Page images

An alteration is not structurally feasible when it has little likelihood of being accomplished without removing or altering a load-bearing structural member. Financial feasibility shall take into account the degree to which the alteration work is to be assisted by EPA assistance, the cost limitations of the program under which such assistance is provided, and the relative cost of accomplishing such alterations in manners consistent and inconsistent with accessibility.

$ 7.70 New construction.

87.75 Transition plan.

If structural changes to facilities are necessary to make the program accessible to handicapped persons, a recipient must prepare a transition plan.

(a) Requirements. The transition plan must set forth the steps needed to complete the structural changes required and must be developed with the assistance of interested persons, including handicapped persons or organizations representing handicapped persons. At a minimum, the transition plan must:

(1) Identify the physical obstacles in the recipient's facilities that limit handicapped persons' access to its program or activity,

(2) Describe in detail what the recipient will do to make the facilities accessible,

(3) Specify the schedule for the steps needed to achieve full program accessibility, and include a year-by-year timetable if the process will take more than one year,

(4) Indicate the person responsible for carrying out the plan.

(b) Availability. Recipients shall make available a copy of the transition plan to the OCR upon request and to the public for inspection at either the site of the project or at the recipient's main office.

(a) General. New facilities shall be designed and constructed to be readily accessible to and usable by handicapped persons. 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.

Subpart D-Requirements for Applicants and Recipients

$7.80 Applicants.

(a) Assurances—(1) General. Applicants for EPA assistance shall submit an assurance with their applications stating that, with respect to their programs or activities that receive EPA assistance, they will comply with the requirements of this part. Applicants must also submit any other information that the OCR determines is necessary for preaward review. The applicant's acceptance of EPA assistance is an acceptance of the obligation of this assurance and this part.

(2) Duration of assurance-(i) Real property. When EPA awards assistance in the form of real property, or assistance to acquire real property, or structures on the property, the assurance

[49 FR 1659, Jan. 12, 1984, as amended at 55 FR 52138, 52142, Dec. 19, 1990)

[blocks in formation]

(b) Additional compliance information.

will obligate the recipient, or transferee, during the period the real property or structures are used for the purpose for which EPA assistance is extended, or for another purpose in which similar services or benefits are provided. The transfer instrument shall contain a covenant running with the land which assures nondiscrimination. Where applicable, the covenant shall also retain a right of reverter which will permit EPA to recover the property if the covenant is ever broken.

(ii) Personal property. When EPA provides assistance in the form of personal property, the assurance will obligate the recipient for so long as it continues to own or possess the property.

(iii) Other forms of assistance. In all other cases, the assurance will obligate the recipient for as long as EPA assistance is extended.

(b) Wastewater treatment project. EPA Form 4700-4 shall also be submitted with applications for assistance under Title II of the Federal Water Pollution Control Act.

(c) Compliance information. Each applicant for EPA assistance shall submit regarding the program or activity that would receive EPA assistance:

(1) Notice of any lawsuit pending against the applicant alleging discrimination on the basis of race, color, sex, handicap, or national origin;

(2) A brief description of any applications pending to other Federal agencies for assistance, and of Federal assistance being provided at the time of the application; and

(3) A statement describing any civil rights compliance reviews regarding the applicant conducted during the two-year period before the application, and information concerning the agency or organization performing the reviews.

If necessary, the OCR may require recipients to submit data and information specific to certain programs to determine compliance where there is reason to believe that discrimination may exist in a program or activity receiving EPA assistance or to investigate a complaint alleging discrimination in a program or activity receiving EPA assistance. Requests shall be limited to data and information which is relevant to determining compliance and shall be accompanied by a written statement summarizing the complaint or setting forth the basis for the belief that discrimination may exist.

(c) Self-evaluation. Each recipient must conduct a self-evaluation of its administrative policies and practices, to consider whether such policies and practices may involve handicap discrimination prohibited by this part. When conducting the self-evaluation, the recipient shall consult with interested and involved persons including handicapped persons or organizations representing handicapped persons. The evaluation shall be completed within 18 months after the effective date of this part.

(d) Preparing compliance information. In preparing compliance information, a recipient must:

(1) [Reserved]

(2) Use the racial classifications set forth in $7.25 in determining categories of race, color or national origin.

