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(2) Denying or limiting individuals in (d) The other characteristic or chartheir opportunity to participate in any acteristics are impractical to measure program or activity receiving Federal directly on an individual basis. financial assistance.

(Authority: 42 U.S.C. 6103) (c) Other forms of discrimination. The specific forms of age discrimination $110.13 Exceptions to the rules listed in paragraph (b) of this section

against age discrimination: Reasondo not necessarily constitute a com

able factors other than age. plete list.

A recipient is permitted to take an

action otherwise prohibited by $110.10 (Authority: 42 U.S.C. 6101-6103)

that is based on a factor other than

age, even though that action may have $110.11 Definitions of "normal operation" and "statutory objective.""

a disproportionate effect on persons of

different ages. An action may be based For purposes of these regulations, on a factor other than age only if the the terms normal operation and statu, factor bears a direct and substantial tory objective have the following mean relationship to the normal operation of ings:

the program or activity or to the (a) Normal operation means the oper- achievement of a statutory objective. ation of a program or activity without

(Authority: 42 U.S.C. 6103) significant changes that would impair its ability to meet its objectives.

$110.14 Burden of proof. (b) Statutory objective means any pur The burden of proving that an age pose of a program or activity expressly distinction or other action falls within stated in any Federal statute, State the exceptions outlined in $$110.12 and statute, or local statute or ordinance 110.13 is on the recipient of Federal fiadopted by an elected, general purpose nancial assistance. legislative body.

(Authority: 42 U.S.C. 6104) (Authority: 42 U.S.C. 6103)

$110.15 Affirmative action by recipi$ 110.12 Exceptions to the rules ents.

against age discrimination: Normal Even in the absence of a finding of operation or statutory objective of discrimination, a recipient may take any program or activity.

affirmative action to overcome the efA recipient is permitted to take an fects of conditions that resulted in limaction otherwise prohibited by $110.10 ited participation in the recipient's if the action reasonably takes into ac- program or activity on the basis of age. count age as a factor necessary to the (Authority: 42 U.S.C. 6103) normal operation or the achievement of any statutory objective of a program $110.16 Special benefits for children or activity. An action reasonably takes and the elderly. into account age as a factor necessary If a recipient operating a program or to the normal operation or the achieve activity provides special benefits to ment of any statutory objective of a the elderly or to children, the use of program or activity, if

age distinctions is presumed to be nec(a) Age is used as a measure or ap essary to the normal operation of the proximation of one or more other char

program or activity, notwithstanding acteristics;

the provisions of $ 110.12. (b) The other characteristic or char (Authority: 42 U.S.C. 6103) acteristics must be measured or ap [58 FR 40197, July 27, 1993, as amended at 65 proximated in order for the normal op

FR 68057, Nov. 13, 2000) eration of the program or activity to continue, or to achieve any statutory $110.17 Age distinctions contained in objective of the program or activity;

ED's regulations. (c) The other characteristic or char- Any age distinction contained in regacteristics can be reasonably measured ulations issued by ED is presumed to or approximated by the use of age; and be necessary to the achievement of a

statutory objective of the program or regulations apply shall sign a written activity to which the regulations assurance, on a form specified by ED, apply, notwithstanding the provisions that the program or activity will be opof $110.12.

erated in compliance with these regu

lations. An applicant may incorporate (Authority: 42 U.S.C. 6103)

this assurance by reference in subse(58 FR 40197, July 27, 1993, as amended at 65

quent applications to ED. FR 68057, Nov. 13, 2000)

(b) Duration of obligation. (1) In the

case of Federal financial assistance exSubpart C-Duties of ED

tended in the form of real property or Recipients

to provide real property or structures

on the property, the assurance will ob$110.20 General responsibilities.

ligate the recipient or, in the case of a Each ED recipient has primary re subsequent transfer, the transferee, for sponsibility for ensuring that its pro the period during which the real propgram or activity is in compliance with erty or structures are used for the purthe Act and these regulations and shall pose for which Federal financial assisttake steps to eliminate violations of ance is extended or for another purpose the Act. A recipient also has responsi- involving the provision of similar servbility to maintain records, provide in ices or benefits. formation, and to afford ED access to

