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Federal Coordination and Compliance Section

[Code of Federal Regulations]
[Title 44, Volume 1]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 44CFR7]

[Page 64-79]
 
              TITLE 44--EMERGENCY MANAGEMENT AND ASSISTANCE
 
             CHAPTER I--FEDERAL EMERGENCY MANAGEMENT AGENCY
 
PART 7--NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS (FEMA REG. 5)

         Subpart A--Nondiscrimination in FEMA Programs--General

Sec.
7.1  Purpose.
7.2  Definitions.
7.3  Application of this regulation.
7.4  Further application of this regulation.
7.5  Specific discriminatory actions prohibited.
7.6  Life, health, and safety.
7.7  Assurances required.
7.8  Elementary and secondary schools.
7.9  Assurances from institutions.
7.10  Compliance information.
7.11  Conduct of investigations.
7.12  Procedure for effecting compliance.
7.13  Hearings.
7.14  Decisions and notices.
7.15  Judicial review.
7.16  Effect on other regulations; forms and instructions.

Subparts B-D [Reserved]

    Subpart E--Nondiscrimination on the Basis of Age in FEMA Program 
            Activities Receiving Federal Financial Assistance

                                 General

7.910  What is the purpose of the Age Discrimination Act of 1975?
7.911  What is the purpose of FEMA's age discrimination regulation?
7.912  To what programs does this regulation apply?
7.913  Definition of terms used in this regulation.

              Standards for Determining Age Discrimination

7.920  Rules against age discrimination.
7.921  Exceptions to the rules against age discrimination: Normal 
          operation or statutory objective of any program or activity.
7.922  Exceptions to the rules against age discrimination: Reasonable 
          factors other than age.
7.923  Burden of proof for exceptions.
7.924  Affirmative action by recipient.
7.925  Special benefits for children and the elderly.
7.926  Age distinctions contained in FEMA regulations.

[[Page 65]]

                        Duties of FEMA Recipients

7.930  General responsibilities.
7.931  Notice to subrecipients and beneficiaries.
7.932  Assurance of compliance and recipient assessment of age 
          distinctions.
7.933  Information requirement.

         Investigation, Conciliation, and Enforcement Procedures

7.940  Compliance reviews.
7.941  Complaints.
7.942  Mediation.
7.943  Investigation.
7.944  Prohibition against intimidation or retaliation.
7.945  Compliance procedure.
7.946  Hearings, decisions, post-termination proceedings.
7.947  Remedial action by recipient.
7.948  Alternate funds disbursal procedure.
7.949  Exhaustion of administrative remedies.

    Source: 30 FR 321, Jan. 9, 1965, unless otherwise noted. 
Redesignated at 45 FR 44575, July 1, 1980.

         Subpart A--Nondiscrimination in FEMA Programs--General

    Authority: FEMA Reg. 5 issued under sec. 602, 78 Stat. 252; 42 
U.S.C. 2000 d-1; 42 U.S.C. 1855-1885g; 50 U.S.C. 404.

    Source: 30 FR 321, Jan. 9, 1965, unless otherwise noted. 
Redesignated at 45 FR 44575, July 1, 1980, and further redesignated at 
55 FR 23078, June 6, 1990.

Sec. 7.1  Purpose.

    The purpose of this regulation is to effectuate the provisions of 
title VI of the Civil Rights Act of 1964 (hereafter referred to as the 
``Act'') to the end that no person in the United States shall, on the 
ground 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 Federal Emergency Management Agency.

Sec. 7.2  Definitions.

    As used in this regulation:
    (a) The term responsible agency official with respect to any program 
receiving Federal financial assistance means the Director of the Federal 
Emergency Management Agency or other official of the agency who by law 
or by delegation has the principal responsibility within the agency for 
the administration of the law extending such assistance.
    (b) The term United States means the States of the United States, 
the District of Columbia, Puerto Rico, the Virgin Islands, American 
Samoa, Guam, Wake Island, the Canal Zone, and the territories and 
possessions of the United States, and the term State means any one of 
the foregoing.
    (c) The term 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) The term 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 
employees of the recipient of Federal financial assistance or provided 
by others through contracts or other arrangements with the recipient, 
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

[[Page 66]]

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 financial assistance or such 
non-Federal resources.
    (e) The term facility includes all or any portion of structure, 
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.
    (f) The term recipient means any State, political subdivision of any 
State, or instrumentality of any State or political subdivision, any 
public or private agency, institution, or organization, or other entity, 
or any individual, in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, for any program, 
including any successor, assign, or transferee thereof, but such term 
does not include any ultimate beneficiary under any such program.
    (g) The term primary recipient means any recipient which is 
authorized or required to extend Federal financial assistance to another 
recipient for the purpose of carrying out a program.
    (h) The term applicant means one who submits an application, 
request, or plan required to be approved by a responsible agency 
official, or by a primary recipient, as a condition to eligibility for 
Federal financial assistance, and the term application means such an 
application, request, or plan.

