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:: cluding recruitment or recruitment ad11 vertising, employment, layoff or termiC nation, upgrading, demotion, or trans
fer, rates of pay or other forms of come pensation and use of facilities), includ
ing programs where a primary objective of the Federal financial assistance
is (1) to assist such individuals through et employment to meet expenses incident
to the commencement or continuation
of their education or training or (ii) to i provide work experience which contrib
utes to the education or training of by such individuals.
(2) Programs listed in Appendix A as met respects
employment opportunities provided thereunder, or in facilities e provided thereunder, which are limited,
or for which preference is given, to students, fellows, or other persons, including research associates, where in training for the same or related employments, have one of the above purposes as a primary purpose.
(3) The requirements applicable to construction employment under any such program shall be those specified in or pursuant to part III of Executive Order 11246 or any Executive order which supersedes it.
(4) Where a primary objective of the Federal financial assistance is not to provide employment, but discrimination on the grounds of race, color, or national origin in the employment practices of the recipient or other persons subject to the regulation tends, on the grounds of race, color, or national origin, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program to which this regulation applies, the provisions of paragraph (c)(3) of this section shall apply to the employment practices of the recipient or other persons subject to the regulation, to the extent necessary to assure equality of oppor
and nondiscriminatory treatment of, beneficiaries.
(d) Medical emergencies. Notwithstanding the foregoing provisions of this section, a recipient of Federal financial assistance shall not be deemed to have failed to comply with paragraph (a) of this section if immediate provision of a service or other benefit to an individual is necessary to prevent his death or serious impairment of his
health, and such service or other benefit cannot be provided except by or through a medical institution which refuses or fails to comply with paragraph (a) of this section. (29 FR 16305, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973)
8611.4 Assurances required.
(a) General. (1) Every application for Federal financial assistance to carry out a program to which this part ap plies, and every application for Federal financial assistance to provide a facility shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to the application, contain or be accompanied by an assurance that the program will be conducted or the facility operated in compliance with all requirements imposed by or pursuant to this part. 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 assurance 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 and benefits, or for as long as the recipient retains ownership or possession of the prop erty, whichever is longer. In all other cases the assurance shall obligate the recipient for the period during which Federal Financial assistance is extended pursuant to the application. The responsible Foundation official shall specify the form of the foregoing assurances for each program and the extent to which like assurances will be required of subgrantees, contractors and subcontractors, successors in interest, and other participants in the program. Any such assurance shall include provisions which give the United States a right to seek its judicial enforcement.
(2) In the case where 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 for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. Where no transfer of property or interest therein from the Federal Government is involved, but property is acquired or improved under a program of Federal financial assistance, the recipient shall agree to include such covenant in any subsequent transfer of such property. When the property is obtained from the Federal Government, such covenant may also include a condition coupled with a right to be reserved by the Foundation to revert title to the property in the event of a breach of the covenant where, in the discretion of the responsible Foundation official, such a condition and right of reverter is appropriate to the program under which the real property is obtained and to the nature of the grant and the grantee. In such event if a transferee of real property proposes to mortgage or otherwise encumber the real property as security for financing construction of new, or improvement of existing, facilities on such property for the purposes for which the property was transferred, the responsible Foundation official may agree, upon request of the transferee and if necessary to accomplish such financing, and upon such conditions as he deems appropriate, to subordinate such right of reversion to the lien of such mortgage or other encumbrance.
(3) Transfers of surplus property are subject to regulations issued by the Administrator of the General Services Administration. (41 CFR 101-6.2.)
(b) Elementary and secondary schools. The requirements of paragraph (a) of this section with respect to any elementary or secondary school or school system shall be deemed to be satisfied if such school or school system (1) is subject to a final order of a court of the United States for the desegregation of such school or school system, and provides an assurance that it will comply with such order, including any future modification of such order, or (2) submits a plan for the desegregation of such school or school system which the
responsible Official of the Department of Health, Education, and Welfare determines is adequate to accomplish the purposes of the Act and this part, and provides reasonable assurance that it will carry out such plan. In any case of continuing Federal financial assistance the responsible Official of the Department of Health, Education, and Welfare may reserve the right to redetermine, after such period as may be specified by him, the adequacy of the plan to accomplish the purposes of the Act and this part. In any case in which a final order of a court of the United States for the desegregation of such school or school system is entered after submission of such a plan, such plan shall be revised to conform to such final order, including any future modification of such order.
(c) Assurances from institutions. (1) In the case of any application for Federal financial assistance to an institution of higher education (including assistance for construction, for research for a special training project, or for any other purpose), the assurance required by this section shall extend to admission practices and to all other practices relating to the treatment of students.
