| 32 C.F.R. Ð 195.1 - 195.14
TITLE 32--NATIONAL DEFENSE
PART 195--NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS
OF THE DEPARTMENT OF DEFENSE--EFFECTUATION OF
TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
Sec.
195.1 Purpose.
195.2 Definitions.
195.3 Application.
195.4 Policy.
195.5 Responsibilities.
195.6 Assurances required.
195.7 Compliance information.
195.8 Conduct of investigations.
195.9 Procedure for effecting compliance.
195.10 Hearings.
195.11 Decisions and notices.
195.12 Judicial review.
195.13 Effect on other issuances.
195.14 Implementation.
Appendix A to Part 195--Programs to Which This Part Applies
Authority: Sec. 602, 78 Stat. 252; 42 U.S.C. 2000d-1; and the laws
referred to in appendix A.
Source: 29 FR 19291, Dec. 31, 1964, unless otherwise noted.
Redesignated at 56 FR 32965, July 18, 1991.
Sec. 195.1 Purpose.
The purpose of this part is to effectuate the provisions of Title VI
of the Civil Rights Act of 1964 (referred to in this part 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 any component of the Department of Defense.
Sec. 195.2 Definitions.
(a) Component means the Office of the Secretary of Defense, a
military department or a Defense agency.
(b) Responsible Department official means the Secretary of Defense
or other official of the Department of Defense or component thereof who
by law or by delegation has the principal responsibility within the
Department or component for the administration of the law extending such
assistance.
(c) 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.
(d) 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.
(e) The term program includes any program, project, or activity for
the provision of services, financial aid, or other benefits 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 financial assistance or such
non-Federal resources.
(f) The term facility includes all or any portion of structures,
equipment, or other real or personal property or interests therein, and
the provision of facilities includes the construction, expansion,
renovation, remodeling, alteration or acquisition of facilities.
(g) 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.
(h) 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.
(i) The term applicant means one who submits an application,
request, or plan required to be approved by a responsible Department
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. 195.3 Application.
This part applies to any program for which Federal financial
assistance is authorized under a law administered by any component of
the Department of Defense, including the federally assisted programs and
activities listed in appendix A of this part. This directive applies to
money paid, property transferred, or other Federal financial assistance
extended under any such program after January 7, 1965 pursuant to an
application approved prior to such date. This directive does not apply
to: (a) Any Federal financial assistance by way of insurance guaranty
contracts, (b) money paid, property transferred, or other assistance
extended under any such program before January 7, 1965, (c) any
assistance to any individual who is the ultimate beneficiary under any
such program, or (d) any employment practice, under any such program, of
any employer, employment agency, or labor organization, except as noted
in Sec. 195.4(b)(5) of this part. The fact that a program or activity is
not listed in appendix A shall not mean, if title VI of the Act is
otherwise applicable, that such program is not covered. Other programs
under statutes now in force or hereinafter enacted may be added to this
list by notice published in the Federal Register.
[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17959, July 5, 1973.
Redesignated and amended at 56 FR 32965, July 18, 1991]
Sec. 195.4 Policy.
(a) General. 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 to which this (part) applies.
(b) Specific discriminatory actions prohibited. (1) A recipient
under any program to which this part applies may not, directly or
through contractual or other arrangements, on the ground of race, color,
or national origin:
(i) Deny an individual any service, financial aid, or other benefit
provided under the program;
(ii) 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;
(iii) In determining the site or location of facilities, a recipient
may not make selections with the purpose of excluding individuals from,
denying them the benefits of, or subjecting them to discrimination under
any program to which this part applies, on the ground of race, color, or
national origin; or with the purpose or effect of defeating or
substantially impairing the accomplishment of the objectives of the Act
or this part.
(iv) 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;
(v) 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;
(vi) 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;
(vii) 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;
(viii) Deny a person the opportunity to participate as a member of a
planning or advisory body which is an integral part of the program.
(2) A recipient, in determining the types of services, financial
aid, or other benefits, or facilities which will be provided under any
such program, or the class of 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.
(3) 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.