Sec. 7.3  Application of this regulation.

    No person in the United States shall, on the ground of race, color, 
or national origin, be excluded from participation in, be denied the 
benefits of, or be otherwise subjected to discrimination by those 
receiving assistance under the ``Federal Disaster Assistance'' program 
(Pub. L. 81-875; 42 U.S.C. 1855-1855g), or under the ``Interim Emergency 
Management of Resources'' program (section 103 of the National Security 
Act of 1947; Pub. L. 80-253, as amended; 50 U.S.C. 404).

Sec. 7.4  Further application of this regulation.

    This regulation applies to any program for which Federal financial 
assistance is authorized under a law administered by the Federal 
Emergency Management Agency. It applies to money paid, property 
transferred, or other Federal financial assistance extended under any 
such program after the effective date of the regulation pursuant to an 
application approved prior to such effective date. This regulation does 
not apply to (a) any Federal financial assistance by way of insurance or 
guaranty contracts, (b) money paid, property transferred, or other 
assistance extended under any such program before the effective date of 
this regulation, (c) any assistance to any individual who is the 
ultimate beneficiary under any such program, or (d) any employment 
practice, under such program, of any employer, employment agency, or 
labor organization.

(Reorganization Plan No. 3 of 1978, E.O. 12127 and E.O. 12148)

[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, as 
amended at 48 FR 44543, Sept. 29, 1983]

Sec. 7.5  Specific discriminatory actions prohibited.

    (a) A recipient under any program to which this regulation applies 
may not, directly or through contractual or other arrangements, on 
ground of race, color, or national origin:
    (1) Deny any individual any service, financial aid, or other benefit 
provided under the program;
    (2) Provide any service, financial aid, or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (3) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any service, financial aid, or 
other benefit under the program;
    (4) Restrict an individual 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;

[[Page 67]]

    (5) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, quota, eligibility, 
membership or other requirement or condition which individuals must meet 
in order to be provided any service, financial aid, or other benefit 
provided under the program;
    (6) Deny an individual 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.
    (b) 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 individuals 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 individuals 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 
individuals 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 as respect individuals 
of a particular race, color, or national origin.
    (c) As used in this section the services, financial aid, or other 
benefits provided under a program receiving Federal financial assistance 
shall be deemed to include any service, financial aid, or other benefit 
provided in or through a facility provided with the aid of Federal 
financial assistance.
    (d) The enumeration of specific forms of prohibited discrimination 
in this section does not limit the generality of the prohibition in 
section 4.

Sec. 7.6  Life, health, and safety.

    Notwithstanding the provisions of section 5, a recipient of Federal 
financial assistance shall not be deemed to have failed to comply with 
section 3, if immediate provision of a service or other benefit to an 
individual is necessary to prevent his death or serious impairment of 
his health or safety.

Sec. 7.7  Assurances required.

    Every application for Federal financial assistance to carry out a 
program to which this regulation 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 
regulation. In the case of an application for Federal financial 
assistance to provide real property 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 real property or 
structures are used for a purpose for which the Federal financial 
assistance is extended or for another purpose involving the provision of 
similar services or benefits. In the case of personal property the 
assurance shall obligate the recipient for the period during which he 
retains ownership or possession of the property. In all other cases the 
assurance shall obligate the recipient for the period during which 
Federal financial assistance is extended pursuant to the application. 
The responsible agency official shall specify the form of the foregoing 
assurances for each program, and the extent to which like assurances 
will be required of subgrantee, contractors and subcontractors, 
transferees, successors in interest, and other participants in the 
program. Any such assurance shall include provisions which give the 
United States a right to seek its judicial enforcement.

Sec. 7.8  Elementary and secondary schools.

    The requirements of section 7 with respect to any elementary or 
secondary school or school system shall be deemed to be satisfied if 
such school or school system (a) is subject to a final order of a court 
of the United States for the desegregation of such school or school 
system, and provides an assurance that it will comply with such order, 
including any future modification of such order, or (b) submits a plan 
for the desegregation of such school or

[[Page 68]]

school system which the United States Commissioner of Education 
determines is adequate to accomplish the purpose of the Act and this 
regulation, and provides reasonable assurance that it will carry out 
such plans; in any case of continuing Federal financial assistance the 
responsible agency official may reserve the right to redetermine, after 
such period as may be specified by him, the adequacy of the plan to 
accomplish the purposes of the Act and this regulation. In any case to 
which a final order of a court of the United States for the 
desegregation of such school or school system is entered after 
submission of such a plan, such plan shall be revised to conform to such 
final order, including any future modification of such order.

Sec. 7.9  Assurances from institutions.

