[Federal Register: March 6, 2003 (Volume 68, Number 44)]
[Rules and Regulations]
[Page 10903-10910]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06mr03-14]
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Part V
Department of Homeland Security
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Office of the Secretary
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6 CFR Part 21
Regulations Regarding Nondiscrimination on the Basis of Race, Color, or
National Origin in Programs or Activities Receiving Federal Financial
Assistance from the Department of Homeland Security; Interim Fin
[[Page 10904]]
al Rule
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 21
RIN Number 1601-AA03
Regulations Regarding Nondiscrimination on the Basis of Race,
Color, or National Origin in Programs or Activities Receiving Federal
Financial Assistance From the Department of Homeland Security
AGENCY: Office of the Secretary, Homeland Security.
ACTION: Interim final rule.
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SUMMARY: This interim final rule effectuates the provisions of title VI
of the Civil Rights Act of 1964 to the end that no person in the United
States shall, on the grounds 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 or activity
receiving Federal financial assistance from the Department of Homeland
Security.
DATES: These interim final rules are effective March 6, 2003. Written
comments may be submitted to the Department of Homeland Security on or
before April 7, 2003.
ADDRESSES: Submit written comments (preferably an original and three
copies) to Associate General Counsel (General Law), Department of
Homeland Security, Washington, DC 20528.
FOR FURTHER INFORMATION CONTACT: Robert Coyle, (202) 282-8410, not a
toll free call.
SUPPLEMENTARY INFORMATION:
I. Background
On November 25, 2002, the President signed into law the Homeland
Security Act of 2002 (Pub. L. 107-296), which created the new
Department of Homeland Security (DHS). Pursuant to the provisions of
the Act, the new Department came into existence on January 24, 2003.
In order to establish procedures to facilitate the operations of
the new Department, DHS is issuing an initial series of proposed and
interim final regulations.
II. The Interim Final Rule
This interim final rule effectuates the provisions of title VI of
the Civil Rights Act of 1964 to the end that no person in the United
States shall, on the grounds 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 or activity
receiving Federal financial assistance from the Department of Homeland
Security.
III. Procedural Requirements
Because the DHS came into existence on January 24, 2003, it is
necessary to promptly establish procedures to facilitate the operations
of the new Department. Furthermore, this interim final rule parallels
the existing operational regulations of other cabinet-level agencies to
effectuate the provisions of title VI of the Civil Rights Act of 1964.
Similar regulations were applicable to virtually all of the components
being transferred to DHS from other cabinet-level agencies and the
regulations are only being technically adapted for DHS, imposing no
substantive requirement that is different from the existing regulations
of these cabinet-level agencies. Accordingly, the Department has
determined that notice and public procedure are impracticable and
contrary to the public interest pursuant to 5 U.S.C. 553(b)(B). For the
same reasons, the Department has determined that this interim rule
should be issued without a delayed effective date pursuant to 5 U.S.C.
553 (d)(3).
It has been determined that this rulemaking is not a significant
regulatory action for the purposes of Executive Order 12866.
Accordingly, a regulatory impact analysis is not required.
Because no notice of proposed rulemaking is required, the
provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do
not apply.
This regulation has been reviewed and approved by the Attorney
General pursuant to Executive Order 12250 and reviewed by the Equal
Employment Opportunity Commission pursuant to Executive Order 12067.
List of Subjects in 6 CFR Part 21
Civil rights, Reporting and recordkeeping requirements.
Authority and Issuance
For the reasons set forth above, 6 CFR chapter I is amended by
adding part 21 to read as follows:
PART 21--NONDISCRIMINATION ON THE BASIS OF RACE, COLOR, OR NATIONAL
ORIGIN IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL
ASSISTANCE FROM THE DEPARTMENT OF HOMELAND SECURITY
Sec.
