| 10 CFR 1040.1
TITLE 10--ENERGY
CHAPTER X--DEPARTMENT OF ENERGY (GENERAL PROVISIONS)
PART 1040--NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS
Subpart A--General Provisions
Sec. 1040.1 Purpose.
The purpose of this part is to implement Title VI of the Civil
Rights Act of 1964, Pub. L. 88-352; section 16 of the Federal Energy
Administration Act of 1974, as amended, Pub. L. 93-275; section 401 of
the Energy Reorganization Act of 1974, Pub. L. 93-438; Title IX of the
Education Amendments of 1972, as amended, Pub. L. 92-318, Pub. L. 93-568
and Pub. L. 94-482; section 504 of the Rehabilitation Act of 1973, as
amended, Pub. L. 93-112; the Age Discrimination Act of 1975, Pub. L. 94-
135; Title VIII of the Civil Rights Act of 1968, Pub. L. 90-284; and
civil rights provisions of statutes administered pursuant to authority
under the DOE Organization Act, Pub. L. 95-91, so no person shall, on
the ground of race, color, national origin, sex (when covered by section
16 and section 401), handicap, or age, be excluded from participation
in, be denied the benefits of, be subjected to discrimination under, or
be denied employment, where a primary purpose of the program or activity
is to provide employment or when the delivery of program services is
affected by the recipient's employment practices (under section 504, all
grantee and subgrantee employment practices are covered regardless of
the purpose of the program), in connection with any program or activity
receiving Federal financial assistance from the Department of Energy
(after this referred to as DOE or the Department). Employment coverage
may be broader in scope when section 16, section 401, or Title IX are
applicable.
Sec. 1040.2 Application.
(a) The application of this part is to any program or activity for
which Federal financial assistance is authorized under laws administered
by DOE. Programs to which this part applies are listed in Appendix A of
this part. Appendix A is to be revised from time to time by notice
published in the Federal Register. This part applies to money paid,
property transferred, or other Federal financial assistance including
cooperative agreements extended under any program or activity, by way of
grant, loan, or contract by DOE, or grants awarded in the performance of
a contract with DOE by an authorized contractor or subcontractor, the
terms of which require compliance with this part. If any statutes
implemented by this part are otherwise applicable, the failure to list a
program in Appendix A does not mean the program is not covered by this
part.
(b) This part does not apply to:
(1) Contracts of insurance or guaranty;
(2) Employment practices under any program or activity except as
provided in Secs. 1040.12, 1040.14, 1040.41, 1040.47 and 1040.66; or
(3) Procurement contracts under Title 41 CFR part 1 or part 9.
Sec. 1040.3 Definitions--General.
(a) Academic institution includes any school, academy, college,
university, institute, or other association, organization, or agency
conducting or administering any program, project, or facility designed
to educate or train individuals.
(b) Administrative law judge means a person appointed by the
reviewing authority to preside over a hearing held under this part.
(c) Agency or Federal agency refers to any Federal department or
agency which extends Federal financial assistance.
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(d) Applicant for assistance means one who submits an application,
request, or plan required to be approved by a Department official or by
a primary recipient as a condition to becoming eligible for Federal
financial assistance.
(e) Assistant Attorney General refers to the Assistant Attorney
General, Civil Rights Division, United States Department of Justice.
(f) Director, FAPD refers to the Director, Federally Assisted
Programs Division, Office of Equal Opportunity, DOE.
(g) Compliance Review means an analysis of a recipient's selected
employment practices or delivery of services for adherence to provisions
of any of the subparts of this part.
(h) Department means the Department of Energy (DOE).
(i) FERC means the Federal Energy Regulatory Commission, DOE.
(j) Where designation of persons by race, color, or national origin
is required, the following designations are to be used:
(1) Black, not of Hispanic origin. A person having origins in any of
the black racial groups of Africa.
(2) Hispanic. A person of Mexican, Puerto Rican, Cuban, Central or
South American or other Spanish Culture or origin, regardless of race.
(3) Asian or Pacific Islander. A person having origins in any of the
original peoples of the Far East, Southeast Asia, the Indian
Subcontinent, or the Pacific Islands. This includes, for example, China,
India, Japan, Korea, the Philippine Islands, Hawaiian Islands, and
Samoa.