    (a) In the case of any application for Federal financial assistance 
to an institution of higher education, the assurance required by section 
7 shall extend to admission practices and to all other practices 
relating to the treatment of students.
    (b) The assurances 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 
institutions or to the opportunity to participate in the provision of 
services or other benefits to such individuals, shall be applicable to 
the entire institution unless the applicant establishes, to the 
satisfaction of the Director of the Federal Emergency Management Agency 
that the institution's practices in designated parts or programs of the 
institution will in no way affect its practices in the program of the 
institution for which Federal financial assistance is sought, or the 
beneficiaries of or participants in such program. If in any such case 
the assistance sought is for the construction of a facility or part of a 
facility, the assurance shall in any event extend to the entire facility 
and to facilities operated in connection therewith.

Sec. 7.10  Compliance information.

    (a) Cooperation and assistance. The responsible official in the 
Federal Emergency Management Agency shall to the fullest extent 
practicable seek the cooperation of recipients in obtaining compliance 
with this regulation and shall provide assistance and guidance to 
recipients to help them comply voluntarily with this regulation.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the responsible agency official or his designee timely, 
complete, and accurate compliance reports at such times, and in such 
form and containing such information, as the responsible agency official 
or his designee may determine to be necessary to enable him to ascertain 
whether the recipient has complied or is complying with this regulation. 
In the case of any program under 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 regulation.
    (c) Access to sources of information. Each recipient shall permit 
access by the responsible agency official or his designee 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 regulation. 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 
shall fail or refuse 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 
regulation and its applicability to the program under which the 
recipient receives Federal financial assistance, and make such 
information available to them in such manner, as the responsible agency 
official finds necessary to apprise such persons of the protection

[[Page 69]]

against discrimination assured them by the Act and this regulation.

Sec. 7.11  Conduct of investigations.

    (a) Periodic compliance reviews. The responsible agency official or 
his designee shall from time to time review the practices of recipients 
to determine whether they are complying with this regulation.
    (b) Complaints. Any person who believes himself or any specific 
class of individuals to be subjected to discrimination prohibited by 
this regulation may by himself or by a representative file a written 
complaint with the National Headquarters or any Regional Office of the 
Federal Emergency Management Agency. A complaint must be filed not later 
than 180 days from the date of the alleged discrimination, unless the 
time for filing is extended by the responsible agency official or his 
designee.
    (c) Investigations. The responsible agency official or his designee 
will make a prompt investigation whenever a compliance review, report, 
complaint, or any other information indicates a possible failure to 
comply with this regulation. The investigation should include, where 
appropriate, a review of the pertinent practices and policies of the 
recipient, the circumstances under which the possible noncompliance with 
this regulation occurred, and other factors relevant to a determination 
as to whether the recipient has failed to comply with this regulation.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
regulation, the responsible agency official or his designee 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 
section 12.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section the responsible agency official or his 
designee 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 regulation, or 
because he has made a complaint, testified, assisted, or participated in 
any manner in an investigation, proceeding, or hearing under this 
regulation. The identity of complainants shall be kept confidential 
except to the extent necessary to carry out the purposes of this 
regulation, including the conduct of any investigation, hearing, or 
judicial proceeding arising thereunder.

[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and 
further redesignated at 55 FR 23078, June 6, 1990, as amended at 64 FR 
38309, July 16, 1999]

Sec. 7.12  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this regulation, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this regulation 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 reference 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 section 7. If an applicant fails or refuses 
to furnish an assurance required under section 7 or otherwise fails or 
refuses to comply with a requirement imposed by or pursuant to that 
section Federal financial assistance may be refused in accordance with 
the procedures of paragraph (c) of this section. The agency shall not be 
required to provide assistance in such a case during the pendency of the 
administrative proceedings under such paragraph except that the agency 
shall continue assistance during the pendency of such proceedings where 
such

[[Page 70]]

assistance is due and payable pursuant to an application thereof 
approved prior to the effective date of this regulation.
    (c) 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 shall become effective 
until (1) the responsible agency official has advised the applicant or 
recipient of his failure to comply and has determined that compliance 
cannot be secured by voluntary means, (2) 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 regulation, (3) the action has been approved by the 
Director of the Federal Emergency Management Agency pursuant to section 
14, and (4) the expiration of 30 days after the Director 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. 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 by 
any other means authorized by law shall be taken until (1) the 
responsible agency official has determined that compliance cannot be 
secured by voluntary means, (2) the action has been approved by the 
Director of the Federal Emergency Management Agency, (3) the recipient 
or other person has been notified of its failure to comply and of the 
action to be taken to effect compliance, and (4) 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. 7.13  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by section 12(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 responsible 
agency official 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 subsection 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 
section 12(c) of this regulation 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 
National Headquarters of the Federal Emergency Management Agency in 
Washington, DC, at a time fixed by the responsible agency official 
unless he determines that the convenience of the applicant or recipient 
or of the agency requires that another place be selected. Hearings shall 
be held before the responsible agency official or, at his discretion, 
before a hearing examiner designated in accordance with section 11 of 
the Administrative Procedure Act.