(2) The assurance required with respect to an institution of higher education, hospital, or any other institution, insofar as the assurance relates to the institution's practices with respect to admission or other treatment of individuals as students, patients, or clients of the institution or to the opportunity to participate in the provision of services or other benefits to such individuals, shall be applicable to the entire institution unless the applicant establishes, to the satisfaction of the responsible Foundation official, that the institution's practices in designated parts or programs of the institution will in no way affect its practices in the program of the institution for which Federal financial assistance is sought, or the beneficiaries of or participants in such program. If in any such case the assistance sought is for the construction of a facility or part of a facility, the assurance shall in any event extend to the entire facility and to facilities operated in connection therewith. (29 FR 16306, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973) $611.5 Dlustrative applications.
The following examples will illustrate the application of the foregoing provisions to some of the programs of the Foundation. (In all cases the discrimination prohibited is discrimination on the ground of race, color, or national origin prohibited by title VI of the Act and this part, as a condition of the receipt of Federal financial assistance.)
1. In programs for support to elementary or secondary schools such as for the acquisition of equipment discrimination by the recipient school district in any of its elementary or secondary schools, or by the recipient private institution, in the admission of students, or in the treatment of its students in any aspect of the educational process, is prohibited. In this and the following illustration the prohibition of discrimination in the treatment of students or other trainees includes the prohibition of discrimination among the students or trainees in the availability or use of any academic, dormitory, eating, recreational, or other facilities of the grantee or other recipient.
2. In a research, training, or other grant to a university for activities to be conducted in a graduate school, discrimination in the admission and treatment of students in the graduate school is prohibited, and the prohibition extends to the entire university unless it satisfies the responsible Foundation official that practices with respect to other parts or programs of the university will not interfere, directly or indirectly, with fulfillment of the assurance required with respect to the graduate school.
3. In a training grant to a hospital or other nonacademic institution, discrimination is prohibited in the selection of individuals to be trained and in their treatment by the grantee during their training. In a research or demonstration grant to such an institution, discrimination is prohibited with respect to any educational activity, any provision of medical or other services and any financial aid to individuals incident to the program.
4. In grant programs to assist in the construction of facilities for research or for the provision of educational services, assurances will be required that services will be provided without discrimination, to the same extent that discrimination would be prohibited as a condition of Federal operating grants for the support of such services. Thus, as a condition of grants for the construction
of academic, research, or other facilities at institutions of higher education, assurances will be required that there will be no discrimination in the admission or treatment of students. In other construction grants the assurances required will similarly be adapted to the nature of the activities to be conducted in the facilities for construction of which the grants have been authorized by Congress.
5. Upon transfers of real or personal property for research or educational uses, discrimination is prohibited to the same extent as in the case of grants for the construction of facilities or the provision of equipment for like purposes.
6. In some situations even though past discriminatory practices have been abandoned, the consequences of such practices continue to impede the full availability of a benefit. If the efforts required of the applicant or recip ient under $611.6(d) to provide information as to the availability of the program or activity, and the rights of beneficiaries under this regulation, have failed to overcome these consequences, it will become necessary for such applicant or recipient to take additional steps to make the benefits fully available to racial and nationality groups previously subjected to discrimination. This action might take the form, for example, of special arrangements for obtaining referrals which will insure that groups previously subjected to discrimination are adequately served but not the establishment of discriminatory qualifications for participation in any program.
7. Even though an applicant or recipient has never used discriminatory policies, the services and benefits of the program or activity it administers may not in fact be equally available to some racial or nationality groups. In such circumstances an applicant or recipient may properly give special consideration to race, color, or national origin to make the benefits of its program more widely available to such groups, not then being adequately served. For example, where a university is not adequately serving members of a particular racial or nationality group, it may establish special recruitment policies to make its program better known and more readily available to such group, and take other steps to provide that group with more adequate service. (29 FR 16306, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973)
8611.6 Compliance information.
(a) Cooperation and assistance. The responsible Foundation official shall, to the fullest extent practicable, 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 such records and submit to the responsible Foundation official timely, complete and accurate compliance reports at such times, and in such form and containing such information, as the responsible Foundation official may determine to be necessary to enable him to ascertain whether the recipient has complied or is complying with this part. In the case of any program under which a primary recipient extends Federal financial assistance to any other recipient, such other recipient shall also submit such compliance reports to the primary recipient as may be necessary to enable the primary recipient to carry out its obligations under this part.
(c) Access to sources of information. Each recipient shall permit access by the responsible Foundation official or his designee during normal business hours to such of its books, records, accounts, and other sources of information, and its facilities as may be pertinent to ascertain compliance with this 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 shall fail or refuse to furnish this information, the recipient shall so certify in its report and shall set forth what efforts it has made to obtain the information.