(2) In the case of Federal financial asits records to the extent required for sistance extended to provide personal ED to determine whether the recipient property, the assurance will obligate is in compliance with the Act and these the recipient for the period during regulations.

which it retains ownership or posses

sion of the property. (Authority: 42 U.S.C. 6103)

(3) In all other cases the assurance (58 FR 40197, July 27, 1993, as amended at 65 will obligate the recipient for the peFR 68057, Nov. 13, 2000)

riod during which Federal financial as

sistance is extended. $110.21 Notice to subrecipients.

(c) Covenants. (1) If Federal financial If the recipient initially receiving assistance is provided in the form of funds makes the funds available to a real property or interest in the propsubrecipient, the recipient shall notify erty from ED, the instrument effecting the subrecipient of its obligations or recording this transfer must contain under the Act and these regulations. a covenant running with the land to as(Authority: 42 U.S.C. 6103)

sure nondiscrimination for the period

during which the real property is used $110.22 Information requirements. for a purpose for which the Federal fi

nancial assistance is extended or for Each recipient shall(a) Provide ED with information that

another purpose involving the proviED determines is necessary to ascer

sion of similar services or benefits. tain whether the recipient is in compli

(2) If no transfer of property is inance with the Act and these regula

volved but property is purchased or imtions; and

proved with Federal financial assist(b) Permit reasonable access by ED

ance, the recipient shall agree to in

clude the covenant described in parato the books, records, accounts, reports, and other recipient facilities and

graph (b)(2) of this section in the insources of information to the extent

strument effecting or recording any ED determines is necessary to ascer

subsequent transfer of the property. tain whether a recipient is in compli

(3) If Federal financial assistance is ance with the Act and these regula provided in the form of real property or tions.

interest in the property from ED, the

covenant must also include a condition (Authority: 42 U.S.C. 6103)

coupled with a right to be reserved by

ED to revert title to the property in $ 110.23 Assurances required.

the event of a breach of the covenant. (a) Assurances. An applicant for Fed If a transferee of real property proposes eral financial assistance to which these to mortgage or otherwise encumber the

real property as security for financing table resolution of complaints alleging construction of new, or improvement of any action that would be prohibited by existing, facilities on the property for the Act or these regulations. the purposes for which the property was transferred, ED may, upon request

(Authority: 42 U.S.C. 6103) of the transferee and if necessary to ac

[58 FR 40197, July 27, 1993, as amended at 65 complish that financing and upon con

FR 68057, Nov. 13, 2000) ditions that ED deems appropriate, agree to forbear the exercise of the Subpart D-Investigation, Concilright to revert title for as long as the iation, and Enforcement Prolien of the mortgage or other encum

cedures brance remains effective. (Authority: 42 U.S.C. 6103)

$ 110.30 Compliance reviews. (58 FR 40197, July 27, 1993, as amended at 65

(a) ED may conduct compliance reFR 68057, Nov. 13, 2000)

views, pre-award reviews, and other

similar procedures that permit ED to $110.24 Recipient assessment of age

investigate and correct violations of distinctions.

the Act and of these regulations. ED (a) As part of a compliance review

may conduct these reviews in the abunder $110.30 or a complaint investiga

sence of a complaint against a recipition under $110.31, ED may require a

ent. The review may be as comprehenrecipient employing the equivalent of

sive as necessary to determine whether 15 or more full-time employees to com

a violation of these regulations ocplete a written self-evaluation, in a

curred. manner specified by ED, of any age dis

(b) If a compliance review or pretinction imposed in its program or ac

award review indicates a violation of tivity receiving Federal financial as

the Act or these regulations, ED atsistance from ED to assess the recipi

tempts to achieve voluntary complient's compliance with the Act.

ance with the Act. If voluntary compli(b) Whenever an assessment indicates

ance cannot be achieved, ED arranges a violation of the Act or these regula

for enforcement as described in $110.35. tions, the recipient shall take correc (Authority: 42 U.S.C. 6103) tive action.