[[Page 71]]

    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the agency 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 5-8 of the Administrative Procedure Act, 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 agency 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 shall not apply to hearings 
conducted pursuant to this regulation, 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 
regulation with respect to two or more programs to which this regulation 
applies, or noncompliance with this regulation and the regulations of 
one or more other Federal departments or agencies issued under title VI 
of the Act, the Director of the Federal Emergency Management Agency 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 of procedures not inconsistent 
with this regulation. Final decisions in such cases, insofar as this 
regulation is concerned, shall be made in accordance with section 14.

Sec. 7.14  Decisions and notices.

    (a) Decision by person other than the responsible agency official. 
If the hearing is held by a hearing examiner such 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 
responsible agency official 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 may within 30 days of the mailing of such 
notice of initial decision file with the responsible agency official his 
exceptions to the initial decision, with his reasons therefor. In the 
absence of exceptions, the responsible agency official 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 such notice of review the responsible agency 
official 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 constitute 
the final decision of the responsible agency official.
    (b) Decisions on record or review by the responsible agency 
official. Whenever a record is certified to the responsible agency 
official for decision or he reviews the decision of a hearing examiner 
pursuant to paragraph (a) of this section, or whenever he 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 copy of his final decision shall be given in writing 
to the applicant or recipient and to the complainant, if any.

[[Page 72]]

    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to section 13(a) a decision shall be made by 
the responsible agency official on the record and a copy of such 
decision shall be given in writing to the applicant or recipient, and to 
the complainant, if any.
    (d) Rulings required. Each decision of a hearing officer or 
responsible agency official 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 regulation with which it 
is found that the applicant or recipient has failed to comply.
    (e) Approval by Director. Any final decision of a responsible agency 
official (other than the Director of the agency) 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 regulation or the Act, shall promptly be 
transmitted to the Director of the Federal Emergency Management Agency 
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, under the program involved, and may 
contain such terms, conditions, and other provisions as are consistent 
with and will effectuate the purposes of the Act and this regulation, 
including provisions designed to assure that no Federal financial 
assistance will thereafter be extended under such program 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 regulation, 
or to have otherwise failed to comply with this regulation, unless and 
until it corrects its noncompliance and satisfies the Director of the 
Federal Emergency Management Agency that it will fully comply with this 
regulation.

Sec. 7.15  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. 7.16  Effect on other regulations; forms and instructions.

    (a) Effect on other regulations. All regulations, orders, or like 
directions heretofore issued by any officer of the Federal Emergency 
Management Agency which impose requirements designed to prohibit any 
discrimination against individuals on the ground of race, color, or 
national origin under any program to which this regulation applies, and 
which authorize the suspension or termination of or refusal to grant or 
to continue Federal financial assistance to any applicant for or 
recipient of such assistance under such program for failure to comply 
with such requirements, are hereby superseded to the extent that such 
discrimination is prohibited by this regulation, except that nothing in 
this regulation shall be deemed to relieve any person of any obligation 
assumed or imposed under any such superseded regulation, order, 
instruction, or like direction prior to the effective date of this 
regulation. Nothing in this regulation, however, shall be deemed to 
supersede Executive Orders 10925 and 11114 (including future amendments 
thereof) and regulations issued thereunder, or any other regulations or 
instructions, insofar as such regulations or instructions prohibit 
discrimination on the ground of race, color, or national origin in any 
program or situation to which this regulation is inapplicable, or 
prohibit discrimination on any other ground.
    (b) Forms and instructions. Each responsible agency official shall 
issue and promptly make available to interested persons forms and 
detailed instructions and procedures for effectuating this regulation as 
applied to programs to which this regulation applies and for which he is 
responsible.
    (c) Supervision and coordination. The Director of the Federal 
Emergency Management Agency may from time to time assign 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 regulation 
(other than responsibility for final decision as provided in section

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14), including the achievement of effective coordination and maximum 
uniformity within the agency and within the Executive Branch of the 
Government in the application of title VI and this regulation to similar 
programs and in similar situations.

Subparts B-D [Reserved]

    Subpart E--Nondiscrimination on the Basis of Age in FEMA Program 
            Activities Receiving Federal Financial Assistance

    Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C. 
26101 et seq. (45 CFR part 90).

    Source: 55 FR 23078, June 6, 1990, unless otherwise noted.

                                 General

Sec. 7.910  What is the purpose of the Age Discrimination Act of 1975?

    The Age Discrimination Act of 1975 (the ``Act''), as amended, is 
designed to prohibit discrimination on the basis of age in programs or 
activities receiving Federal financial assistance. The Act also permits 
federally-assisted programs and activities, and recipients of Federal 
funds, to continue to use certain age distinctions and factors other 
than age which meet the requirements of the Act and this regulation.

Sec. 7.911  What is the purpose of FEMA's age discrimination regulation?

    The purpose of this regulation is to set out FEMA's policies and 
procedures under the Age Discrimination Act of 1975 and the general 
governmentwide regulations, 45 CFR part 90. The Act and the general 
regulations prohibit discrimination on the basis of age in programs or 
activities receiving Federal financial assistance. The Act and the 
general regulations permit federally-assisted programs, activities, and 
recipients of Federal funds, to continue to use age distinctions and 
factors other than age which meet the requirements of the Act and its 
implementing regulations.