(4)(i) In administering a program regarding which the recipient has
previously discriminated against persons on the ground of race, color,
or national origin, the recipient must take affirmative action to
overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient
in administering a program may take affirmative action to overcome the
effects of conditions which resulted in limiting participation by
persons of a particular race, color, or national origin.
(5) Where a primary objective of the Federal financial assistance is
not to provide employment, but nevertheless discrimination on the
grounds of race, color or national origin in the employment practices of
the recipient or other persons subject to this Directive tends, on the
grounds of race, color, or national origin of the intended
beneficiaries, to exclude intended beneficiaries from participation in,
to deny them benefits of, or to subject them to discrimination under any
program to which this Directive applies, the recipient or other persons
subject to this Directive are prohibited from (directly or
through contractual or other arrangements) subjecting an individual to
discrimination on the grounds of race, color, or national origin in its
employment practices under such program (including recruitment or
recruitment advertising; employment, layoff or termination; upgrading,
demotion or transfer; rates of pay and/or other forms of compensation;
and use of facilities), to the extent necessary to assure equality of
opportunity to, and nondiscriminatory treatment of the beneficiaries.
Any action taken by a component pursuant to this provision with respect
to a state or local agency subject to Standards for a Merit System of
Personnel Administration, 45 CFR part 70, shall be consistent with those
standards and shall be coordinated with the U.S. Civil Service
Commission.
(6) The enumeration of specific forms of prohibited discrimination
in this section does not limit the generality of the prohibition in
paragraph (a) of this section.
[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17959, July 5, 1973]
Sec. 195.5 Responsibilities.
(a) The Assistant Secretary of Defense (Manpower) shall be
responsible for insuring that the policies of this part are effectuated
throughout the Department of Defense. He may review from time to time as
he deems necessary the implementation of these policies by the
components of the Department of Defense.
(b) The Secretary of each Military Department is responsible for
implementing this part with respect to programs and activities receiving
financial assistance from his Military Department; and the Assistant
Secretary of Defense (Manpower) is responsible for similarly
implementing this part with respect to all other components of the
Department of Defense. Each may designate official(s) to fulfill this
responsibility in accordance with Sec. 195.2(b).
(c) The Assistant Secretary of Defense (Manpower) or, after
consultation with the Assistant Secretary of Defense (Manpower), the
Secretary of each Military Department or other responsible Department
official designated by the Assistant Secretary of Defense (Manpower) may
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 part (other than responsibility for final decision as provided
in Sec. 195.11), including the achievement of effective coordination and
maximum uniformity within the Department and within the Executive Branch
of the Government in the application of Title VI and this part to
similar programs and in similar situations.
[29 FR 19291, Dec. 31, 1964. Redesignated and amended at 56 FR 32965,
July 18, 1991]
Sec. 195.6 Assurances required.
(a) General. (1)(i) Every application for Federal financial
assistance to carry out a program to which this part applies, except a
program to which paragraph (b) of this section applies, and every
application for Federal financial assistance to provide a facility
shall, as a condition to its approval and the extension of any Federal
financial assistance pursuant to the application, contain or be
accompanied by an assurance that the program will be conducted or the
facility operated in compliance with all requirements imposed by or
pursuant to this part.
(ii) In the case where the Federal financial assistance is to
provide or is in the form of personal property, or real property or
interest therein or structures thereon, the assurance shall obligate the
recipient, or, in the case of a subsequent transfer, the transferee, for
the period during which the property 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 and
benefits, or for as long as the recipient retains ownership or
possession of the property, whichever is longer. In all other cases the
assurance shall obligate the recipient for the period during which
Federal financial assistance is extended pursuant to the application. In
any case in which Federal financial assistance is extended without an
application having been made, such extension shall be subject to the
same assurances as if an application had been made. The responsible
Department official shall specify the form of the foregoing assurances
for each program, and the extent to which like assurances will be
required of subguarantees, 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.
(2) In the case of real property, structures or improvements
thereon, or interest therein, which was acquired through a program of
Federal financial assistance, or in the case where Federal financial
assistance is provided in the form of a transfer of real property or
interest therein from the Federal Government, the instrument effecting
or recording the transfer, shall contain a covenant running with the
land assuring nondiscrimination for the period during which the real
property is used for a purpose for which the Federal financial
assistance is extended or for another purpose involving the provision of
similar services or benefits, or for as long as the recipient retains
ownership or possession of the property, whichever is longer. Where no
transfer of property is involved, but property is improved under a
program of Federal financial assistance, the recipient shall agree to
include such a covenant in any subsequent transfer of such property.
