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Federal Coordination and Compliance Section

10 CFR 1040

TITLE 10--ENERGY

CHAPTER X--DEPARTMENT OF ENERGY (GENERAL PROVISIONS)

PART 1040--NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS--Table of Contents

Subpart H--Enforcement


Means of Effecting Compliance

Sec. 1040.111 Means available.

If there appears to be a failure or threatened failure to comply
with any of the provisions of this part, and if the noncompliance or
threatened noncompliance cannot be corrected by voluntary means,
compliance with this part may be effected by the suspension, 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:
(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 including the Civil Rights Act of 1964, other
statutes to which this part applies, or any assurance or other
contractual undertaking; and
(b) Any applicable proceeding under State or local law.

Sec. 1040.112 Noncompliance with assurances.

If an applicant fails or refuses to furnish an assurance required
under Sec. 1040.4 of subpart A of this part, or otherwise fails or
refuses to comply with a requirement imposed by this part, such as
Sec. 1040.102(c), subpart G of this part, action to refuse Federal
financial assistance shall be taken in accordance with procedures of
Sec. 1040.114 of this subpart.

Sec. 1040.113 Deferral.

DOE may defer action on pending applications for assistance in such
a case during pendency of administrative proceedings under Sec. 1040.114
of this subpart.

Sec. 1040.114 Termination of or refusal to grant or to continue Federal
financial assistance.

No order suspending, terminating, or refusing to grant or continue
Federal financial assistance is to become effective until:
(a) Informational notice of the proposed order is given to the
Executive Assistant to the Secretary, if the action is contemplated
against a State or local government;
(b) The Director has advised the applicant or recipient of his/her
failure to comply and has determined that compliance cannot be secured
by voluntary means. (It will be determined by the Director that
compliance cannot be secured by voluntary means if it has not been
secured within the time periods specifically set forth by this part.)
(c) There has been an express finding on the record, after
opportunity for hearing, of a failure by the applicant or recipient to
comply with the requirement imposed by or under this part:
(d) The FERC has notified the Secretary of its finding of
noncompliance; and
(e) The expiration of 30 days after the Secretary or a designee has
filed with the committee of the House of Representatives 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. Any action to suspend, terminate, or to refuse to grant or
to continue Federal financial

[[Page 767]]

assistance is to be limited to the particular political entity or part
of that entity or other applicant or recipient to whom the finding has
been made and shall be limited in its effect to the particular program
or part of the program in which the noncompliance has been found.

Sec. 1040.115 Other means authorized by law.

No action to effect compliance by any other means authorized by law
is to be taken until--
(a) The Director has determined that compliance cannot be secured by
voluntary means;
(b) The recipient or other person has been notified by the Director,
in writing, that it has been found in formal noncompliance and that it
has 10 days before formal enforcement proceedings begin in which to
enter into a written voluntary compliance agreement.
(c) The expiration of at least ten (10) days from the mailing of the
notice to the recipient or other person.

Opportunity for Hearing

Sec. 1040.121 Notice of opportunity for hearing.

