| 49 CFR 21
TITLE 49--TRANSPORTATION
Subtitle A--Office of the Secretary of Transportation
PART 21--NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE DEPARTMENT OF TRANSPORTATION--EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
Sec.
21.1 Purpose.
21.3 Application of this part.
21.5 Discrimination prohibited.
21.7 Assurances required.
21.9 Compliance information.
21.11 Conduct of investigations.
21.13 Procedure for effecting compliance.
21.15 Hearings.
21.17 Decisions and notices.
21.19 Judicial review.
21.21 Effect on other regulations, forms, and instructions.
21.23 Definitions.
Appendix A to Part 21--Activities to Which This Part Applies
Appendix B to Part 21--Activities to Which This Part Applies When a
Primary Objective of the Federal Financial Assistance is to
Provide Employment
Appendix C to Part 21--Application of Part 21 to Certain Federal
Financial Assistance of the Department of Transportation
Authority: Sec. 602, 42 U.S.C. 2000d-1.
Source: 35 FR 10080, June 18, 1970, unless otherwise noted.
Sec. 21.1 Purpose.
The purpose of this part 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 grounds of
race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program or activity receiving Federal financial assistance
from the Department of Transportation.
Sec. 21.3 Application of this part.
(a) This part applies to any program for which Federal financial
assistance is authorized under a law administered by the Department,
including the federally assisted programs and activities listed in
appendix A to this part. It also applies to money paid, property
transferred, or other Federal financial assistance extended under any
such program after the effective date of this part pursuant to an
application approved before that effective date. This part does not
apply to:
(1) Any Federal financial assistance by way of insurance or guaranty
contracts;
(2) Money paid, property transferred, or other assistance extended
under any such program before the effective date of this part, except
where such assistance was subject to the title VI regulations of any
agency whose responsibilities are now exercised by this Department;
(3) Any assistance to any individual who is the ultimate beneficiary
under any such program; or
(4) Any employment practice, under any such program, of any
employer, employment agency, or labor organization, except to the extent
described in Sec. 21.5(c).
The fact that a program or activity is not listed in appendix A to this
part 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 appendix A to this part.
(b) In any program receiving Federal financial assistance in the
form, or for the acquisition, of real property or an interest in real
property, to the extent that rights to space on, over, or under any such
property are included as part of the program receiving that assistance,
the nondiscrimination requirement of this part shall extend to any
facility located wholly or in part in that space.
Sec. 21.5 Discrimination prohibited.
(a) General. No person in the United States shall, on the grounds of
race, color, or national origin be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under, any program to which this part applies.
(b) Specific discriminatory actions prohibited:
(1) A recipient under any program to which this part applies may
not, directly or through contractual or other arrangements, on the
grounds of race, color, or national origin.
[[Page 185]]
(i) Deny a person any service, financial aid, or other benefit
provided under the program;
(ii) Provide any service, financial aid, or other benefit to a
person which is different, or is provided in a different manner, from
that provided to others under the program;
(iii) Subject a person to segregation or separate treatment in any
matter related to his receipt of any service, financial aid, or other
benefit under the program;
(iv) Restrict a person in any way in the enjoyment of any advantage
or privilege enjoyed by others receiving any service, financial aid, or
other benefit under the program;
(v) Treat a person differently from others in determining whether he
satisfies any admission, enrollment, quota, eligibility, membership, or
other requirement or condition which persons must meet in order to be
provided any service, financial aid, or other benefit provided under the
program;
(vi) Deny a person an opportunity to participate in the program
through the provision of services or otherwise or afford him an
opportunity to do so which is different from that afforded others under
the program; or
(vii) Deny a person the opportunity to participate as a member of a
planning, advisory, or similar body which is an integral part of the
program.
(2) A recipient, in determining the types of services, financial
aid, or other benefits, or facilities which will be provided under any
such program, or the class of person to whom, or the situations in
which, such services, financial aid, other benefits, or facilities will
be provided under any such program, or the class of persons to be
afforded an opportunity to participate in any such program; may not,
directly or through contractual or other arrangements, utilize criteria
or methods of administration which have the effect of subjecting persons
to discrimination because of their race, color, or national origin, or
have the effect of defeating or substantially impairing accomplishment
of the objectives of the program with respect to individuals of a
particular race, color, or national origin.