Sec. 7.912  To what programs does this regulation apply?

    (a) The Act and this regulation apply to each FEMA recipient and to 
each program or activity operated by the recipient which receives or 
benefits from Federal financial assistance provided by FEMA.
    (b) The Act and this regulation do not apply to:
    (1) An age distinction contained in that part of a Federal, State or 
local statute or ordinance adopted by an elected, general purpose 
legislative body which:
    (i) Provides any benefits or assistance to persons based on age; or
    (ii) Establishes criteria for participation in age-related terms; or
    (iii) Describes intended beneficiaries or target groups in age-
related terms.
    (2) Any employment practice of any employer, employment agency, 
labor organization, or any labor-management joint apprenticeship 
training program, except for any program or activity receiving Federal 
financial assistance for public service employment under the Job 
Training Partnership Act (29 U.S.C. 150, et seq.)

Sec. 7.913  Definition of terms used in this regulation.

    As used in this regulation, the term Act means the Age 
Discrimination Act of 1975 as amended (title III of Pub. L. 94-135).
    Action means any act, activity, policy, rule, standard, or method of 
administration; or the use of any policy, rule, standard or method of 
administration.
    Age means how old a person is, or the number of years from the date 
of a person's birth.
    Age distinction means any action using age or an age-related term.
    Age-related term means a word or words which necessarily imply a 
particular age or range of ages (for example, children, older persons, 
but not student).
    Agency means the Federal Emergency Management Agency.
    Director means the Director of the Federal Emergency Management 
Agency.
    Federal financial assistance means any grant, entitlement, loan, 
cooperative

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agreement, contract (other than a procurement contract or a contract of 
insurance or guaranty), or any other arrangement by which the agency 
provides or otherwise makes available assistance in the form of:
    (a) Funds; or
    (b) Services or Federal personnel; or
    (c) Real and personal property or any interest in or use of 
property, including:
    (1) Transfers or leases of property for less than fair market value 
or for reduced consideration; and
    (2) Proceeds from a subsequent transfer or lease of property if the 
Federal share of its fair market value is not returned to the Federal 
Government.
    Normal operation means the operation of a program or activity 
without significant changes that would impair its ability to meet its 
objective.
    Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, institution, 
organization, or other entity, or any person to which Federal financial 
assistance is extended, directly or through another recipient. Recipient 
includes any successor, assignee, or transferee, but excludes the 
ultimate beneficiary of the assistance.
    Statutory objective means any purpose of a program or activity 
expressly stated in any Federal statute, State statute or local statute 
or ordinance adopted by an elected, general purpose legislative body.
    Subrecipient means any of the entities in the definition of 
``recipient'' to which a recipient extends or passes on Federal 
financial assistance. A subrecipient is generally regarded as a 
recipient of Federal financial assistance and has all the duties of a 
recipient in these regulations.
    United States includes the States of the United States, the District 
of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, 
American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, 
Wake Island, the Canal Zone, the Trust Territory of the Pacific Islands 
and all other territories and possessions of the United States. The term 
``State'' also includes any one of the foregoing.

              Standards for Determining Age Discrimination

Sec. 7.920  Rules against discrimination.

    The rules stated in this section are limited by the exceptions 
contained in Secs. 7.921 and 7.922 of these regulations.
    (a) General rule: No person in the United States shall, on the basis 
of age, be excluded from participation in, be denied the benefits of, or 
be subjected to discrimination under, any program or activity receiving 
Federal financial assistance.
    (b) Specific rules: A recipient may not, in any program or activity 
receiving Federal financial assistance, directly or through contractual 
licensing, or other arrangements, use age distinctions or take any other 
actions which have the effect, on the basis of age, of:
    (1) Excluding individuals from, denying them the benefits of, 
subjecting them to discrimination under, a program or activity receiving 
Federal financial assistance; or
    (2) Denying or limiting individuals in their opportunity to 
participate in any program or activity receiving Federal financial 
assistance. The specific forms of age discrimination listed in paragraph 
(b) of this section do not necessarily constitute a complete list.

Sec. 7.921  Exceptions to the rules against age discrimination: Normal 
          operation or statutory objective of any program or activity.

    A recipient is permitted to take an action, otherwise prohibited by 
Sec. 7.920, if the action reasonably takes into account age as a factor 
necessary to the normal operation of the achievement of any statutory 
objective of a program or activity. An action reasonably takes into 
account age as a factor necessary to the normal operation or the 
achievement of any statutory objective of a program or activity, if:
    (a) Age is used as a measure or approximation of one or more other 
characteristics; and
    (b) The other characteristic(s) must be measured or approximated in 
order for the normal operation of the program or activity to continue, 
or to achieve any statutory objective of the program or activity; and

[[Page 75]]

    (c) The other characteristic(s) can be reasonably measured or 
approximated by the use of age; and
    (d) The other characteristic(s) are impractical to measure directly 
on an individual basis.