(e) Maintaining compliance information. Recipients must keep records for paragraphs (a) and (b) of this section for three (3) years after completing the project. When any complaint or other action for alleged failure to comply with this part is brought before the

(Approved by the Office of Management and Budget under control number 2000-0006)

87.85 Recipients.

(a) Compliance information. Each recipient shall collect, maintain, and on request of the OCR, provide the following information to show compliance with this part:

(1) A brief description of any lawsuits pending against the recipient that al

179-141 0498-4-5

three-year period ends, the recipient the recipient's offices or facilities. shall keep records until the complaint Methods of notice may also include is resolved.

publishing in newspapers and maga(f) Accessibility to compliance infor- zines, and placing notices in recipient's mation. A recipient shall:

internal publications or on recipient's (1) Give the OCR access during nor- printed letterhead. Where appropriate, mal business hours to its books, such notice must be in a language or records, accounts and other sources of languages other than English. The noinformation, including its facilities, as tice must identify the responsible emmay be pertinent to ascertain compli- ployee designated in accordance with ance with this part;

$7.85. (2) Make compliance information (b) Deadline. Recipients of assistance available to the public upon request;

must provide initial notice by thirty and

(30) calendar days after award and con(3) Assist in obtaining other required tinuing notice for the duration of EPA information that is in the possession of

assistance. other agencies, institutions, or persons

$7.100 Intimidation and retaliation not under the recipient's control. If

prohibited. such party refuses to release that information, the recipient shall inform

No applicant, recipient, nor other the OCR and explain its efforts to ob- person shall intimidate, threaten, cotain the information.

erce, or discriminate against any indi(g) Coordination of compliance effort. If

vidual or group, either: the recipient employs fifteen (15) or

(a) For the purpose of interfering more employees, it shall designate at

with any right or privilege guaranteed least one person to coordinate its ef

by the Acts or this part, or forts to comply with its obligations

(b) Because the individual has filed a under this part.

complaint or has testified, assisted or

participated in any way in an inves(Approved by the Office of Management and

tigation, proceeding or hearing under Budget under control number 2000-0006)

this part, or has opposed any practice

made unlawful by this regulation. 87.90 Grievance procedures.

(a) Requirements. Each recipient shall Subpart E-Agency Compliance adopt grievance procedures that assure

Procedures the prompt and fair resolution of complaints which allege violation of this

$7.105 General policy. part.

EPA'S Administrator, Director of the (b) Exception. Recipients with fewer Office of Civil Rights, Project Officers than fifteen (15) full-time employees and other responsible officials shall need not comply with this section un- seek the cooperation of applicants and less the OCR finds a violation of this recipients in securing compliance with part or determines that creating a this part, and are available to provide grievance procedure will not signifi- help. cantly impair the recipient's ability to provide benefits or services.

87.110 Preaward compliance.

(a) Review of compliance information. $7.95 Notice of nondiscrimination.

Within EPA's application processing (a) Requirements. A recipient shall period, the OCR will determine whethprovide initial and continuing notice er the applicant is in compliance with that it does not discriminate on the this part and inform the Award Offibasis of race, color, national origin, or cial. This determination will be based handicap in a program or activity re- on the submissions required by $7.80 ceiving EPA assistance or, in programs and any other information EPA recovered by section 13, on the basis of ceives during this time (including comsex. Methods of notice must accommo- plaints) or has on file about the applidate those with impaired vision or cant. When the OCR cannot make a dehearing. At a minimum, this notice termination on the basis of this informust be posted in a prominent place in mation, additional information will be

requested from the applicant, local government officials, or interested persons or organizations, including handicapped persons or organizations representing such persons. The OCR may also conduct an on-site review only when it has reason to believe discrimination may be occurring in a program or activity which is the subject of the application.

(b) Voluntary compliance. If the review indicates noncompliance, an applicant may agree in writing to take the steps the OCR recommends to come into compliance with this part. The OCR must approve the written agreement before any award is made.

(c) Refusal to comply. If the applicant refuses to enter into such an agreement, the OCR shall follow the procedure established by paragraph (b) of $7.130.

(2) The OCR will notify the Award Official and the Assistant Attorney General for Civil Rights of the preliminary findings of noncompliance.

(d) Formal determination of noncompliance. After receiving the notice of the preliminary finding of noncompliance in paragraph (c) of this section, the recipient may:

(1) Agree to the OCR's recommendations, or

(2) Submit a written response sufficient to demonstrate that the preliminary findings are incorrect, or that compliance may be achieved through steps other than those recommended by OCR. If the recipient does not take one of these actions within fifty (50) calendar days after receiving this preliminary notice, the OCR shall, within fourteen (14) calendar days, send a formal written determination of noncompliance to the recipient and copies to the Award Official and Assistant Attorney General.

(e) Voluntary compliance time limits. The recipient will have ten (10) calendar days from receipt of the formal determination of noncompliance in which to come into voluntary compliance. If the recipient fails to meet this deadline, the OCR must start proceedings under paragraph (b) of 87.130.

(f) Form of voluntary compliance agreements. All agreements to come into voluntary compliance must:

(1) Be in writing;

(2) Set forth the specific steps the recipient has agreed to take, and

(3) Be signed by the Director, OCR or his/her designee and an official with authority to legally bind the recipient.