(4) American Indian or Alaskan Native. A person having origins in
any of the original peoples of North America and who maintains cultural
identification through tribal affiliation or community recognition.
(5) White, not of Hispanic origin. A person having origins in any of
the original peoples of Europe, North Africa, or the Middle East.
Additional subcategories based on national origin or primary language
spoken may be used where appropriate on either a national or a regional
basis. Paragraphs (j) (1) through (5), inclusive, set forth in this
section are in conformity with Directive No. 15 of the Office of Federal
Statistical Policy and Standards. To the extent that these designations
are modified, paragraphs (j) (1) through (5), inclusive, set forth in
this section are to be interpreted to conform with those modifications.
(k) Director means the Director, Office of Equal Opportunity, DOE.
(l) Disposition means any treatment, handling, decision, sentencing,
confinement, or other proscription of conduct.
(m) Employment practices, see individual section headings.
(n) Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, or other real or personal
property or interest in such property, and the provision of facilities
includes the construction, expansion, renovation, remodeling,
alteration, or acquisition of facilities.
(o) Federal financial assistance includes:
(1) Grants and loans of Federal funds,
(2) The grant or donation of Federal property and interest in
property,
(3) The detail of or provision of services by 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, the furnishing of services 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 the sale, lease, or furnishing of services to
the recipient, and
(5) Any Federal agreement, arrangement, or other contract which has
as one of its purposes the provision of assistance.
(p) General Counsel mean the Office of the General Counsel
Department of Energy.
(q) Government organization means the political subdivision for a
prescribed geographical area.
(r) Investigations include fact-finding efforts and attempts to
secure voluntary resolution of complaints.
(s) Noncompliance means the failure of a recipient or subrecipient
to comply with any subpart of this part.
(t) Primary recipient means any person, group, organization, state,
or local unit of government which is authorized or required to extend
Federal financial
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assistance to another recipient for the purpose of carrying out a
program.
(u) Program includes any program, project, or activity for the
provision of services, financial aid, or other benefits to individuals
(including education or training, health, welfare, rehabilitation,
housing, or other services, whether provided through an employee of the
grantee or provided by others through contracts or other arrangements
with the grantee, and including work opportunities and cash or loan or
other assistance to individuals), or for the provision of facilities for
furnishing services, financial aid, or other benefits to individuals.
The services, financial aid, or other benefits provided under a program
receiving Federal financial assistance shall be deemed to include any
services, financial aid, or other benefits provided with the aid of
Federal financial assistance or with the aid of any non-Federal funds,
property, or other resources required to be expended or made available
for the program to meet matching requirements or other conditions which
must be met in order to receive the Federal financial assistance, and to
include any services, financial aid, or other benefits provided in or
through a facility provided with the aid of Federal resources or such
non-Federal resources.
(v) Responsible Departmental or DOE Official means the official of
the Department of Energy that has been assigned the principal
responsibility for administration of the law extending Federal financial
assistance.
(w) Reviewing authority means the component of the Department
delegated authority by the Secretary to appoint, and to review the
decisions of, administrative law judges in cases arising under this
part.
(x) Secretary means the Secretary of the Department of Energy.
(y) The term United States includes the states of the United States,
the District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Island, American Samoa, Guam, Wake Island, the Canal Zone, and all other
territories and possessions of the United States, and the term State
includes any one of the foregoing.
(z) Headquarters means DOE offices located in Washington, D.C.
Sec. 1040.4 Assurances required and preaward review.
(a) Assurances. An applicant for Federal financial assistance for a
program or activity to which this part applies shall submit an assurance
on a form specified by the Director that the program or activity will be
operated in compliance with applicable subparts. Such assurances are to
include provisions which give the United States a right to seek judicial
enforcement.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended in the form of real property or to provide real
property or structure on the property, the assurance obligates the
recipient or, in the case of a subsequent transfer, the transferee, for
the period during which the real property or structures are used for the
purpose for which Federal financial assistance is extended or for
another purpose involving the provision of similar services or benefits.
(2) In the case of Federal financial assistance extended to provide
personal property, the assurance obligates the recipient for the period
during which it retains ownership or possession of the property.
(3) In all other cases, the assurance obligates the recipient to all
terms and conditions contained in the certificate of assurance for the
period during which Federal financial assistance is extended.
