[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]                         


[[Page 10903]]

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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]
BILLING CODE 4410-10-P