Where the property is obtained from the Federal Government, such
covenant may also include a condition coupled with a right to be
reserved by the Department to revert title to the property in the event
of a breach of the covenant where, in the discretion of the responsible
Department official, such a condition and right of reverter is
appropriate to the program under which the real property is obtained and
to the nature of the grant and the grantee. In the event a transferee of
real property proposes to mortgage or otherwise encumber the real
property as security for financing construction of new, or improvement
of existing facilities on such property for the purposes for which the
property was transferred, the responsible Department official may agree,
upon request of the transferee and if necessary to accomplish such
financing, and upon such conditions as he deems appropriate, to forbear
the exercise of such right to revert title for so long as the lien of
such mortgage or other encumbrance remains effective. In programs
receiving Federal financial assistance in the form, or for the
acquisition of real property or an interest in real property, to the
extent that rights to space on, over, or under any such property are
included as part of the program receiving such assistance, the
nondiscrimination requirements of this part shall extend to any facility
located wholly or in part in such space.
(3) The assurance required in the case of a transfer of surplus
personal property shall be inserted in a written agreement by and
between the Department of Defense component concerned and the recipient.
(b) Continuing State programs. Every application by a State agency
to carry out a program involving continuing Federal financial assistance
to which this part applies shall as a condition to its approval and the
extension of any Federal financial assistance pursuant to the
application (1) contain or be accompanied by a statement that the
program is (or, in the case of a new program, will be) conducted in
compliance with all requirements imposed by or pursuant to this part,
and (2) provide or be accompanied by provision for such methods of
administration for the program as are found by the responsible
Department official to give reasonable assurance that the applicant and
all recipients of Federal financial assistance under such program will
comply with all requirements imposed by or pursuant to this part. In
cases of continuing State programs in which applications are not made,
the extension of Federal financial assistance shall be subject to the
same conditions under this subsection as if applications had been made.
(c) Assurances from institutions. (1) In the case of Federal
financial assistance to an institution of higher education, the
assurance required by this section shall extend to admission practices
and to all other practices relating to the treatment of students.
(2) The assurance required with respect to an institution of higher
education, 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 of the institution or to the opportunity to
participate in the provision of services or other benefits to such
individuals, shall be applicable to the entire institution unless the
applicant establishes, to the satisfaction of the responsible Department
official, 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.
(d) Elementary and secondary schools. The requirement of paragraph
(a), (b), or (c) of this section, with respect to any elementary or
secondary school or school system shall be deemed to be satisfied if
such school or school system (1) 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 (2) submits a plan
for the desegregation of such school or school system which the
responsible official of the Department of Health, Education, and Welfare
determines is adequate to accomplish the purposes of the Act and this
part, and provides reasonable assurance that it will carry out such
plan; in any case of continuing Federal financial assistance the said
Department officer may reserve the right to redetermine, after such
period as may be specified by him, the adequacy of the plan to
accomplish the purpose of the Act or this part within the earliest
practicable time. In any case in 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 said
order.
[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17960, July 5, 1973]
Sec. 195.7 Compliance information.
(a) Cooperation and assistance. Each responsible Department official
shall to the fullest extent practicable seek the cooperation of
recipients in obtaining compliance with this part and shall provide
assistance and guidance to recipients to help them comply voluntarily
with this part.
(b) Compliance reports. Each recipient shall keep such records and
submit to the responsible Department official timely, complete and
accurate compliance reports at such times, and in such form and
containing such information, as the responsible Department official may
determine to be necessary to enable him to ascertain whether the
recipient has complied or is complying with this part. In general,
recipients should have available for the Department racial and ethnic
data showing the extent to which members of minority groups are
beneficiaries of federally assisted programs. 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 imposed
pursuant to this part.