(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 responsible Foundation official finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this part. (Approved by the Office of Management and Budget under control number 3145-0087) (29 FR 16305, Dec. 4, 1964, as amended at 49 FR 37595, Sept. 25, 1984)
8611.7 Conduct of investigations.
(a) Periodic compliance reviews. The responsible Foundation official 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 individuals to be subjected to discrimination prohibited by this part may by himself or by a representative file with the responsible Foundation official a written complaint. A complaint must be filed not later than 90 days from the date of the alleged discrimination, unless the time for filing is extended by the responsible Foundation official
(C) Investigations. The responsible Foundation official 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 should 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 regulation, the responsible Foundation official will so inform the recipient and the matter will be resolved by inforinal means whenever possible. If it has been deter: mined that the matter car not be resolved by informal means, action will be taken as provided for in $ 511.8.
(2) If an investigation dois not war rant action pursuant to paragrap! (d)(1) of this section the responsible Foundation official will so inform thi recipient and the complain unt, if any in writing.
(e) Intimidatory or retaliatı ry acts pro hibited. No recipient or 01 her perso! shall intimidate, threaten, coerce, o discriminate against any in lividual fo the purpose of interfering with an right or privilege secured by section 60 of the Act or this part, or because h has made a complaint, to stified, as sisted, or participated in i ny manne in an investigation, pro eeding, a hearing under this part. Thi identity a
complainants shall be kept confiden- (2) There has been an express finding tial except to the extent necessary to on the record, after opportunity for carry out the purposes of this part, in- hearings, of a failure by the applicant cluding the conduct of any investiga- or recipient to comply with a requiretion, hearing, or judicial proceeding ment imposed by or pursuant to this arising thereunder.
(3) The action has been approved by $611.8 Procedure for effecting compli. the Director pursuant to $611.10(e) and ance.
(4) The expiration of thirty days after (a) General. If there appears to be a
the Director has filed with the Comfailure or threatened failure to comply
mittee of the House and the Committee with this part, and if the noncompli
of the Senate having legislative jurisance or threatened noncompliance can
diction over the program involved, a not be corrected by informal means,
full written report of the cir
cumstances and the grounds for such compliance with this part may be effected by the suspension or termi
action. nation of or refusal to grant or to con
Any action to suspend or terminate or tinue Federal financial assistance or by
to refuse to grant or to continue Fedany other means authorized by law.
eral financial assistance shall be limSuch other means may include, but are
ited to the particular political entity, not limited to (1) a reference to the De
or part thereof, or other applicant or partment of Justice with
recipient as to whom such a finding has
a recommendation that appropriate pro
been made and shall be limited in its
effect to the particular program, or ceedings be brought to enforce any
part thereof, in which such noncomplirights of the United States under any
ance has been so found. law of the United States (including
(d) Other means authorized by law. No other titles of the Act), or any assur
action to effect compliance by any ance or other contractual undertaking,
other means authorized by law shall be and (2) any applicable proceeding under
taken until (1) the responsible FoundaState or local law.
tion official has determined that com(b) Noncompliance with 8611.4. If an
pliance cannot be secured by voluntary applicant fails or refuses to furnish an
means, (2) the recipient or other person assurance required under $611.4 or oth
has been notified of its failure to comerwise fails to comply with that sec
ply and of the action to be taken to eftion, Federal financial assistance may fect compliance, and (3) the expiration be refused in accordance with the pro
of at least ten days from the mailing of cedures of paragraph (c) of this section.
such notice to the recipient or other The Foundation shall not be required person. During this period of at least to provide assistance in such a case ten days additional efforts shall be during the pendency of the administra- made to persuade the recipient or other tive proceedings under such subsection, person to comply with this part and to except that the Foundation shall con- take such corrective action as may be tinue assistance during the pendency of appropriate. such proceedings where such assistance is due and payable pursuant to an ap
[29 FR 16305, Dec. 4, 1964, as amended at 38
FR 17985, July 5, 1973; 51 FR 22938, June 24, plication therefor approved prior to the
1986) effective date of this part.
(c) Termination of or refusal to grant 8611.9 Hearings. or to continue Federal financial assist
(a) Opportunity for hearing. Whenever ance. No order suspending, terminat
an opportunity for a hearing is reing, or refusing to grant or continue
quired by $611.8(b), reasonable notice Federal financial assistance shall be
shall be given by registered or certified come effective until:
mail, return receipt requested, to the (1) The responsible Foundation offic affected applicant or recipient. This cial has advised the applicant or recipi notice shall advise the applicant or reent of his failure to comply and has de- cipient of the action proposed to be termined that compliance cannot be taken, the specific provision under secured by voluntary means,
which the proposed action against it is