21.1 Purpose.
21.3 Application.
21.4 Definitions.
21.5 Discrimination prohibited.
21.7 Assurances required.
21.9 Compliance information.
21.11 Conduct of investigations.
21.13 Procedure for effecting compliance.
21.15 Hearings.
21.17 Decisions and notices.
21.19 Judicial review.
21.21 Effect on other regulations, forms, and instructions.
Appendix A to Part 21--Activities to Which This Part Applies
Appendix B to Part 21--Activities to Which This Part Applies When a
Primary Objective of the Federal Financial Assistance Is to Provide
Employment
Authority: 5 U.S.C. 310, 42 U.S.C. 2000d-2000d-7.
Sec. 21.1 Purpose.
The purpose of this part is to effectuate the provisions of title
VI of the Civil Rights Act of 1964 (the Act) to the end that no person
in the United States shall, on the grounds 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 or
activity receiving Federal financial assistance from the Department of
Homeland Security. The provisions established by this part shall be
effective for all components of the Department, including all
Department components that are transferred to the Department, except to
the extent that a Department component already has existing title VI
regulations.
Sec. 21.3 Application.
(a) This part applies to any program for which Federal financial
assistance is authorized under a law administered by the Department,
including the types of Federal financial assistance listed in appendix
A to this part. It also applies to money paid, property transferred, or
other Federal financial assistance extended after the effective date of
this part pursuant to an application approved before that effective
date. 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
before the effective date of this part, except where such assistance
was subject to the title VI regulations of any agency whose
responsibilities are now exercised by this Department;
(3) Any assistance to any individual who is the ultimate
beneficiary; or
(4) Any employment practice, under any such program, of any
employer, employment agency, or labor
[[Page 10905]]
organization, except to the extent described in Sec. 21.5(c). The fact
that a type of Federal financial assistance is not listed in appendix A
to this part shall not mean, if title VI of the Act is otherwise
applicable, that a program is not covered. Other types of Federal
financial assistance under statutes now in force or hereinafter enacted
may be added to appendix A to this part.
(b) In any program receiving Federal financial assistance in the
form, or for the acquisition, of real property or an interest in real
property, to the extent that rights to space on, over, or under any
such property are included as part of the program receiving that
assistance, the nondiscrimination requirement of this part shall extend
to any facility located wholly or in part in that space.
Sec. 21.4 Definitions.
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 designee thereof,
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.
(e) Program or activity and program mean all of the operations of
any entity described in paragraphs (e)(1) through (4) of this section,
any part of which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other
State or local government entity) to which the assistance is extended,
in the case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution,
or a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 8801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities described in paragraph (e)(1), (2), or (3) of this section.
(f) Recipient may mean any State, territory, possession, the
District of Columbia, or the Commonwealth of Puerto Rico, or any
political subdivision thereof, or instrumentality thereof, any public
or private agency, institution, or organization, or other entity, or
any individual, in any State, territory, possession, the District of
Columbia, or the Commonwealth of Puerto Rico, to whom Federal financial
assistance is extended, directly or through another recipient,
including any successor, assignee, or transferee thereof, but such term
does not include any ultimate beneficiary.
(g) Secretary means the Secretary of the Department of Homeland
Security or, except in Sec. 21.17(e), any delegatee of the Secretary.
Sec. 21.5 Discrimination prohibited.
(a) General. No person in the United States shall, on the grounds
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 actions prohibited. (1) A recipient to
which this part applies may not, directly or through contractual or
other arrangements, on the grounds of race, color, or national origin:
(i) Deny a person any service, financial aid, or other benefit
provided under the program;
(ii) Provide 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) Subject a person to segregation or separate treatment in any
matter related to his receipt of any service, financial aid, or other
benefit under the program;
(iv) Restrict a person in any way in the enjoyment of any advantage
or privilege enjoyed by others receiving any service, financial aid, or
other benefit under the program;
(v) Treat 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) Deny a person an opportunity to participate in the program
through the provision of services or otherwise or afford him an
opportunity to do so which is different from that afforded others under
the program; or
(vii) Deny a person the opportunity to participate as a member of a
planning, advisory, or similar body which is an integral part of the
program.