(c) Access to sources of information. Each recipient shall permit
access by the responsible Department official during normal business
hours to such of its books, records, accounts, and other sources of
information, and its facilities as may be pertinent to ascertain
compliance with this part. Where any information required of a recipient
is in the exclusive possession of any other institution or person and
this 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 part 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 Department official
finds necessary to apprise such persons of the protections against
discrimination assured them by the Act and this part.
[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17960, July 5, 1973]
Sec. 195.8 Conduct of investigations.
(a) Periodic compliance reviews. The responsible Department official
or his designee(s) shall from time to time review the practices of
recipients to determine whether they are complying with this part.
(b) Complaints. Any person who believes himself or any specific
class of individuals to be subjected to discrimination prohibited by
this part may by himself or by a representative file with the
responsible Department official a written complaint. 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 Department official.
(c) Investigations. The responsible Department official will make a
prompt investigation whenever a compliance review, report, complaint, or
any other information indicates a possible failure to comply with this
part. The investigation should include, where appropriate, a review of
the pertinent practices and policies of the recipient, the circumstances
under which the possible noncompliance with this part occurred, and
other factors relevant to a determination of whether the recipient has
failed to comply with this part.
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
part, the responsible Department official 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 in Sec. 195.9.
(2) If an investigation does not warrant action pursuant to
paragraph (d)(1) of this section, the responsible Department official
will so inform the recipient and the complainant, if any, in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or
other person shall intimidate, threaten, coerce, or discriminate against
any individual for the purpose of interfering with any right or
privilege secured by section 601 of the Act or this part, or because he
has made a complaint, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this part. The
identity of complainants shall not be disclosed except when necessary to
carry out the purposes of this part including the conduct of any
investigation, hearing, or judicial proceeding arising thereunder.
[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17960, July 5, 1974.
Redesignated and amended at 56 FR 32965, July 18, 1991]
Sec. 195.9 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this part, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part may be effected by the suspension or termination of or refusal
to grant or to continue Federal financial assistance or by any other
means authorized by law as determined by the responsible Department
official. 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 proceedings under State or local law.
(b) Noncompliance with Sec. 195.6. If an applicant fails or refuses
to furnish an assurance required under Sec. 195.6 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 component of the
Department of Defense concerned shall not be required to provide
assistance in such a
case during the pendency of the administrative proceedings under such
paragraph except that the component shall continue assistance during the
pendency of such proceedings where such assistance is due and payable
pursuant to an application therefor approved prior to the effective date
of this part.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. Except as provided in paragraph (b) of this
section no order suspending, terminating or refusing to grant or
continue Federal financial assistance shall become effective until (1)
the responsible Department 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, after opportunity for a hearing (as provided in Sec. 195.10),
of a failure by the applicant or recipient to comply with a requirement
imposed by or pursuant to this part, (3) the action has been approved by
the Secretary of Defense pursuant to Sec. 195.11, and (4) the expiration
of 30 days after the Secretary of Defense 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 affect compliance by
any other means authorized by law shall be taken until (1) the
responsible Department official has determined that compliance cannot be
secured by voluntary means, (2) the action has been approved by the
Assistant Secretary of Defense (Manpower), (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 this part and
to take such corrective action as may be appropriate.
[29 FR 19291, Dec. 31, 1964. Redesignated and amended at 56 FR 32965,
July 18, 1991]
Sec. 195.10 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by Sec. 195.9, 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
Department 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 hearing.
An applicant or recipient may waive a hearing and submit written
information and argument. The failure of an applicant or recipient to
request a hearing under this paragraph or to appear at a hearing for
which a date has been set shall be deemed to be a waiver of the right to
a hearing under section 602 of the Act and Sec. 195.11(c) and consent to
the making of a decision on the basis of such information as is
available.
(b) Time and place of hearing. Hearings shall be held at the offices
of the responsible component of the Department of Defense in Washington,
D.C., at a time fixed by the responsible Department official unless he
determines that the convenience of the applicant or recipient or of the
component requires that another place be selected. Hearings shall be
held before the responsible Department official or, at his discretion,
before a hearing examiner designated by him.
(c) Hearing examiner. The examiner shall be a field grade officer or
civilian employee above the grade of GS-12 (or the equivalent) who shall
be a person admitted to practice law before a Federal court or the
highest court of a State.