(a) Whenever an opportunity for hearing is required by
Sec. 1040.113, the Director, OEO, or his/her designee shall serve on the
applicant or recipient, by registered, certified mail, or return receipt
requested, a notice of opportunity for hearing which will:
(1) Inform the applicant or recipient of the action proposed to be
taken and of his/her right within twenty (20) days of the date of the
notice of opportunity for hearing, or another period which may be
specified in the notice, to request a hearing;
(2) Set forth the alleged item or items of noncompliance with this
part;
(3) Specify the issues;
(4) State that compliance with this part may be effected by an order
providing for the termination of or refusal to grant or to continue
assistance, as appropriate, under the program involved; and
(5) Provide that the applicant or recipient may file a written
answer with the Director, OEO, to the notice of opportunity for hearing
under oath or affirmation within twenty (20) days of its date, or
another period which may be specified in the notice.
(b) An applicant or recipient may file an answer, and waive or fail
to request a hearing, without waiving the requirement for findings of
fact and conclusions of law or the right to seek review by the FERC in
accordance with the provisions established by the FERC. At the time an
answer is filed, the applicant or recipient may also submit written
information or argument for the record if he/she does not request a
hearing.
(c) An answer or stipulation may consent to the entry of an order in
substantially the form set forth in the notice of opportunity for
hearing. The order may be entered by the General Counsel or his/her
designee. The consent of the applicant or recipient to the entry of an
order shall constitute a waiver by him/her of a right to:
(1) A hearing under Sec. 902 of title IX of the Education Amendments
of 1972, Section 602 of title VI of the Civil Rights Act of 1964,
Section 16, Section 401 and Sec. 1040.113;
(2) Findings of fact and conclusions of law; and
(3) Seek review by the FERC.
(d) The failure of an applicant or recipient to file an answer
within the period prescribed or, if the applicant or recipient requests
a hearing, his failure to appear at the hearing shall constitute a
waiver by him/her of a right to:
(1) A hearing under Section 902 of title IX of the Education
Amendments of 1972, Section 602 of title VI of the Civil Rights Act of
1964, Section 16, Section 401, and Sec. 1040.113;
(2) Conclusions of law; and
(3) Seek review by the FERC.

In the event of such a waiver, the Secretary or a designee may find the
facts on the basis of the record available and enter an order in
substantially the form set forth in the notice of opportunity for
hearing.
(e) An order entered in accordance with paragraph (c) or (d) of this
section shall constitute the final decision of DOE unless the FERC,
within forty-five (45) days after entry of the order, issues a
subsequent decision which

[[Page 768]]

shall then constitute the final decision of DOE.
(f) A copy of an order entered by the FERC official shall be mailed
to the applicant or recipient and to the complainant, if any.

Sec. 1040.122 Request for hearing or review.

Whenever an applicant or recipient requests a hearing or review in
accordance with Sec. 1040.121(a)(1) or (b), the DOE General Counsel or
his/her designee shall submit such request along with other appropriate
documents to the FERC.

Sec. 1040.123 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
programs to which this part applies or noncompliance with this part and
the regulations of one or more other Federal departments or agencies
issued to implement the requirements of the laws cited in this part, the
Secretary or a designee, in coordination with FERC may, by agreement
with other departments or agencies, where applicable, provide for the
conduct of consolidated or joint hearings and for the application to
such hearings of rules of procedure not inconsistent with this part.
Final decision in such cases, insofar as programs subject to this part
are concerned, shall be made in accordance with procedures established
by the FERC.

Sec. 1040.124 Responsibility of the Federal Energy Regulatory
Commission.

The FERC has authority under section 402(b) of the DOE Organization
Act, Pub. L. 95-91, to promulgate regulations regarding the conduct of
hearings to deny or terminate Federal financial assistance. Rules for
conduct of hearings will be published by the FERC and will be placed in
title 18 CFR.

Judicial Review

Sec. 1040.131 Judicial review.

Final DOE actions taken under this part to withhold or terminate
Federal financial assistance are subject to judicial review under the
following laws:
(a) Title VI--Section 603 of the Civil Rights Act of 1964;
(b) Title IX--Section 903 of the Education Amendments of 1972;
(c) Section 16, Section 401, Section 504--Pub. L. 89-554, 5 U.S.C.
702;
(d) Section 419 and Section 420 of the Energy Conservation and
Production Act of 1976, as amended.

Appendix A to Part 1040--Federal Financial Assistance of the Department
of Energy to Which This Part Applies

