« PreviousContinue »
hours to such of its books, records, a Ccounts, and other sources of information, and its facilities as may be pertinent to ascertain compliance with this part. Where any information required of a recipient is in the exclusive possesSion of any other agency, institution, or person and this agency, institution, or person 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 such information regarding the provisions of this part and its applicability to the program under which the recipient receives Federal financial assistance, and make such information available to them in such manner, as the Secretary finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this part.
[35 FR 10080, June 18, 1970, as amended by Amdt. 72–2, 38 FR 17997, July 5, 1973]
$21.11 Conduct of investigations.
(a) Periodic compliance reviews. The Secretary shall from time to time review the practices of recipients to determine 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 the Secretary a written complaint. A complaint must be filed not later than 180 days after the date of the alleged discrimination, unless the time for filing is extended by the Secretary.
(c) Investigations. The Secretary will make a prompt investigation whenever a compliance review, report, complaint, or any other information indiCates a possible failure to comply with this part. The investigation will include, where 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, the Secretary will so inform the recipient and the matter will be resolved by informal means whenever possible. If it has been determined that the matter cannot be resolved by informal means, action will be taken as provided for in $21.13.
(2) If an investigation does not warrant action pursuant to paragraph (d)(1) of this section the Secretary will so inform the recipient and the complainant, if any, in Writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege Secured by section 601 of the Act or this 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 any investigation, hearing, or judicial proceeding arising thereunder.
[35 FR 10080, June 18, 1970, as amended by Amdt. 72–2, 38 FR 17997, July 5, 1973]
$21.13 Procedure for effecting compli3INCE,
(a) General. 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 any other means authorized by law. Such other means may include, but are not limited to: (1) A reference to the Department of Justice with a reconmendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States (including other titles of the Act), or any assurance or other contractual undertaking, and (2) any applicable proceeding under State or local law. (b) Noncompliance with $21.7. If an applicant fails or refuses to furnish an assurance required under §21.7 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. The Department shall not be required to provide assistance in such a Case during the pendency of the administrative proceedings under such paragraph. However, subject to $21.21, the Department shall continue assistance during the pendency of such proceedings where such 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. No order suspending, terminating, or refusing to grant or continue Federal financial assistance shall become effective until: (1) The Secretary has advised the applicant or recipient of his failure to comply and has determined that compliance cannot be secured by 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; (3) The action has been approved by the Secretary pursuant to $21.17(e); and (4) The expiration of 30 days after the Secretary has filed with the committee of the House and the committee of the Senate having legislative jurisdiction over the program involved, a full written report of the circumstances and the grounds for such action.
Any action to suspend or terminate or to refuse to grant or to continue Federal financial assistance shall be limited to the particular political entity, or part thereof, or other applicant or recipient as to whom such a finding has been made and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found. (d) Other means authorized by law. No action to effect compliance with title VI of the Act by any other means au
thorized by law shall be taken by this Department until: (1) The Secretary 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 such notice to the recipient or other person. During this period of at least 10 days, additional efforts shall be made to persuade the recipient or other person to comply with the regulation and to take such corrective action as may be appropriate.
(a) Opportunity for hearing. Whenever an opportunity for a hearing is required by §21.13(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 a Ction, and either: (1) Fix a date not less than 20 days after the date of such notice within which the applicant or recipient may request of the Secretary 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 place and time. The time and place so fixed shall be reasonable and shall be subject to change for Cause. The complainant, if any, shall be advised of the time and place of the hearing. An applicant or recipient may waive a hearing and submit written information and argument for the record. The failure of an applicant or recipient to request a hearing under this paragraph or to appear at a hearing for which a date has been set shall be deemed to be a waiver of the right to a hearing under Section 602 of the Act and $21.13(c) and consent to the making of a decision on the basis of such information as is available.
(b) Time and place of hearing. Hearings shall be held at the offices of the Department in Washington, D.C., at a time fixed by the Secretary unless he determines that the convenience of the applicant or recipient or of the Department requires that another place be Selected. Hearings shall be held before the Secretary, 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 the Department shall have the right to be represented by Counsel. (d) Procedures, evidence, and record. (1) The hearing, decision, and any administrative review thereof shall be conducted in conformity with sections 554 through 557 of title 5, United States Code, and in accordance with such rules of procedure as are proper (and not inconsistent with this section) relating to the conduct of the hearing, giving of notices Subsequent to those provided for in paragraph (a) of this section, taking of testimony, exhibits, arguments and briefs, requests for findings, and other related matters. Both the Department and the applicant or recipient shall be entitled to introduce all relevant evidence on the issues as stated in the notice for hearing or as 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 to this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary by the officer conducting the hearing. The hearing officer may exclude irrelevant, inmaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the Substance thereof is stipulated for the record. All decisions shall be based upon the hearing record and written findings shall be made.
(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 programs to which this part applies, or noncompliance with this part and the regulations of one or more other Federal departments or agencies issued under title VI of the Act, the Secretary may, by agreement with Such other departments or agenCies, where applicable, provide for the conduct of consolidated or joint hearings, and for the application to such hearings of rules or procedures not inconsistent with this part. Final deciSions in Such cases, insofar as this regulation is concerned, shall be made in accordance with $21.17.
$21.17 Decisions and notices.
(a) Procedure on decisions by hearing estaminer. 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 Secretary for a final decision, and a Copy of Such initial decision or certifiCation shall be mailed to the applicant or recipient. Where the initial decision is made by the hearing examiner the applicant or recipient may, within 30 days after the mailing of such notice of initial decision, file with the Secretary his exceptions to the initial decision, with his reasons therefor. In the absence of exceptions, the Secretary may, on his own motion, within 45 days after the initial decision, serve on the applicant or recipient a notice that he will review the decision. Upon the filing of such exceptions or of notice of review, the Secretary shall review the initial decision and issue his own decision thereon including the reasons therefor. In the absence of either exceptions Or a notice of review the initial decision shall, subject to paragraph (e) of this section, constitute the final decision of the Secretary.