(d) Right to counsel. In all proceedings under this section, the
applicant or recipient and the responsible component of the Department
shall have the right to be represented by counsel.
(e) Procedures. (1) The recipient shall receive an open hearing at
which he or his counsel may examine any witnesses present. Both the
responsible Department official 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 part, but rules or principles designed to
assure production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary by the officer conducting the hearing. The hearing officer may
exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for 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.
(f) 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 under Title VI of the Act, the
Assistant Secretary of Defense (Manpower), the Secretary of a Military
Department, or other responsible Department official designated by the
Assistant Secretary of Defense (Manpower) after consultation with the
Assistant Secretary of Defense (Manpower) 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 appropriate procedures not inconsistent with this part.
Final decisions in such cases, insofar as this part is concerned, shall
be made in accordance with Sec. 195.11.
[29 FR 19291, Dec. 31, 1964, as amended at 30 FR 133, Jan. 7, 1965.
Redesignated and amended at 56 FR 32965, July 18, 1991]
Sec. 195.11 Decisions and notices.
(a) Decision by person other than the responsible department
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 Department 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
Department official his exceptions to the initial decision, with his
reasons therefor. In the absence of exceptions, the responsible
Department 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 Department 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 Department official.
(b) Decisions on record or review by the responsible department
official. Whenever a record is certified to the responsible Department
official for decision or he reviews the decision of a hearing examiner
pursuant to paragraph (a) of this section or whenever the responsible
Department official 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 the final decision of the
responsible Department official shall be given in writing to the
applicant or recipient and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to Sec. 195.10(a), a decision shall be made
by the responsible Department 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 Department 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 part with
which it is found that the applicant or recipient has failed to comply.
(e) Approval by the Secretary of Defense. Any final decision of a
responsible Department official which provides for the suspension or
termination of, or the refusal to grant or continue Federal financial
assistance, or the imposition of any other sanction available under this
part or the Act, shall promptly be transmitted to the Secretary of
Defense, who may approve such decision, may vacate it, or remit or
mitigate any sanction imposed.
(f) Contents 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
part, 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 part, or to
have otherwise failed to comply with this part, unless and until it
corrects its noncompliance and satisfies the responsible Department
official that it will fully comply with this part.
(g) Post-termination proceedings. (1) An applicant or recipient
adversely affected by an order issued under paragraph (f) of this
section shall be restored to full eligibility to receive Federal
financial assistance if it satisfies the terms and conditions of that
order for such eligibility or if it brings itself into compliance with
this part and provides reasonable assurance that it will fully comply
with this part.
(2) Any applicant or recipient adversely affected by an order
entered pursuant to paragraph (f) of this section may at any time
request the responsible Department official to restore fully its
eligibility to receive Federal financial assistance. Any such request
shall be supported by information showing that the applicant or
recipient has met the requirements of paragraph (g)(1) of this section.
If the responsible Department official determines that those
requirements have been satisfied, he shall restore such eligibility.
(3) If the responsible Department official denies any such request,
the applicant or recipient may submit a request for a hearing in
writing, specifying why it believes such official to have been in error.
It shall thereupon be given an expeditious hearing, with a decision on
the record, in accordance with rules of procedure issued by the
responsible Department official. The applicant or recipient will be
restored to such eligibility if it proves at such a hearing that it
satisfied the requirements of paragraph (g)(1) of this section. While
proceedings under this subsection are pending, the sanctions imposed by
the order issued under paragraph (f) of this section shall remain in
effect.
[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17960, July 5, 1973.
Redesignated and amended at 56 FR 32965, July 18, 1991]
Sec. 195.12 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. 195.13 Effect on other issuances.
All issuances heretofore issued by any officer of the Department of
Defense or its components 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 part 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 part, except that nothing in this
part 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 part. Nothing in this
part, however, shall be deemed to supersede any of the following
(including future amendments thereof):
(a) Executive Orders 10925 and 11114 and issuances thereunder,
(b) The ``Standards for a Merit System of Personnel
Administration,'' issued jointly by the Secretaries of Defense, of
Health, Education, and Welfare, and of Labor, 28 FR 734, or
(c) Executive Order 11063 and issuances thereunder, or any other
issuances, insofar as such Order or issuances prohibit discrimination on
the ground of race, color, or national origin in any program or
situation to which this part is inapplicable, or prohibit discrimination
on any other ground.