Sec. 7.922  Exceptions to the rules against age discrimination: 
          Reasonable factors other than age.

    A recipient is permitted to take an action otherwise prohibited by 
Sec. 7.920 which is based on a factor other than age, even though that 
action may have a disproportionate effect on persons of different ages 
only if the factor bears a direct and substantial relationship to the 
normal operation of the program or activity or to the achievement of a 
statutory objective.

Sec. 7.923  Burden of proof for exceptions.

    The burden of proving that an age distinction or other action falls 
within the exceptions outlined in Secs. 7.921 and 7.922 is on the 
recipient of Federal financial assistance.

Sec. 7.924  Affirmative action by recipient.

    Even in the absence of a finding of discrimination, a recipient may 
take affirmative action to overcome the effects of conditions that 
resulted in the limited participation in the recipient's program or 
activity on the basis of age.

Sec. 7.925  Special benefits for children and the elderly.

    If a recipient operating a program provides special benefits to the 
elderly or to children, such use of age distinctions shall be presumed 
to be necessary to the normal operation of the program, notwithstanding 
the provisions of Sec. 7.921.

Sec. 7.926  Age distinctions contained in FEMA regulations.

    Any age distinctions contained in a rule or regulation issued by 
FEMA shall be presumed to be necessary to the achievement of a statutory 
objective of the program to which the rule or regulation applies, 
notwithstanding the provisions of Sec. 7.921.

                        Duties of FEMA Recipients

Sec. 7.930  General responsibilities.

    Each FEMA recipient has primary responsibility to ensure that its 
programs and activities are in compliance with the Act and this 
regulation, and shall take steps to eliminate violations of the Act. A 
recipient also has responsibility to maintain records, provide 
information, and to afford FEMA access to its records to the extent FEMA 
finds necessary to determine whether the recipient is in compliance with 
the Act and this regulation.

Sec. 7.931  Notice to subrecipients and beneficiaries.

    (a) Where a recipient passes on Federal financial assistance from 
FEMA to subrecipients, the recipient shall provide the subrecipients 
written notice of their obligations under the Act and this regulation.
    (b) Each recipient shall make necessary information about the Act 
and this regulation available to its program beneficiaries in order to 
inform them about the protection against discrimination provided by the 
Act and this regulation.

Sec. 7.932  Assurance of compliance and recipient assessment of age 
          distinctions.

    (a) Each recipient of Federal financial assistance from FEMA shall 
sign a written assurance as specified by FEMA that it will comply with 
Act and this regulation.
    (b) Recipient assessment of age distinctions. (1) As part of the 
compliance review under Sec. 7.940 or complaint investigation under 
Sec. 7.943, FEMA may require a recipient employing the equivalent of 
fifteen or more employees to complete written evaluation, in a manner 
specified by the responsible Agency official, of any age distinction 
imposed in its program or activity receiving Federal financial 
assistance from FEMA to assess the recipient's compliance with the Act.
    (2) Whenever an assessment indicates a violation of the Act and the 
FEMA regulations, the recipient shall take corrective action.

[[Page 76]]

Sec. 7.933  Information requirement.

    Each recipient shall:
    (a) Keep records in a form acceptable to FEMA and containing 
information which FEMA determines are necessary to ascertain whether the 
recipient is complying with the Act and this regulation.
    (b) Provide to FEMA, upon request, information and reports which 
FEMA determines are necessary to ascertain whether the recipient is 
complying with the Act and this regulation.
    (c) Permit FEMA reasonable access to the books, records, accounts, 
and other recipient facilities and sources of information to the extent 
FEMA determines is necessary to ascertain whether the recipient is 
complying with the Act and this regulation.

         Investigation, Conciliation, and Enforcement Procedures

Sec. 7.940  Compliance reviews.

    (a) FEMA may conduct compliance reviews and preaward reviews or use 
other similar procedures that will permit it to investigate and correct 
violations of the Act and this regulation. FEMA may conduct these 
reviews even in the absence of a complaint against a recipient. The 
reviews may be as comprehensive as necessary to determine whether a 
violation of the Act and this regulation has occurred.
    (b) If a compliance review or preaward review indicates a violation 
of the Act or this regulation, FEMA will attempt to achieve voluntary 
compliance with the Act. If voluntary compliance cannot be achieved, 
FEMA will arrange for enforcement as described in Sec. 7.945.

Sec. 7.941  Complaints.