(3) In determining the site or location of facilities, a recipient
or applicant may not make selections with the purpose or effect of
excluding persons from, denying them the benefits of, or subjecting them
to discrimination under any program to which this regulation applies, on
the grounds of race, color, or national origin; or with the purpose or
effect of defeating or substantially impairing the accomplishment of the
objectives of the Act or this part.
(4) As used in this section the services, financial aid, or other
benefits provided under a program receiving Federal financial assistance
include any service, financial aid, or other benefit provided in or
through a facility provided with the aid of Federal financial
assistance.
(5) The enumeration of specific forms of prohibited discrimination
in this paragraph does not limit the generality of the prohibition in
paragraph (a) of this section.
(6) Examples demonstrating the application of the provisions of this
section to certain programs of the Department of Transportation are
contained in appendix C of this part.
(7) This part does not prohibit the consideration of race, color, or
national origin if the purpose and effect are to remove or overcome the
consequences of practices or impediments which have restricted the
availability of, or participation in, the program or activity receiving
Federal financial assistance, on the grounds of race, color, or national
origin. Where prior discriminatory practice or usage tends, on the
grounds of race, color, or national origin to exclude individuals from
participation in, to deny them the benefits of, or to subject them to
discrimination under any program or activity to which this part applies,
the applicant or recipient must take affirmative action to remove or
overcome the effects of the prior discriminatory practice or usage. Even
in the absence of prior discriminatory practice or usage, a recipient in
administering a program or activity to which this part applies, is
expected to take affirmative action to assure that no person is excluded
from participation in or denied the benefits of the program or activity
on the grounds of race, color, or national origin.
[[Page 186]]
(c) Employment practices:
(1) Where a primary objective of a program of Federal financial
assistance to which this part applies is to provide employment, a
recipient or other party subject to this part shall not, directly or
through contractual or other arrangements, subject a person to
discrimination on the ground of race, color, or national origin in its
employment practices under such program (including recruitment or
recruitment advertising, hiring, firing, upgrading, promotion, demotion,
transfer, layoff, termination, rates of pay or other forms of
compensation or benefits, selection for training or apprenticeship, use
of facilities, and treatment of employees). Such recipient shall take
affirmative action to insure that applicants are employed, and employees
are treated during employment, without regard to their race, color, or
national origin. The requirements applicable to construction employment
under any such program shall be those specified in or pursuant to Part
III of Executive Order 11246 or any Executive order which supersedes it.
(2) Federal financial assistance to programs under laws funded or
administered by the Department which have as a primary objective the
providing of employment include those set forth in appendix B to this
part.
(3) Where a primary objective of the Federal financial assistance is
not to provide employment, but discrimination on the grounds of race,
color, or national origin in the employment practices of the recipient
or other persons subject to the regulation tends, on the grounds of
race, color, or national origin, to exclude individuals from
participation in, to deny them the benefits of, or to subject them to
discrimination under any program to which this regulation applies, the
provisions of paragraph (c)(1) of this section shall apply to the
employment practices of the recipient or other persons subject to the
regulation, to the extent necessary to assure equality of opportunity
to, and nondiscriminatory treatment of, beneficiaries.
(d) A recipient may not make a selection of a site or location of a
facility if the purpose of that selection, or its effect when made, is
to exclude individuals from participation in, to deny them the benefits
of, or to subject them to discrimination under any program or activity
to which this rule applies, on the grounds of race, color, or national
origin; or if the purpose is to, or its effect when made will,
substantially impair the accomplishment of the objectives of this part.
[35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997, July
5, 1973]
Sec. 21.7 Assurances required.
(a) General. (1) 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.