$110.31 Complaints. (Authority: 42 U.S.C. 6103)

(a) Any person, individually or as a $ 110.25 Designation of responsible em member of a class or on behalf of oth

ployee, notice, and grievance proce ers, may file a complaint with ED aldures.

leging discrimination prohibited by the (a) Designation of responsible employee. Act or by these regulations based on an Each recipient shall designate at least action occurring on or after July 1, one employee to coordinate its efforts 1979. A complainant shall file a comto comply with and carry out its re plaint within 180 days from the date sponsibilities under the Act and these the complainant first had knowledge of regulations, including investigation of the alleged discrimination. However, any complaints that the recipient re for good cause shown, ED may extend ceives alleging any actions that are this time limit. prohibited by the Act and these regula (b) ED attempts to facilitate the filtions.

ing of complaints, if possible, by(b) Notice. A recipient shall notify its (1) Accepting as a complete combeneficiaries, in a continuing manner, plaint any written statement that of information regarding the provisions identifies the parties involved and the of the Act and these regulations. The date the complainant first had knowlnotification must also identify the re edge of the alleged violation, describes sponsible employee by name or title, generally the action or practice comaddress, and telephone number.

plained of, and is signed by the com(c) Grievance procedures. A recipient plainant; shall adopt and publish grievance pro (2) Freely permitting a complainant cedures providing for prompt and equi to add information to the complaint to

meet the requirements of a complete shall send a copy of the agreement to complaint;

ED. ED takes no further action on the (3) Widely disseminating information complaint unless informed that the regarding the obligations of recipients

complainant or the recipient fails to under the Act and these regulations;

comply with the agreement, at which (4) Notifying the complainant and

time ED reinstates the complaint. the recipient of their rights and obliga

(d) The mediator shall protect the tions under the complaint procedure,

confidentiality of all information obincluding the right to have a representative at all stages of the complaint

tained in the course of the mediation procedure; and

process. No mediator shall testify in (5) Notifying the complainant and

any adjudicative proceeding, produce the recipient (or their representatives)

any document, or otherwise disclose of their right to contact ED for infor any information obtained in the course mation and assistance regarding the

of the mediation process without prior complaint resolution process.

approval of the head of the mediation (c) A complaint is considered to be agency. complete on the date that ED receives (e) The mediation will proceed for a all the information necessary to proc maximum of 60 days after a complaint ess it, as described in paragraph (b)(1)

is filed with ED. Mediation ends ifof this section.

(1) 60 days elapse from the time the (d) ED returns to the complainant complaint is received; any complaint outside the jurisdiction

(2) Prior to the end of the 60-day peof these regulations and states the reason or reasons why it is outside the ju

riod, an agreement is reached; or risdiction of the regulations.

(3) Prior to the end of the 60-day pe

riod, the mediator determines that (Authority: 42 U.S.C. 6103)

agreement cannot be reached. $110.32 Mediation.

(f) The mediator shall return unre

solved complaints to ED. (a) ED promptly refers to the Federal Mediation and Conciliation Service or (Authority: 42 U.S.C. 6103) to the mediation agency designated by the Secretary of Health and Human

$110.33 Investigation. Services, all complaints that

(a) Initial investigation. ED inves(1) Fall within the jurisdiction of the

tigates complaints that are unresolved Act and these regulations, unless the

after mediation or reopened because of age distinction complained of is clearly

a violation of the mediation agreewithin an exemption under $110.2(b);

ment. ED uses methods during the inand (2) Contain all information necessary

vestigation to encourage voluntary resfor further processing.