    (a) Any person, individually or as a member of a class or on behalf 
of others, may file a complaint with FEMA, alleging discrimination 
prohibited by the Act or these regulations occurring after the date of 
final adoption of this rule. A complainant shall file a complaint within 
180 days from the date the complainant first had knowledge of the 
alleged act of discrimination. However, for good cause showing, FEMA may 
extend this time limit.
    (b) FEMA will consider the date a complaint is filed to be the date 
upon which the complaint is sufficient to be processed. A complaint is 
deemed ``sufficient'' when it contains particulars (e.g., names, 
addresses, and telephone numbers of parties involved; date(s) of alleged 
discrimination; kind(s) of alleged discrimination) upon which to begin 
an investigation.
    (c) FEMA will attempt to facilitate the filing of complaints 
wherever possible, including taking the following measures:
    (1) Accepting as a sufficient complaint any written statement which 
identifies the parties involved and the date the complainant first had 
knowledge of the alleged violation, describes generally the action or 
practice complained of, and is signed by the complainant.
    (2) Freely permitting a complainant to add information to the 
complaint to meet the requirements of a sufficient complaint.
    (3) Notifying the complainant and the recipient of their rights and 
obligations under the complaint procedure, including the right to have a 
representative at all stages of the complaint procedure.
    (4) Notifying the complainant and the recipient (or their 
representatives) of their right to contact FEMA for information and 
assistance regarding the complaint resolution process.
    (d) FEMA will return to the complainant any complaint outside the 
jurisdiction of this regulation, and will state the reason(s) why it is 
outside the jurisdiction of this regulation.

Sec. 7.942  Mediation.

    (a) FEMA will promptly refer to a mediation agency designated by the 
Director all sufficient complaints that:
    (1) Fall within the jurisdiction of the Act and this regulation, 
unless the age distinction complained of is clearly within an exception; 
and,
    (2) Contain all information necessary for further processing.
    (b) Both the complainant and the recipient shall participate in the 
mediation process to the extent necessary to reach an agreement or for 
the mediator to make an informed judgment that an agreement is not 
possible.

[[Page 77]]

    (c) If the complainant and the recipient reach an agreement, the 
mediator shall prepare a written statement of the agreement and have the 
complainant and the recipient sign it. The mediator shall send a copy of 
the agreement to FEMA. FEMA will take no further action on the complaint 
unless the complainant or the recipient fails to comply with the 
agreement.
    (d) The mediator shall protect the confidentiality of all 
information obtained in the course of the mediation process. No mediator 
shall testify in any adjudicative proceeding, produce any document, or 
otherwise disclose any information obtained in the course of the 
mediation process without prior approval of the head of the mediation 
agency.
    (e) The mediation will proceed for a maximum of 60 days after a 
complaint is filed with FEMA. Mediation ends if:
    (1) Sixty days elapse from the time the complaint is filed; or
    (2) Prior to the end of that 60 day period, an agreement is reached; 
or
    (3) Prior to the end of that 60 day period, the mediator determines 
that an agreement cannot be reached. This 60 day period may be extended 
by the mediator, with the concurrence of FEMA, for not more than 30 days 
if the mediator determines agreement will likely be reached during such 
extended period.
    (f) The mediator shall return unresolved complaints to FEMA.

Sec. 7.943  Investigation.

    (a) Informal investigation. (1) FEMA will investigate complaints 
that are unresolved after mediation or are reopened because of a 
violation of a mediation agreement.
    (2) As part of the initial investigation, FEMA will use informal 
fact finding methods, including joint or separate discussion with the 
complainant and recipient, to establish the facts and, if possible, 
settle the complaint on terms that are mutually agreeable to the 
parties. FEMA may seek the assistance of any involved state program 
agency.
    (3) FEMA will put any agreement in writing and have it signed by the 
parties and an authorized official at FEMA.
    (4) The settlement shall not affect the operation of any other 
enforcement effort of FEMA, including compliance reviews and 
investigation of other complaints which may involve the recipient.
    (5) The settlement is not a finding of discrimination against a 
recipient.
    (b) Formal investigation. If FEMA cannot resolve the complaint 
through informal investigation, it will begin to develop formal findings 
through further investigation of the complaint. If the investigation 
indicates a violation of this regulation, FEMA will attempt to obtain 
voluntary compliance, it will begin enforcement as described in 
Sec. 7.945.

Sec. 7.944  Prohibition against intimidation or retaliation.

    A recipient may not engage in acts of intimidation or retaliation 
against any person who:
    (a) Attempts to assert a right protected by the Act or this 
regulation; or
    (b) Cooperates in any mediation, investigation, hearing, or other 
part of FEMA's investigation, conciliation and enforcement process.

Sec. 7.945  Compliance procedure.

    (a) FEMA may enforce the Act and this regulation through:
    (1) Termination of a recipient's Federal financial assistance from 
FEMA under the program or activity involved where the recipient has 
violated the Act or this regulation. The determination of the 
recipient's violation may be made only after a recipient has had an 
opportunity for a hearing on the record before an administrative law 
judge.
    (2) Any other means authorized by law including but not limited to:
    (i) Referral to the Department of Justice for proceedings to enforce 
any rights of the United States or obligations of the recipient created 
by the Act or this regulation.
    (ii) Use of any requirement of or referral to any Federal, State or 
local government agency that will have the effect of correcting a 
violation of the Act or this regulation.