Sec. 195.14 Implementation.
The Secretary of each Military Department shall submit regulations
implementing this part to the Assistant Secretary of Defense (Manpower).
Appendix A to Part 195--Programs to Which This Part Applies
1. The Army and Air National Guard (Title 32, United States Code).
2. Various programs involving loan or other disposition of surplus
property (various general and specialized statutory provisions
including: 40 United States Code 483, 484, 512; 49 United States Code
1101-1119; 10 United States Code 2541, 2542, 2543, 2572, 2662, 7308,
7541, 7542, 7545, 7546, 7547).
3. National Program for Promotion of Rifle Practice (10 United
States Code 4307 and annual Department of Defense Appropriation Act).
4. National Defense Cadet Corps Program (10 United States Code
3540(b), 4651).
5. Office of Civil Defense assistance to programs of adult education
in civil defense subjects (50 United States Code App. 2281 (e), (f)).
6. Office of Civil Defense radiological instruments grants (50
United States Code App. 2281(h)).
7. Office of Civil Defense program (with Public Health Service) for
development of instructional materials on medical self-help (50 United
States Code App. 2281 (e), (f)).
8. Office of Civil Defense university extension programs for civil
defense instructor training (50 United States Code App. 2281 (e)).
9. Office of Civil Defense programs for survival supplies and
equipment, survival training, emergency operating center construction,
and personnel and administrative expenses (50 United States Code App.
2281(i), 2285).
10. Office of Civil Defense Shelter Provisioning Program (50 United
States Code App. 2281(h)).
11. Office of Civil Defense assistance to students attending Office
of Civil Defense schools (50 United States Code App. 2281(e)).
12. Office of Civil Defense loans of equipment or materials from OCD
stockpiles for civil defense, including local disaster purposes (50
United States Code App. 2281).
13. Navy Science Cruiser Program (SecNav Instruction 5720.19A).
14. Civil Air Patrol (10 United States Code 9441).
15. Research grants made under the authority of Pub. L. 85-934 (42
United States Code 1892).
16. Contracts with nonprofit institutions of higher education or
with nonprofit organizations whose primary purpose is the conduct of
scientific research, wherein title to equipment purchased with funds
under such contracts may be vested in such institutions or organizations
under the authority of Pub. L. 85-934 (42 United States Code 1891).
17. Army Corps of Engineers participation in cooperative
investigations and studies concerning erosion of shores of coastal and
lake waters (33 United States Code 426).
18. Army Corps of Engineers assistance in the construction of works
for the restoration and protection of shores and beaches (33 United
States Code 426e-h).
19. Public park and recreational facilities at water resource
development projects under the administrative jurisdiction of the
Department of the Army (16 United States Code 460d and Federal Water
Project Recreation Act, Pub. L. 89-72, 79 Stat. 218, July 9, 1965).
20. Payment to States of proceeds of lands acquired by the United
States for flood control, navigation, and allied purposes (33 United
States Code 701-c-3).
21. Grants of easements without consideration, or at a nominal or
reduced consideration, on lands under the control of the Department of
the Army at water resource development projects (33 United States Code
558c and 702d-1; 10 United States Code 2668 and 2669); 43 United States
Code 961; 40 United States Code 319).
22. Army Corps of Engineers assistance in the construction of small
boat harbor projects (33 United States Code 540 and 577, and 47 Stat.
42, Feb. 10, 1932).
23. Emergency bank protection works constructed by the Army Corps of
Engineers for protection of highways, bridge approaches, and public
works (33 United States Code 701r).
24. Assistance to States and local interests in the development of
water supplies for municipal and industrial purposes in connection with
Army Corps of Engineers reservoir projects (Water Supply Act of 1958, 43
United States Code 390b).
25. Army Corps of Engineers contracts for remedial works under
authority of section 111 of Act of July 3, 1958 (33 United States Code
633).
[29 FR 19291, Dec. 31, 1964, as amended at 31 FR 6831, May 7, 1966]
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