olution of the complaint, including dis(b) Both the complainant and the re

cussions with the complainant and recipient shall participate in the medi

cipient to establish the facts and, if ation process to the extent necessary

possible, resolve the complaint to the to reach an agreement or to make an

mutual satisfaction of the parties. ED informed judgment that an agreement

may seek the assistance of any inis not possible. The recipient and the volved State, local, or other Federal complainant need not meet with the agency. mediator at the same time, and the (b) Formal investigation, conciliation, meeting may be conducted by tele and hearing. If ED cannot resolve the phone or other means of effective dia complaint during the early stages of logue if a personal meeting between the investigation, ED completes the inthe party and the mediator is imprac vestigation of the complaint and tical.

makes formal findings. If the inves(c) If the complainant and the recipi

tigation indicates a violation of the ent reach an agreement, the mediator

Act or these regulations, ED attempts shall prepare a written statement of

to achieve voluntary compliance. If ED the agreement and have the complain

cannot obtain voluntary compliance, ant and recipient sign it. The mediator

ED begins enforcement as described in (1) ED has advised the recipient of its $110.35.

failure to comply with the Act or with (Authority: 42 U.S.C. 6103)

these regulations and has determined

that voluntary compliance cannot be (58 FR 40197, July 27, 1993, as amended at 65

obtained; and FR 68057, Nov. 13, 2000)

(2) Thirty days have elapsed after the $110.34 Prohibition against intimida Secretary has sent a written report of tion or retaliation.

the circumstances and grounds of the A recipient may not engage in acts of

action to the committees of the Conintimidation or retaliation against any gress having legislative jurisdiction person who

over the program or activity involved. (a) Attempts to assert a right pro The Secretary files a report if any actected by the Act or these regulations; tion is taken under $110.35(a)(1). or

(d) The Secretary also may defer (b) Cooperates in any mediation, in granting new Federal financial assistvestigation, hearing, or other part of ance from ED to a recipient if termiED's investigation, conciliation, and nation proceedings in $110.35(a)(1) are enforcement process.

initiated. (Authority: 42 U.S.C. 6103)

(1) New Federal financial assistance

from ED includes all assistance for $110.35 Compliance procedure.

which ED requires an application or (a) ED may enforce the Act and these approval, including renewal or continuregulations under $110.35(a) (1) or (2) ation of existing activities, or authorthrough

ization of new activities, during the de(1) Termination of, or refusal to ferral period. New Federal financial asgrant or continue, a recipient's Federal sistance from ED does not include infinancial assistance from ED for a pro creases in funding as a result of gram or activity in which the recipient changed computation of formula has violated the Act or these regula awards or assistance approved prior to tions. The determination of the recipi the initiation of termination proent's violation may be made only after ceedings. a recipient has had an opportunity for

(2) ED does not begin a deferral until a hearing on the record before an ad

the recipient has received a notice of ministrative law judge.

an opportunity for a hearing under (2) Any other means authorized by

$110.35(a)(1). A deferral may not conlaw, including, but not limited to

tinue for more than 60 days unless a (i) Referral to the Department of Jus

hearing has begun within that time or tice for proceedings to enforce any rights of the United States or obliga

the time for beginning the hearing has tions of the recipient created by the

been extended by mutual consent of Act or these regulations; or

the recipient and ED. A deferral may (ii) Use of any requirement of or re

not continue for more than 30 days ferral to any Federal, State, or local

after the close of the hearing, unless government agency that will have the the hearing results in a finding against effect of correcting a violation of the

the recipient. Act or of these regulations.

(Authority: 42 U.S.C. 6104) (b) ED limits any termination or refusal under $110.35(a)(1) to the par

[58 FR 40197, July 27, 1993, as amended at 65 ticular recipient and to the particular

FR 68057, Nov. 13, 2000) program or activity ED finds in violation of the Act or these regulations.

$ 110.36 Hearings, decisions, and post

termination proceedings. ED will not base any part of a termination on a finding with respect to any

(a) The following ED procedural proprogram or activity that does not re visions applicable to Title VI of the ceive Federal financial assistance from Civil Rights Act of 1964 also apply to ED.

ED's enforcement of these regulations: (C) ED takes no action under para 34 CFR 100.9 and 100.10 and 34 CFR part graph (a) of this section until

101.

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