(c) Covenants. Where Federal financial assistance is provided in the
form of real property, structures, improvements on or interests in the
property, or in the case where Federal financial assistance is provided
in the form of a transfer of real property or interest in the property
from the Department:
(1) The instrument effecting or recording this transfer is to
contain a covenant running with the land to assure 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; or
(2) Where no transfer of property is involved or imposed with
Federal financial assistance, the recipient shall agree to include the
covenant described in paragraph (c)(1) of this section in
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the instrument effecting or recording any subsequent transfer of the
property.
(3) Where Federal financial assistance is provided in the form of
real property or interest in the property from the Department, the
covenant is to 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 material breach of the covenant. If a transferee of real property
manages to mortgage or otherwise encumber the real property as security
for financing construction of new or improvement of existing facilities
on the property for the purpose for which the property was transferred,
the Director may, upon request of the transferee and, if necessary to
accomplish such financing and upon such conditions, as he or she deems
appropriate, agree to forbear the exercise of the right to revert title
for so long as the lien of the mortgage or other encumbrance remains
effective.
(d) Assurances from government agencies. In the case of any
application from any department, agency or office of any State or local
government for Federal financial assistance for any specified purpose,
the assurance required by this section is to extend to any other
department, agency, or office of the same governmental unit if the
policies of such other department, agency, or office will substantially
affect the project for which Federal financial assistance is requested.
That requirement may be waived by the responsible Department official if
the applicant establishes, to the satisfaction of the responsible
Department official, that the practices in other agencies or parts of
programs of the governmental unit will in no way affect:
(1) Its practices in the program for which Federal financial
assistance is sought;
(2) The beneficiaries of or participants in or persons affected by
such program; or
(3) Full compliance with the subpart as respects such program.
(e) Assurance from academic and other institutions. (1) In the case
of any application for Federal financial assistance for any purpose to
an academic institution, the assurance required by this section is to
extend to admission practices and to all other practices relating to the
treatment of students.
(2) The assurance required with respect to an academic institution,
detention or correctional facility, or any other institution or
facility, insofar as the assurance relates to the institution's
practices with respect to admission or other treatment of individuals as
students, patients, wards, inmates, persons subject to control, or
clients of the institution or facility or to the opportunity to
participate in the provision of services, disposition, treatment, or
benefits to such individuals, shall be applicable to the entire
institution or facility.
(f) Continuing State programs. Any State or State agency
administering a program which receives continuing Federal financial
assistance subject to this part shall, as a condition for the extension
of such assistance:
(1) Provide a statement that the program is (or, in the case of a
new program, will be) conducted in compliance with applicable subparts;
and
(2) Provide for such methods of administration as are found by the
Director or a designee to give reasonable assurance that the primary
recipient and all other recipients of Federal financial assistance under
such program will comply with this part.
(g) Assistance for construction. Where the assistance is sought for
the construction of a facility, or a part of a facility, the assurance
is to extend to the entire facility. If a facility to be constructed is
part of a larger system, the assurance is to extend to the larger
system.
(h) Pre-award review. Prior to and as a condition of approval, all
applications for Federal financial assistance are to be reviewed by the
appropriate Civil Rights Department official who is to make a written
determination of the applicant's compliance with this part. The basis
for such a determination is to be the submission of the assurance of
compliance as specified in paragraph (a) and a review of data to be
submitted by the applicant as specified by the Director. For purposes of
this subsection, the appropriate departmental
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official at headquarters level is the Director, FAPD, Office of Equal
Opportunity, and at the regional level it is to be the Civil Rights
Officer delegated by the Director as having review authority for
determining compliance with requirements of this part. Where a
determination of compliance cannot be made from this data, DOE may
require the applicant to submit necessary additional information and may
take other steps necessary to make the determination of compliance. Such
other steps may include, for example, communicating with local
government officials or protected class organizations and field reviews.
Any agreement to achieve voluntary compliance as a result of a preaward
review shall be in writing. In the case of Title VI, the Director will
notify the Assistant Attorney General of instances of probable
noncompliance determined as the result of application reviews. The
opportunity for a hearing as provided under Sec. 1040.113 is applicable
to this section.
Sec. 1040.5 Designation of responsible employee.
(a) Designation of responsible employee. Each recipient shall
designate at least one employee to coordinate its efforts to carry outs
its responsibilities under this part. The recipient shall publish the
name, office address and telephone number of the employee or employees
appointed under this paragraph.