(2) A recipient, 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 person 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; may 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 with respect to
individuals of a particular race, color, or national origin.
(3) In determining the site or location of facilities, a recipient
or applicant may not make selections with the purpose or effect of
excluding persons from, denying them the benefits of, or
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subjecting them to discrimination under any program to which this
regulation applies, on the grounds of race, color, or national origin;
or with the purpose or effect of defeating or substantially impairing
the accomplishment of the objectives of the Act or this part.
(4) As used in this section the services, financial aid, or other
benefits provided under a program receiving Federal financial
assistance include any service, financial aid, or other benefit
provided in or through a facility provided with the aid of Federal
financial assistance.
(5) The enumeration of specific forms of prohibited discrimination
in this paragraph does not limit the generality of the prohibition in
paragraph (a) of this section.
(6) This part does not prohibit the consideration of race, color,
or national origin if the purpose and effect are to remove or overcome
the consequences of practices or impediments which have restricted the
availability of, or participation in, the program or activity receiving
Federal financial assistance, on the grounds of race, color, or
national origin. Where prior discriminatory practice or usage 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 or activity to which this part
applies, the applicant or recipient must take affirmative action to
remove or overcome the effects of the prior discriminatory practice or
usage. Even in the absence of prior discriminatory practice or usage, a
recipient in administering a program or activity to which this part
applies, may take affirmative action to assure that no person is
excluded from participation in or denied the benefits of the program or
activity on the grounds of race, color, or national origin.
(c) Employment practices. (1) Where a primary objective of the
Federal financial assistance to a program to which this part applies is
to provide employment, a recipient subject to this part 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, and
use of facilities). Such recipient shall take affirmative action to
insure 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 pursuant to Part III of
Executive Order 11246 or any Executive order which supersedes it.
(2) Federal financial assistance to programs under laws funded or
administered by the Department which have as a primary objective the
providing of employment include those set forth in appendix B to this
part.
(3) 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, deny them the benefits of, or subject them to
discrimination under any program to which this regulation applies, the
provisions of paragraph (c)(1) 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 opportunity
to, and nondiscriminatory treatment of, beneficiaries.
(d) Facility location or site. A recipient may not make a selection
of a site or location of a facility if the purpose of that selection,
or its effect when made, is to exclude individuals from participation
in, to deny them the benefits of, or to subject them to discrimination
under any program or activity to which this rule applies, on the
grounds of race, color, or national origin; or if the purpose is to, or
its effect when made will substantially impair the accomplishment of
the objectives of this part.
Sec. 21.7 Assurances required.
(a) General. (1) Every application for Federal financial assistance
to which this part applies, except an application to which paragraph
(b) of this section applies, 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. Every award of
Federal financial assistance shall require the submission of such an
assurance. 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 or
benefits, or for as long as the recipient retains ownership or
possession of the property, whichever is longer. In all other cases the
assurance shall obligate the recipient for the period during which
Federal financial assistance is extended to the program. The Secretary
shall specify the form of the foregoing assurances, and the extent to
which like assurances will be required of subgrantees, contractors and
subcontractors, transferees, successors in interest, and other
participants. 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 with 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 Department to revert title to the
property in the event of a breach of the covenant where, in the
discretion of the Secretary, such a condition and right of reverter is
appropriate to the statute 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 Secretary may agree, upon
request of the transferee and if
[[Page 10907]]
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.
(b) Continuing Federal financial assistance. Every application by a
State or a State agency for continuing Federal financial assistance to
which this part applies (including the types of Federal financial
assistance listed in appendix A to this part) shall as a condition to
its approval and the extension of any Federal financial assistance
pursuant to the application:
(1) Contain or be accompanied by a statement 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; and
(2) Provide or be accompanied by provision for such methods of
administration for the program as are found by the Secretary to give
reasonable guarantee that the applicant and all recipients of Federal
financial assistance under such program will comply with all
requirements imposed by or pursuant to this part.
(c) Assurance 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 special
training projects, for student loans 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.