1. Access permits. Atomic Energy Act of 1954, as amended, Sections
1, 2, 3 and 161(i), Public Law 83-703; 68 Stat. 919; 42 U.S.C. 2011-13,
2201; and Title I Section 104(c) of the Energy Reorganization Act of
1974, Public Law 93-438; 88 Stat. 1237; 42 U.S.C. 5814; Department of
Energy Organization Act, 42 U.S.C. 7101; Public Law 95-91.
2. Motion pictures film libraries. Atomic Energy Act of 1954, as
amended, Public Law 83-703, Sections 3 and 141(b), (68 Stat. 919), 42
U.S.C. 2013 and 2161; the Energy Reorganization Act of 1974, Public Law
93-438, Title I, Sections 103 and 107, (88 Stat. 1240), 42 U.S.C. 5817;
Department of Energy Organization Act, Public Law 95-91, Title I,
Section 102, and Title III, Section 301, (19 Stat. 565), 42 U.S.C. 7101;
the National Energy Extension Service Act, Title V, Public Law 95-39,
(91 Stat. 191), 42 U.S.C. 7001.
3. Granting of patent licenses. Atomic Energy Act of 1954, as
amended, Sections 156 and 161(g); Public Law 83-703; 68 Stat. 919, 42
U.S.C. 2186 and 2201; Federal Nonnuclear Energy Research and Development
Act of 1974; Section 9(f)(g)(h); Public Law 93-577; 88 Stat. 1887; 42
U.S.C. 5908(f)(g)(h); Department of Energy Organization Act, 42 U.S.C.
7101; Public Law 95-91.
4. University Laboratory Cooperative Program. Atomic Energy Act of
1954, as amended, Section 31 (a) and (b); Public Law 83-703; 68 Stat.
919; 42 U.S.C. 2051; and Title I, Section 107, of the Energy
Reorganization Act of 1974; Public Law 93-438; 88 Stat. 1240; 42 U.S.C.
5817; Department of Energy Organization Act, 42 U.S.C. 7101; Public Law
95-91.
5. Facility training institutes, short courses, and workshops on
energy and environmental subjects. Atomic Energy Act of 1954, as
amended, Section 31 (a) and (b); Public Law 83-703; 68 Stat. 919; 42
U.S.C. 2051; and Title I, Section 107, of the Energy Reorganization Act
of 1974; 42 U.S.C. 7101; Public Law 93-438; 88 Stat. 1240; 42 U.S.C.
5817; Department of Energy Organization Act, 42 U.S.C. 7101; Public Law
95-91.

[[Page 769]]