(b) A recipient shall display prominently, in reasonable numbers and
places, posters which state that the recipient operates a program or
programs subject to the nondiscrimination provisions of applicable
subparts, summarize those requirements, note availability of information
regarding this part from the recipient and DOE, and explain briefly the
procedures for filing a complaint. Information on requirements of this
part, complaint procedures and the rights of beneficiaries are to be
included in handbooks, manuals, pamphlets, and other materials which are
ordinarily distributed to the public to describe the federally assisted
programs and the requirements for participation by recipients and
beneficiaries. To the extent that recipients are required by law or
regulation to publish or broadcast program information in the news
media, the recipient shall insure that such publications and broadcasts
state that the program in question is an equal opportunity program or
otherwise indicate that discrimination in the program is prohibited by
Federal law.
(c) Where a significant number or proportion of the population
eligible to be served or likely to be directly affected by a federally
assisted program requires service or information in a language other
than English in order to be informed of or to participate in the
program, the recipient shall take reasonable steps, considering the
scope of the program and size and concentration of such population, to
provide information in appropriate languages (including braille) to such
persons. This requirement applies to written material of the type which
is ordinarily distributed to the public. The Department may require a
recipient to take additional steps to carry out the intent of this
subsection.
Sec. 1040.6 Notice.
(a) A recipient shall take appropriate, initial and continuing steps
to notify participants, beneficiaries, applicants and employees,
including those with impaired vision or hearing, and unions or
professional organizations holding collective bargaining or professional
agreements with the recipient that it does not discriminate on the basis
of race, color, national origin, sex (where sec. 16 or sec. 401 apply),
handicap, or age. The notification is to state, where appropriate, that
the recipient does not discriminate in admission or access to, and
treatment of, or employment in its programs and activities and inform
employees of their rights under this part. The notification is to
include an identification of the responsible employee designated under
Sec. 1040.5. A recipient shall make the initial notification required by
this paragraph within 90 days of the effective date of this part.
Methods of initial and continuing notification may include the posting
of notices, publication in newspapers and magazines, placement of
notices in recipients' publications, and distribution of memoranda or
other written communications.
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(b) If a recipient publishes or uses recruitment materials or
publications containing general information that it makes available to
participants, beneficiaries, applicants, or employees, it shall include
in those materials or publications a statement of the policy described
in paragraph (a) of this section. A recipient may meet the requirement
of this paragraph either by including appropriate inserts in existing
materials and publications or by revising and reprinting the materials
and publications.
(c) The provisions of Sec. 1040.5(c) to provide information in
appropriate languages (including braille), apply to this section.
Sec. 1040.7 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the Director finds that a recipient has
discriminated against persons on the basis of race, color, national
origin, sex, handicap, or age in any program or activity receiving
Federal financial assistance, the recipient shall take remedial action
as the Director considers necessary to overcome the effects of the
discrimination.
(b) Affirmative action. In the absence of a finding of
discrimination on the basis of race, color, national origin, sex,
handicap, or age in any program or activity, a recipient may continue a
program that will encourage participation by all persons regardless of
race, color, national origin, sex, handicap, or age.
(c) Self-evaluation. Each recipient shall, within one year of the
effective date of this part:
(1) Whenever possible, evaluate, with the assistance of interested
persons, including handicapped persons or organizations representing
handicapped persons, its current policies and practices and the effects
thereof that do not or may not meet the requirements of this part;
(2) Modify any policies and practices which do not or may not meet
the requirements of this part; and
(3) Take appropriate remedial steps to eliminate the effects of
discrimination which resulted or may have resulted from adherence to
these questionable policies and practices.
(d) Availability of self-evaluation and related materials. Recipient
shall maintain on file, for at least three years following its
completion, the evaluation required under paragraph (c) of this section,
and shall provide to the Director, upon request, a description of any
modifications made under paragraph (c)(2) of this section and of any
remedial steps taken under paragraph (c)(3) of this section.
Sec. 1040.8 Effect of employment opportunity.
Due to limited opportunities in the past, certain protected groups
may be underrepresented in some occupations or professions. A
recipient's obligation to comply with this part is not alleviated by use
of statistical information which reflects limited opportunities in those
occupations or professions.
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