Every program of Federal financial assistance shall require the
submission of such an assurance. In the case where the Federal financial
assistance is to provide or is in the form of personal property, or real
property or interest therein or structures thereon, the assurance shall
obligate the recipient, or, in the case of a subsequent transfer, the
transferee, for the period during which the property is used for a
purpose for which the Federal financial assistance is extended or for
another purpose involving the provision of similar services or benefits,
or for as long as the recipient retains ownership or possession of the
property, whichever is longer. In all other cases the assurance shall
obligate the recipient for the period during which Federal financial
assistance is extended to the program. In the case where the assistance
is sought 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. The Secretary shall specify
the form of the foregoing assurances for each program, and the extent to
which like assurances will be required
[[Page 187]]
of subgrantees, 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 where Federal financial assistance is provided in
the form of a transfer of real property, structures, or improvements
thereon, or interest therein, from the Federal Government, the
instrument effecting or recording the transfer shall contain a covenant
running with the land assuring nondiscrimination for the period during
which the real property is used for a purpose for which the Federal
financial assistance is extended or for another purpose involving the
provision of similar services or benefits. Where no transfer of property
or interest therein from the Federal Government is involved, but
property is acquired or improved under a program of Federal financial
assistance, the recipient shall agree to include such covenant in any
subsequent transfer of such property. When the property is obtained from
the Federal Government, such covenant may also include a condition
coupled with a right to be reserved by the Department to revert title to
the property in the event of a breach of the covenant where, in the
discretion of the Secretary, such a condition and right of reverter is
appropriate to the program under which the real property is obtained and
to the nature of the grant and the grantee. In such event if a
transferee of real property proposes to mortgage or otherwise encumber
the real property as security for financing construction of new, or
improvement of existing, facilities on such property for the purposes
for which the property was transferred, the Secretary may agree, upon
request of the transferee and if necessary to accomplish such financing,
and upon such conditions as he deems appropriate, to subordinate such
right of reversion to the lien of such mortgage or other encumbrance.
(b) Continuing State programs. Every application by a State or a
State agency to carry out a program involving continuing Federal
financial assistance to which this part applies (including the programs
listed in appendix A to this part) shall as a condition to its approval
and the extension of any Federal financial assistance pursuant to the
application: (1) Contain or be accompanied by a statement that the
program is (or, in the case of a new program, will be) conducted in
compliance with all requirements imposed by or pursuant to this part,
and (2) provide or be accompanied by provision for such methods of
administration for the program as are found by the Secretary to give
reasonable guarantee that the applicant and all recipients of Federal
financial assistance under such program will comply with all
requirements imposed by or pursuant to this part.
Sec. 21.9 Compliance information.
(a) Cooperation and assistance. The Secretary shall to the fullest
extent practicable seek the cooperation of recipients in obtaining
compliance with this part and shall provide assistance and guidance to
recipients to help them comply voluntarily with this part.
(b) Compliance reports. Each recipient shall keep such records and
submit to the Secretary timely, complete, and accurate compliance
reports at such times, and in such form and containing such information,
as the Secretary may determine to be necessary to enable him to
ascertain whether the recipient has complied or is complying with this
part. In the case 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 part. In general recipients should have
available for the Secretary racial and ethnic data showing the extent to
which members of minority groups are beneficiaries of programs receiving
Federal financial assistance.
(c) Access to sources of information. Each recipient shall permit
access by the Secretary during normal business
[[Page 188]]
hours to such of its books, records, accounts, and other sources of
information, and its facilities as may be pertinent to ascertain
compliance with this part. Where any information required of a recipient
is in the exclusive possession of any other agency, institution, or
person and this agency, institution, or person fails or refuses to
furnish this information, the recipient shall so certify in its report
and shall set forth what efforts it has made to obtain the information.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons such information regarding the provisions of this
part and its applicability to the program under which the recipient
receives Federal financial assistance, and make such information
available to them in such manner, as the Secretary finds necessary to
apprise such persons of the protections against discrimination assured
them by the Act and this part.
[35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997, July
5, 1973]
Sec. 21.11 Conduct of investigations.
(a) Periodic compliance reviews. The Secretary shall from time to
time review the practices of recipients to determine whether they are
complying with this part.
(b) Complaints. Any person who believes himself or any specific
class of persons to be subjected to discrimination prohibited by this
part may by himself or by a representative file with the Secretary a
written complaint. A complaint must be filed not later than 180 days
after the date of the alleged discrimination, unless the time for filing
is extended by the Secretary.
(c) Investigations. The Secretary will make a prompt investigation
whenever a compliance review, report, complaint, or any other
information indicates a possible failure to comply with this part. The
investigation will include, where appropriate, a review of the pertinent
practices and policies of the recipient, the circumstances under which
the possible noncompliance with this part occurred, and other factors
relevant to a determination as to whether the recipient has failed to
comply with this part.
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
part, the Secretary will so inform the recipient and the matter will be
resolved by informal means whenever possible. If it has been determined
that the matter cannot be resolved by informal means, action will be
taken as provided for in Sec. 21.13.
(2) If an investigation does not warrant action pursuant to
paragraph (d)(1) of this section the Secretary will so inform the
recipient and the complainant, if any, in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or
other person shall intimidate, threaten, coerce, or discriminate against
any individual for the purpose of interfering with any right or
privilege secured by section 601 of the Act or this part, or because he
has made a complaint, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this part. The
identity of complainants shall be kept confidential except to the extent
necessary to carry out the purposes of this part, including the conduct
of any investigation, hearing, or judicial proceeding arising
thereunder.