6. Reactor sharing and fuel assistance. Atomic Energy Act of 1954,
as amended, Section 31 (a) and (b), Public Law 83-703; 68 Stat. 919; 42
U.S.C. 2051; and Title I, Section 107, of the Energy Reorganization Act
of 1974; Public Law 93-438, 88 Stat. 1240; 42 U.S.C. 5817; Department of
Energy Organization Act, 42 U.S.C. 7101; Public Law 95-91.
7. Traineeships for graduate students in energy related fields.
Atomic Energy Act of 1954, as amended, Sections 31 (a) (b); Public Law
83-703; 68 Stat. 919; 42 U.S.C. 2051; and Title I, Section 107, of the
Energy Reorganization Act of 1974; Public Law 93-458; 88 Stat. 1240; 42
U.S.C. 5817; Public Law 93-409, Section 12(a); Public Law 94-163,
Section 337; Public Law 93-577, Section 4(d); Public Law 93-275, Section
5; Public Law 95-39, Title V, Section 502(7); Department of Energy
Organization Act, 42 U.S.C. 7101; Public Law 95-91.
8. Energy related laboratory equipment grants. Atomic Energy Act of
1954, as amended, Section 31 (a) and (b); Public Law 83-703; 68 Stat.
919; 42 U.S.C. 2051; and Title I, Section 107, of the Energy
Reorganization Act of 1974; Public Law 93-438; 88 Stat. 1240; 42 U.S.C.
5817; Department of Energy Organization Act, 42 U.S.C. 7101; Public Law
95-91.
9. Information services exhibits, public speakers publications,
reference and analysis. Atomic Energy Act of 1954, as amended, Section 3
and 141b; Public Law 83-703; 68 Stat. 919; 42 U.S.C. 2013 and 2161; and
Title I, Section 107, of the Energy Reorganization Act of 1974; Public
Law 93-438; 88 Stat. 1240; 42 U.S.C. 5817; Department of Energy
Organization Act, 42 U.S.C. 7101; Public Law 95-91.
10. Payments in lieu of property taxes. Atomic Energy Act of 1954,
as amended, Section 168; Public Law 83-703; 68 Stat. 919; 42 U.S.C.
2208; and Title I, Section 107, of the Energy Reorganization Act of
1974; Public Law 93-438; 88 Stat. 1240; 42 U.S.C. 5817; Department of
Energy Organization Act; 42 U.S.C. 7101; Public Law 95-91.
11. Radiological emergency assistance. Atomic Energy Act of 1954, as
amended, Public Law 83-703; 68 Stat. 919; 42 U.S.C. 2011 et seq.; and
Title I, Section 107, of the Energy Reorganization Act of 1974; Public
Law 93-438; 88 Stat. 1240; 42 U.S.C. 5817; Department of Energy
Organization Act, 42 U.S.C. 7101; Public Law 95-91.
12. Nuclear industry seminars. Atomic Energy Act of 1954, as
amended, Section 141(b); Public Law 83-703; 68 Stat. 919; 42 U.S.C.
2161, and Title I, Section 107, of the Energy Reorganization Act of
1974; Public Law 93-438, 88 Stat. 1240; 42 U.S.C. 5817; Department of
Energy Organization Act, 42 U.S.C. 7101; Public Law 95-91.
13. Work experience. Atomic Energy Act of 1954, as amended, Section
3, Public Law 83-703; 68 Stat. 919; 42 U.S.C. 2013; and Title I, Section
107, of the Energy Reorganization Act of 1974; Public Law 93-438; 88
Stat. 1240; 42 U.S.C. 5817; Department of Energy Organization Act; 42
U.S.C. 7101; Public Law 95-91.
14. Citizens: Workshops. Atomic Energy Act of 1954, as amended,
Public Law 83-703, Section 3 and 141(b), 68 Stat. 919; 42 U.S.C. 2013
and 2161; the Energy Reorganization Act of 1974; Public Law 93-438,
Title I, Section 103 and 107, 88 Stat. 1240; 42 U.S.C. 5817, Department
of Energy Organization Act, Public Law 95-91, Title I, Section 102, and
Title III, Section 301, 91 Stat. 565; 42 U.S.C. 7101; the National
Energy Extension Service Act, Title V, Public Law 95-39, 91 Stat. 191;
42 U.S.C. 7001.
15. Research and development in energy conservation. Atomic Energy
Act of 1954, as amended, Section 31; Public Law 83-703; 68 Stat. 919; 42
U.S.C. 2051; and Title I, Section 107, of the Energy Reorganization Act
of 1974; Public Law 93-438; 88 Stat. 1240; Department of Energy
Organization Act, 42 U.S.C. 7101; Public Law 95-91.
16. Energy related inventions. Section 14 of the Federal Non-Nuclear
Energy Research and Development Act of 1974; Public Law 93-577; 68 Stat.
1894; 42 U.S.C. 5913; Department of Energy Organization Act, 42 U.S.C.
7101; Public Law 95-91.
17. Research and development fission, fossil, solar, geothermal,
electric and storage systems, magnetic fusion. Amendments to the Energy
Reorganization Act of 1974 and the Atomic Energy Act of 1954; Department
of Energy Organization Act, 42 U.S.C. 7101; Public Law 95-91.
18. Energy Information Administration Clearinghouse (EIAC).
Department of Energy Organization Act, Section 205; Public Law 95-91.
19. National Energy Information Center (NEIC). Federal Energy
Administration Act of 1974, as amended, Section 20(a)(4); Public Law 93-
175; 15 U.S.C. 779; Department of Energy Organization Act, Section 301;
Public Law 95-91.
20. Grants for Offices of Consumer Services. Title II, Section 205
of the Energy Conservation and Production Act, Public Law 94-385;
Department of Energy Organization Act, 42 U.S.C. 7101; Public Law 95-91.
21. State Energy Conservation Program. Title III, Sections 361-366,
Part C of the Energy Policy and Conservation Act, Public Law 94-163; 42
U.S.C. 6321-6326; Department of Energy Organization Act, 42 U.S.C. 7101;
Public Law 95-91.
22. Weatherization Assistance Program for low income persons. Title
IV, Part A of the Energy Conservation and Production Act, Public Law 94-
385; 42 U.S.C. 6861-6870; Department of Energy Organization Act, 42
U.S.C. 7101; Public Law 95-91.
23. Supplemental State Energy Conservation Program. Title IV,
Section 432(a), Part B of the Energy Conservation and Production Act of
1976, Public Law 94-385; 42 U.S.C. 6801 et seq.; Department of Energy
Organization Act, 42 U.S.C. 7101; Public Law 95-91.