[[Page 78]]

    (b) FEMA will limit any termination under Sec. 7.945(a)(1) to the 
particular recipient and particular program or activity or part of such 
program and activity FEMA finds in violation of this regulation. FEMA 
will not base any part of a termination on a finding with respect to any 
program or activity of the recipient which does not receive Federal 
financial assistance from FEMA.
    (c) FEMA will take no action under paragraph (a) until:
    (1) The Director has advised the recipient of its failure to comply 
with the Act and this regulation and has determined that voluntary 
compliance cannot be obtained.
    (2) Thirty days have elapsed after the Director has sent a written 
report of the circumstances and grounds of the action to the committees 
of the Congress having legislative jurisdiction over the Federal program 
or activity involved. The Director will file a report whenever any 
action is taken under paragraph (a).
    (d) FEMA also may defer granting new Federal financial assistance 
from FEMA to a recipient when a hearing under Sec. 7.945(a)(1) is 
initiated.
    (1) New Federal financial assistance from FEMA includes all 
assistance for which FEMA requires an application or approval, including 
renewal or continuation of existing activities, or authorization of new 
activities, during the deferral period. New Federal financial assistance 
from FEMA does not include increases in funding as a result of changed 
computation of formula awards or assistance approved prior to the 
beginning of a hearing under Sec. 7.945(a)(1).
    (2) FEMA will not begin a deferral until the recipient has received 
a notice of an opportunity for a hearing under Sec. 7.945(a)(1). FEMA 
will not continue a deferral for more than 60 days unless a hearing has 
begun within that time or the time for beginning the hearing has been 
extended by mutual consent of the recipient for more than 30 days after 
the close of the hearing, unless the hearing results in a finding 
against the recipient.
    (3) FEMA will limit any deferral to the particular recipient and 
particular program or activity or part of such program or activity FEMA 
finds in violation of this regulation. FEMA will not base any part of a 
deferral on a finding with respect to any program or activity of the 
recipient which does not and would not, in connection with new funds, 
receive Federal financial assistance from FEMA.

Sec. 7.946  Hearings, decisions, post-termination proceedings.

    Certain FEMA procedural provisions applicable to title VI of the 
Civil Rights Act of 1964 apply to FEMA enforcement of this regulation. 
They are found at 44 CFR 7.10 through 7.16.

Sec. 7.947  Remedial action by recipient.

    Where FEMA finds a recipient has discriminated on the basis of age, 
the recipient shall take any remedial action that FEMA may require to 
overcome the effects of the discrimination. If another recipient 
exercises control over the recipient that had discriminated, FEMA may 
require both recipients to take remedial action.

Sec. 7.948  Alternate funds disbursal procedure.

    (a) When FEMA withholds funds from recipient under this regulation, 
the Director may, if allowable under the statute governing the 
assistance, disburse the withheld funds directly to an alternate 
recipient: Any public or nonprofit private organization or agency, or 
State or political subdivision of the State.
    (b) The Director will require any alternate recipient to 
demonstrate:
    (1) The ability to comply with this regulation; and
    (2) The ability to achieve the goals of the Federal statute 
authorizing the program or activity.

Sec. 7.949  Exhaustion of administrative remedies.

    (a) A complainant may file a civil action following the exhaustion 
of administrative remedies under the Act. Administrative remedies are 
exhausted if:
    (1) 180 days have elapsed since the complainant filed the complaint 
and FEMA had made no finding with regard to the complaint; or
    (2) FEMA issues any finding in favor of the recipient.

[[Page 79]]

    (b) If FEMA fails to make a finding within 180 days or issues a 
finding in favor of the recipient, FEMA shall:
    (1) Promptly advise the complainant in writing of this fact; and
    (2) Advise the complainant of his or her right to bring a civil 
action for injunctive relief; and
    (3) Inform the complainant:
    (i) That the complainant may bring a civil action only in a United 
States District Court for the district in which the recipient is located 
or transacts business;
    (ii) That a complainant prevailing in a civil action has the right 
to be awarded the costs of the action, including reasonable attorney's 
fees, but that the complainant must demand these costs in the complaint 
at the time it is filed.
    (iii) That before commencing the action, the complainant shall give 
30 days notice by registered mail to the Director, the Attorney General 
of the United States, and the recipient;
    (iv) That the notice must state: The alleged violation of the Act; 
the relief requested; the court in which the complainant is bringing the 
action; and whether or not attorney's fees are demanded in the event the 
complainant prevails; and
    (v) That the complainant may not bring an action if the same alleged 
violation of the Act by the same recipient is the subject of a pending 
action in any court (Federal or State) of the United States.



General Information Federal Coordination and Compliance
Federal Coordination and Compliance
Title VI Hotline: 1-888-TITLE-06
(1-888-848-5306) (Voice / TTY)
Leadership
Deeana Jang
Chief
Contact
U.S. Department of Justice
Civil Rights Division
Federal Coordination and Compliance Section, NWB
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

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