[35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997, July
5, 1973]
Sec. 21.13 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this part, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part may be effected by the suspension or termination of or refusal
to grant or to continue Federal financial assistance or by any other
means authorized by law. Such other means may include, but are not
limited to: (1) A 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,
[[Page 189]]
and (2) any applicable proceeding under State or local law.
(b) Noncompliance with Sec. 21.7. If an applicant fails or refuses
to furnish an assurance required under Sec. 21.7 or otherwise fails or
refuses to comply with a requirement imposed by or pursuant to that
section, Federal financial assistance may be refused in accordance with
the procedures of paragraph (c) of this section. The Department shall
not be required to provide assistance in such a case during the pendency
of the administrative proceedings under such paragraph. However, subject
to Sec. 21.21, the Department shall continue assistance during the
pendency of such proceedings where such assistance is due and payable
pursuant to an application approved prior to the effective date of this
part.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. No order suspending, terminating, or refusing to
grant or continue Federal financial assistance shall become effective
until:
(1) The Secretary 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 part;
(3) The action has been approved by the Secretary pursuant to
Sec. 21.17(e); and
(4) The expiration of 30 days after the Secretary has filed with the
committee of the House and the committee of the Senate having
legislative jurisdiction over the program involved, a full written
report of the circumstances and the grounds for such action.
Any action to suspend or terminate or to refuse to grant or to continue
Federal financial assistance shall be limited to the particular
political entity, or part thereof, or other applicant or recipient as to
whom such a finding has been made and shall be limited in its effect to
the particular program, or part thereof, in which such noncompliance has
been so found.
(d) Other means authorized by law. No action to effect compliance
with title VI of the Act by any other means authorized by law shall be
taken by this Department until:
(1) The Secretary has determined that compliance cannot be secured
by voluntary means;
(2) The recipient or other person has been notified of its failure
to comply and of the action to be taken to effect compliance; and
(3) The expiration of at least 10 days from the mailing of such
notice to the recipient or other person. During this period of at least
10 days, additional efforts shall be made to persuade the recipient or
other person to comply with the regulation and to take such corrective
action as may be appropriate.
Sec. 21.15 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by Sec. 21.13(c), reasonable notice shall be given by
registered or certified mail, return receipt requested, to the affected
applicant or recipient. This notice shall advise the applicant or
recipient of the action proposed to be taken, the specific provision
under which the proposed action against it is to be taken, and the
matters of fact or law asserted as the basis for this action, and
either: (1) Fix a date not less than 20 days after the date of such
notice within which the applicant or recipient may request of the
Secretary that the matter be scheduled for hearing or (2) advise the
applicant or recipient that the matter in question has been set down for
hearing at a stated place and time. The time and place so fixed shall be
reasonable and shall be subject to change for cause. The complainant, if
any, shall be advised of the time and place of the hearing. An applicant
or recipient may waive a hearing and submit written information and
argument for the record. The failure of an applicant or recipient to
request a hearing under this paragraph or to appear at a hearing for
which a date has been set shall be deemed to be a waiver of the right to
a hearing under section 602 of the Act and Sec. 21.13(c) and consent to
the making of a decision on the basis of such information as is
available.
(b) Time and place of hearing. Hearings shall be held at the offices
of the Department in Washington, D.C., at a
[[Page 190]]
time fixed by the Secretary unless he determines that the convenience of
the applicant or recipient or of the Department requires that another
place be selected. Hearings shall be held before the Secretary, or at
his discretion, before a hearing examiner appointed in accordance with
section 3105 of title 5, United States Code, or detailed under section
3344 of title 5, United States Code.
(c) Right to counsel. In all proceedings under this section, the
applicant or recipient and the Department shall have the right to be
represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and
any administrative review thereof shall be conducted in conformity with
sections 554 through 557 of title 5, United States Code, and in
accordance with such rules of procedure as are proper (and not
inconsistent with this section) relating to the conduct of the hearing,
giving of notices subsequent to those provided for in paragraph (a) of
this section, taking of testimony, exhibits, arguments and briefs,
requests for findings, and other related matters. Both the Department
and the applicant or recipient shall be entitled to introduce all
relevant evidence on the issues as stated in the notice for hearing or
as determined by the officer conducting the hearing at the outset of or
during the hearing.