Sec. 21.9 Compliance information.
(a) Cooperation and assistance. The Secretary 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 Secretary timely, complete, and accurate compliance
reports at such times, and in such form and containing such
information, as the Secretary may determine to be necessary to enable
him to ascertain whether the recipient has complied or is complying
with this part. In the case in 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. In general, recipients should have
available for the Secretary racial and ethnic data showing the extent
to which members of minority groups are beneficiaries of programs
receiving Federal financial assistance.
(c) Access to sources of information. Each recipient shall permit
access by the Secretary 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 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 for 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.
Sec. 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 that he or she, or any
specific class of persons, has been subjected to discrimination
prohibited by this part may by himself or herself, 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 Sec. 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.
Sec. 21.13 Procedure for effecting compliance.
(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 referral to the Department of Justice with a recommendation
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 Sec. 21.7. If an applicant fails or refuses
to furnish an assurance required under Sec. 21.7 or otherwise fails or
refuses to comply with a requirement imposed by or
[[Page 10908]]
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 Sec. 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. (1) No order suspending, terminating, or refusing
to grant or continue Federal financial assistance shall become
effective until:
(i) The Secretary has advised the applicant or recipient of his
failure to comply and has determined that compliance cannot be secured
by voluntary means;
(ii) 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;
(iii) The action has been approved by the Secretary pursuant to
Sec. 21.17(e); and
(iv) 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.
(2) 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 authorized 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.
Sec. 21.15 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by Sec. 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 action, 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
Sec. 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, DC, 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, immaterial, 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 Federal statutes, authorities, or other
means by which Federal financial assistance is extended and 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 Sec. 21.17.
Sec. 21.17 Decisions and notices.
(a) Procedure on decisions by hearing examiner. 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
[[Page 10909]]
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 Sec. 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 imposed.
(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, to which this regulation
applies, 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 to which this regulation applies will thereafter
be extended 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 affected 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 why
it believes such official 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.
Sec. 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.
Sec. 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 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 Sec.
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 imposed 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.
Appendix A to Part 21--Activities to Which This Part Applies
Note: Failure to list a type of Federal assistance in appendix A
shall not mean, if
[[Page 10910]]
title VI is otherwise applicable, that a program is not covered.
1. Lease of real property and the grant of permits, licenses,
easements and rights-of-way covering real property under control of
the U.S. Coast Guard (14 U.S.C. 93 (n) and (o)).
2. Utilization of U.S. Coast Guard personnel and facilities by
any State, territory, possession, or political subdivision thereof
(14 U.S.C. 141(a)).
3. Use of U.S. Coast Guard personnel for duty in connection with
maritime instruction and training by the States, territories, and
the Commonwealth of Puerto Rico (14 U.S.C. 148).
4. Use of obsolete and other U.S. Coast Guard material by sea
scout service of Boy Scouts of America, any incorporated unit of the
U.S. Coast Guard auxiliary, and public body or private organization
not organized for profit (14 U.S.C. 641(a)).
5. U.S. Coast Guard Auxiliary Program (14 U.S.C. 821-832).
6. U.S. Coast Guard Boating Safety Financial Assistance program.
7. U.S. Coast Guard State Access to Oil Spill Liability Trust
Fund.
8. U.S. Coast Guard Bridge Alteration.
9. Use of Customs personnel and facilities by any State,
territory, possession, or political subdivision thereof.
10. Use of Customs personnel for duty in connection with
instruction and training by the States, territories and the
Commonwealth of Puerto Rico.
11. Grants to educational institutions, associations, States, or
other entities for research, analysis, or programs or strategies
relating to trade issues.
Appendix B to Part 21--Activities to Which This Part Applies When a
Primary Objective of the Federal Financial Assistance is To Provide
Employment
Note: Failure to list a type of Federal assistance in appendix B
shall not mean, if title VI is otherwise applicable, that a program
is not covered.
[Reserved]
Dated: February 28, 2003.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 03-5144 Filed 3-5-03; 8:45 am]
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