(b) Decisions on record or review by the Secretary. Whenever a record is certified to the Secretary for decision or he reviews the decision of a hearing examiner pursuant to paragraph (a) of this section, or whenever the Secretary conducts the hearing, the applicant or recipient shall be given reasonable opportunity to file with him briefs or Other written Statements of its contentions, and a written copy of the final decision of the Secretary shall be sent to the applicant Or recipient and to the complainant, if any. (c) Decisions on record where a hearing is waived. Whenever a hearing is waived pursuant to $21.15, a decision shall be made by the Secretary on the record and a written Copy of such 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 Secretary shall set forth his ruling on each finding, conclusion, or exception presented, and shall identify the requirement or requirements imposed by or pursuant to this part with which it is found that the applicant or recipient has failed to Comply. (e) Approval by Secretary. Any final decision by an official of the Department, other than the Secretary personally, 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 the Act, shall promptly be transmitted to the Secretary personally, who may approve Such decision, may vacate it, Or remit Or mitigate any Sanction inposed. (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, under the program involved, and may contain such terms, Conditions, and other provisions as are Consistent with and will effectuate the purposes of the Act and this part, including provisions designed to assure that no Federal financial assistance will thereafter be extended under such programs to the applicant or recipient determined by Such decision to be in default in its performance of an assurance given by it pursuant to this part, or to have otherwise failed to comply with this part, unless and until it corrects its noncompliance and Satisfies the Secretary that it will fully comply with this part. (g) Post termination proceedings. (1) An applicant or recipient adversely af
fected by an order issued under paragraph (f) of this Section shall be restored to full eligibility to receive Federal financial assistance if it satisfies the terms and conditions of that order for such eligibility or if it brings itself into compliance with this part and provides reasonable assurance that it will fully comply with this part. (2) Any applicant or recipient adversely affected by an order entered pursuant to paragraph (f) of this section may at any time request the Secretary to restore fully its eligibility to receive Federal financial assistance. Any such request shall be supported by information showing that the applicant or recipient has met the requirements of paragraph (g)(1) of this section. If the Secretary determines that those requirements have been satisfied, he shall restore such eligibility. (3) If the Secretary denies any such request, the applicant or recipient may Submit a request for a hearing in writing, Specifying who it believes such of ficial to have been in error. It shall thereupon be given an expeditious hearing, with a decision on the record in accordance with rules or procedures issued by the Secretary. The applicant or recipient will be restored to such eligibility if it proves at such a 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 shall remain in effect.
$21.19 Judicial review.
Action taken pursuant to section 602 of the Act is subject to judicial review as provided in Section 603 of the Act.
$21.21 Effect on other regulations, forms, and instructions.
(a) Effect on other regulations. All regulations, orders, or like directions issued before the effective date of this part by any officer of the Department which impose requirements designed to prohibit any discrimination against individuals on the grounds of race, color, or national origin under any program to which this part applies, and which authorize the suspension or termination of or refusal to grant or to continue Federal financial assistance to
any applicant for a recipient of Such assistance under such program for failure to comply with Such requirements, are hereby superseded to the extent that such discrimination is prohibited by this part, except that nothing in this part may be considered to relieve any person of any obligation assumed or imposed under any such superseded regulation, order, instruction, or like direction before the effective date of this part. Nothing in this part, however, supersedes any of the following (including future amendments thereof): (1) Executive Order 11246 (3 CFR, 1965 Supp., p. 167) and regulations issued thereunder or (2) any other orders, regulations, or instructions, insofar as such orders, regulations, or instructions prohibit discrimination. On the ground of race, Color, or national origin in any program or situation to which this part is inapplicable, or prohibit discrimination. On any other ground. (b) Forms and instructions. The Secretary 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 he is responsible. (c) Supervision and coordination. The Secretary may from time to time asSign to Officials of the Department, or to officials of other departments or agencies of the Government with the Consent of Such departments or agencies, responsibilities in connection with the effectuation of the purposes of title VI of the Act and this part (other than responsibility for final decision as provided in $21.17), including the achievement of effective coordination and maximum uniformity within the Department and within the Executive Branch of the Government in the application of title VI and this part to similar programs and in Similar situations. Any action taken, determination made or requirement inposed 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 such action had been taken by the Secretary of this Department.
Unless the context requires otherWise, as used in this part: (a) Applicant means a person who submits an application, request, or plan required to be approved by the Secretary, or by a primary recipient, as a condition to eligibility for Federal financial assistance, and “application” means such an 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; (4) The sale and lease of, and the permission to use (on other than a casual or transient basis), Federal property or any interest in Such property without Consideration or at a nominal consideration, or at a consideration which is reduced for the purpose of assisting the recipient, or in recognition of the public interest to be served by such sale or lease to the recipient; and (5) Any Federal agreement, arrangement, or Other Contract which has as One of its purposes the provision of asSistance. (d) Primary recipient means any recipient that is authorized or required to extend Federal financial assistance to another recipient for the purpose of Carrying Out a program. (e) Program includes any program, project, or activity for the provision of Services, financial aid, or other benefits to individuals (including education or training, health, welfare, rehabilitation, housing, or other Services, whether provided through employees of the recipient of Federal financial assistance or provided by others through contracts or other arrangements with the recipient, and including work opportunities), or for the provision of facilities for furnishing services, financial aid or other benefits to individuals. The services, financial aid, or