[[Page 770]]

24. Public education in energy. Atomic Energy Act of 1954, as
amended, Sections 31(a) and 31(b); Public Law 83-703; 68 Stat. 919; 42
U.S.C. 2051; and Title I, Section 107 of the Energy Reorganization Act
of 1974; Public Law 93-458; 88 Stat. 1240; 42 U.S.C. 5817; Public Law
93-409, Section 12(a); Public Law 94-163, Section 337; Public Law 93-
577, Section 4(d); Public Law 93-275, Section 5; Public Law 95-39, Title
V, Section 502(7); Department of Energy Organization Act, 42 U.S.C.
7101; Public Law 95-91.
25. Special studies and projects in energy education and training.
Atomic Energy Act of 1954, as amended, Sections 31(a) and 31(b); Public
Law 83-703; 68 Stat. 919; 42 U.S.C. 2051; and Title I, Section 107 of
the Energy Reorganization Act of 1974; Public Law 93-458; 88 Stat. 1240;
42 U.S.C. 5817; Public Law 93-409, Section 12(a); Public Law 93-163,
Section 337; Public Law 93-577, Section 4(d); Public Law 93-275, Section
5; Public Law 95-39, Title V, Section 502(7).
26. Research and development in biomedical and environmental
sciences. Atomic Energy Act of 1954, as amended, Section 31; Public Law
83-703; 68 Stat. 919; 42 U.S.C. 2051; Title I, Section 107, of the
Energy Reorganization Act of 1974; Public Law 93-438; 88 Stat. 1240; 42
U.S.C. 5817; Department of Energy Organization Act, 42 U.S.C. 7101;
Public Law 95-91.
27. Preface (Pre-Freshman and Cooperative Education for Minorities
In Engineering). Atomic Energy Act of 1954, as amended, Sections 31(a)
and 31(b); Public Law 83-703; 68 Stat. 919; 42 U.S.C. 2051; and Title I,
Section 107 of the Energy Reorganization Act of 1974; Public Law 93-458;
88 Stat. 1240; 42 U.S.C. 5817; Department of Energy Organization Act,
Public Law 95-91, Sections 102 and 203; Public Law 93-409, Section
12(a); Public Law 94-163, Section 337; Public Law 93-577, Section 4(d);
Public Law 93-275, Section 5; Public Law 95-39, Title V, Section 502(7).
28. Materials allocation. Section 104, Energy Policy and
Conservation Act (EPCA), Section 101(c) Defense Production Act of 1950,
as amended (DPA), 50 U.S.C. 2071(c), Section 7, Executive Order 11912,
April 13, 1976. Defense Mobilization Order No. 13, September 22, 1976,
41 FR 43720; Department of Commerce, Bureau of Domestic Commerce,
Delegation 4, 41 FR 52331, MA Regulations 10 CFR 216; Department of
Energy Organization Act, 42 U.S.C. 7101; Public Law 95-91.
29. Basic energy sciences, high energy and nuclear physics, and
advanced technology and assessment projects. Atomic Energy Act of 1954,
as amended, Section 31; Public Law 83-703; 68 Stat. 919; 42 U.S.C. 2051;
and Title I, Section 107, of the Energy Reorganization Act of 1974;
Public Law 93-438; 88 Stat. 1240; 42 U.S.C. 5817; Department of Energy
Organization Act; 42 U.S.C. 7101; Public Law 95-91.
30. Energy Extension Service. National Energy Extension Service Act;
Title V, Public Law 95-39; Department of Energy Organization Act, 42
U.S.C. 7101; Public Law 95-91.


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This page was last updated on November 13, 2000

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