$7.115 Postaward compliance.

(a) Periodic review. The OCR may periodically conduct compliance reviews of any recipient's programs or activities receiving EPA assistance, including the request of data and information, and may conduct on-site reviews when it has reason to believe that discrimination may be occurring in such programs or activities.

(b) Notice of review. After selecting a recipient for review or initiating a complaint investigation in accordance with $7.120, the OCR will inform the recipient of:

(1) The nature of and schedule for review, or investigation; and

(2) Its opportunity, before the determination in paragraph (d) of this section is made, to make a written submission responding to, rebutting, or denying the allegations raised in the review or complaint.

(c) Postreview notice. (1) Within 180 calendar days from the start of the compliance review or complaint investigation, the OCR will notify the recip ient in writing by certified mail, return receipt requested, of:

(i) Preliminary findings;

(ii) Recommendations, if any, for achieving voluntary compliance; and

(iii) Recipient's right to engage in voluntary compliance negotiations where appropriate.

$ 7.120 Complaint investigations.

The OCR shall promptly investigate all complaints filed under this section unless the complainant and the party complained against agree to a delay pending settlement negotiations.

(a) Who may file a complaint. A person who believes that he or she or a specific class of persons has been discriminated against in violation of this part may file a complaint. The complaint may be filed by an authorized representative. A complaint alleging employment discrimination must identify at least one individual aggrieved by

such discrimination. Complaints solely (iii) The party complained against alleging employment discrimination may send the OCR a response to the against an individual on the basis of notice of complaint within thirty (30) race, color, national origin, sex or reli- calendar days of receiving it. gion shall be processed under the pro- (2) Informal resolution. (i) OCR shall cedures for complaints of employment attempt to resolve complaints infordiscrimination filed against recipients mally whenever possible. When a comof Federal assistance (see 28 CFR part plaint cannot be resolved informally, 42, subpart H and 29 CFR part 1691). OCR shall follow the procedures estabComplainants are encouraged but not lished by paragraphs (c) through (e) of required to make use of any grievance $7.115. procedure established under $7.90 be

(ii) (Reserved] fore filing a complaint. Filing a com

(e) Confidentiality. EPA agrees to plaint through a grievance procedure

keep the complainant's identity condoes not extend the 180 day calendar

fidential except to the extent necessary requirement of paragraph (b)(2 of this to carry out the purposes of this part, section.

including the conduct of any investiga(b) Where, when and how to file com

tion, hearing, or judicial proceeding plaint. The complainant may file a

arising thereunder. Ordinarily in comcomplaint at any EPA office. The com

plaints of employment discrimination, plaint may be referred to the region in

the name of the complainant will be which the alleged discriminatory acts

given to the recipient with the notice occurred.

of complaint. (1) The complaint must be in writing

(1) (Reserved] and it must describe the alleged dis

(g) Dismissal of complaint. If OCR's incriminatory acts which violate this

vestigation reveals no violation of this part.

part, the Director, OCR, will dismiss (2) The complaint must be filed with

the complaint and notify the complainin 180 calendar days of the alleged dis

ant and recipient. criminatory acts, unless

unless the

the OCR waives the time limit for good cause.

$7.125 Coordination with other agenThe filing of a grievance with the re

cies. cipient does not satisfy the require

If, in the conduct of a compliance rement that complaints must be filed within 180 days of the alleged discrimi

view or an investigation, it becomes

evident that another agency has jurisnatory acts. (c) Notification. The OCR will notify

diction over the subject matter, OCR the complainant and the recipient of

will cooperate with that agency during the agency's receipt of the complaint

the continuation of the review of inveswithin five (5) calendar days.

tigation. EPA will: (d) Complaint processing procedures.

(a) Coordinate its efforts with the After acknowledging receipt of a com

other agency, and plaint, the OCR will immediately initi

(b) Ensure that one of the agencies is ate complaint processing procedures.

designated the lead agency for this pur(1) Preliminary investigation. (i) Within pose. When an agency other than EPA twenty (20) calendar days of acknowl- serves as the lead agency, any action edgment of the complaint, the OCR

taken, requirement imposed, or deterwill review the complaint for accept

mination made by the lead agency, ance, rejection, or referral to the ap

other than a final determination to propriate Federal agency.

terminate funds, shall have the same (ii) If the complaint is accepted, the

effect as though such action had been OCR will notify the complainant and

taken by EPA. the Award Official. The OCR will also notify the applicant or recipient com

$7.130 Actions available to EPA to ob

tain compliance. plained against of the allegations and give the applicant or recipient oppor- (a) General. If compliance with this tunity to make a written submission part cannot be assured by informal responding to, rebutting, or denying means, EPA may terminate or refuse the allegations raised in the complaint. to award or to continue assistance.

« PreviousContinue »