurances shall be in effect for the period during which the real property or structures are used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits; (ii) personal property, the assurances shall be in effect for as long as the recipient retains ownership or possession of the property; and (iii) any other type or form of assistance, the assurances shall be in effect for the duration of the period during which Federal financial assistance is extended
to the program. Sec. 8.6. Applicability of the regulations to Department programs
The following examples illustrate the applicability of this part to programs which receive or may receive Federal financial assistance administered by the Department. The fact that a particular program is not listed does not indicate
that it is not covered by this part. The discrimination referred to is that described in § 8.4 against persons on the ground of race, color, or national origin.
(a) Assistance programs which support highway construction and related projects. In programs receiving Federal financial assistance for highway construction, acquisition of right-of-way and related projects, discrimination is prohibited by recipients in the selection and retention of contractors, by contractors in the selection and retention of first-tier subcontractors, and by first-tier subcontractors in the selection and retention of second-tier subcontractors, who participate in any such projects. Such contractors and subcontractors include, without limitation, those whose services are retained by contract for or incidental to planning, research, highway safety, engineering, acquisition of right-of-way, property management, and for any other commitments by recipients under which they are eligible for Federal-aid reimbursement, in addition to those contractors and subcontractors through the second-tier engaged in the actual highway construction work and those who supply the equipment and materials therefor. In addition, there shall be no discrimination against the traveling public and business users of the federally assisted highways in their access to and use of the facilities and services provided for public accommodations (such as eating, sleeping, rest, recreation, and vehicle servicing) constructed on, over, or under the space of the right-of-way of such highways in which the recipient has any interest, including a reversionary one.
(b) Assistance programs to support area redevelopment projects. (1) In loan and loan participation programs under which individuals and business entities receive Federal financial assistance to purchase or develop land, facilities, machinery or equipment for industrial or commercial usage, discrimination by recipients is prohibited (i) in the letting of contracts or other arrangements for the designing, engineering, acquisition, construction, rehabilitation, conversion, enlargement, installation, occupancy, use, maintenance, leasing, subleasing, sales, or other utilization or disposition of the property or facilities purchased or financed in whole or in part with the aid of the Federal financial assistance; (ii) in the acquisitioin of goods or services, or the production, preparation, manufacture, marketing, transportation or distribution of goods or services in connection with the project or its operations; (iii) in the on-site operation of the project or facility; (iv) in all services or accommodations offered to the public in connection therewith; and (v) in their employment practices (as defined in $ 8.4(c). For these programs, a recipient by definition also includes the borrowers and all identifiable business entities which are intended to lease, use or otherwise operate the project or facility assisted by the loan.
(2) In loan or grant programs under which States, their subdivisions, or private or public organizations receive Federal financial assistance to finance the purchase or development of land for public facility usage, or the construction, rehabilitation, alteration, expansion or improvement of public facilities, discrimination by recipients is prohibited as set forth in subparagraph (1) of this paragraph, but includes the employment practices (as defined in g 8.4(c)) only of any business entity which is intended to use or otherwise receive the substantial and direct benefit of the public facility. For these programs, a recipient by definition also includes the borrower or grantee and all identifiable business entities intended to be substantial and direct beneficiaries of a public facility assisted or provided by the loan or grant.
(3) In programs providing any form of technical assistance deemed useful to alleviate or prevent conditions of excessive unemployment or underemployment in areas of any State, discrimination by recipients of such technical assistance is prohibited as described in subparagraph (1) of this paragraph in connection with any land, buildings, machinery, equipment, improvements, facilities, goods, services, or the other operations of any identifiable business entities which are intended to be the direct and substantial beneficiaries of such technical assistance. Such technical assistance includes the results of studies evaluating the needs of and developing potentials for economic growth of areas of any State. Further, any party which under the program disseminates any form of technical assistance shall not discriminate in such dissemination. For this program, a recipient of technical assistance by definition also includes the sponsoring applicant and all identifiable business entities intended to be substantial and direct beneficiaries of the technical assistance applied for.
(c) Assistance programs to support the training of students. A current example of such programs is the assistance received by State maritime academies or colleges, by contract, of facilities (vessels), related equipment, and funds to train merchant marine officers. In this and other student training programs, discrimination which is prohibited by recipients includes discrimination in the