(2) Technical rules of evidence do not apply to hearings conducted
pursuant to this part, but rules or principles designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary by the officer conducting the hearing. The hearing officer may
exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for the record shall be
open to examination by the parties and opportunity shall be given to
refute facts and arguments advanced on either side of the issues. A
transcript shall be made of the oral evidence except to the extent the
substance thereof is stipulated for the record. All decisions shall be
based upon the hearing record and written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more 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
Secretary may, by agreement with such other departments or agencies,
where applicable, provide for the conduct of consolidated or joint
hearings, and for the application to such hearings of rules or
procedures not inconsistent with this part. Final decisions in such
cases, insofar as this regulation is concerned, shall be made in
accordance with Sec. 21.17.
Sec. 21.17 Decisions and notices.
(a) Procedure on decisions by hearing examiner. If the hearing is
held by a hearing examiner, the hearing examiner shall either make an
initial decision, if so authorized, or certify the entire record
including his recommended findings and proposed decision to the
Secretary for a final decision, and a copy of such initial decision or
certification shall be mailed to the applicant or recipient. Where the
initial decision is made by the hearing examiner the applicant or
recipient may, within 30 days after the mailing of such notice of
initial decision, file with the Secretary his exceptions to the initial
decision, with his reasons therefor. In the absence of exceptions, the
Secretary may, on his own motion, within 45 days after the initial
decision, serve on the applicant or recipient a notice that he will
review the decision. Upon the filing of such exceptions or of notice of
review, the Secretary shall review the initial decision and issue his
own decision thereon including the reasons therefor. In the absence of
either exceptions or a notice of review the initial decision shall,
subject to paragraph (e) of this section, constitute the final decision
of the Secretary.
(b) Decisions on record or review by the Secretary. Whenever a
record is certified to the Secretary for decision or he reviews the
decision of a hearing examiner pursuant to paragraph (a) of this
section, or whenever the Secretary conducts the hearing, the applicant
or
[[Page 191]]
recipient shall be given reasonable opportunity to file with him briefs
or other written statements of its contentions, and a written copy of
the final decision of the Secretary shall be sent to the applicant or
recipient and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to Sec. 21.15, a decision shall be made by
the Secretary on the record and a written copy of such decision shall be
sent to the applicant or recipient, and to the complainant, if any.
(d) Rulings required. Each decision of a hearing examiner or the
Secretary shall set forth his ruling on each finding, conclusion, or
exception presented, and shall identify the requirement or requirements
imposed by or pursuant to this part with which it is found that the
applicant or recipient has failed to comply.
(e) Approval by Secretary. Any final decision by an official of the
Department, other than the Secretary personally, which provides for the
suspension or termination of, or the refusal to grant or continue
Federal financial assistance, or the imposition of any other sanction
available under this part or the Act, shall promptly be transmitted to
the Secretary personally, who may approve such decision, may vacate it,
or remit or mitigate any sanction imposed.
(f) Content of orders. The final decision may provide for suspension
or termination of, or refusal to grant or continue Federal financial
assistance, in whole or in part, 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 programs to the
applicant or recipient determined by such decision to be in default in
its performance of an assurance given by it pursuant to this part, or to
have otherwise failed to comply with this part, unless and until it
corrects its noncompliance and satisfies the Secretary that it will
fully comply with this part.
(g) Post termination proceedings. (1) An applicant or recipient
adversely affected by an order issued under paragraph (f) of this
section shall be restored to full eligibility to receive Federal
financial assistance if it satisfies the terms and conditions of that
order for such eligibility or if it brings itself into compliance with
this part and provides reasonable assurance that it will fully comply
with this part.
(2) Any applicant or recipient adversely affected by an order
entered pursuant to paragraph (f) of this section may at any time
request the Secretary to restore fully its eligibility to receive
Federal financial assistance. Any such request shall be supported by
information showing that the applicant or recipient has met the
requirements of paragraph (g)(1) of this section. If the Secretary
determines that those requirements have been satisfied, he shall restore
such eligibility.
(3) If the Secretary denies any such request, the applicant or
recipient may submit a request for a hearing in writing, specifying who
it believes such official to have been in error. It shall thereupon be
given an expeditious hearing, with a decision on the record in
accordance with rules or procedures issued by the Secretary. The
applicant or recipient will be restored to such eligibility if it proves
at such a hearing that it satisfied the requirements of paragraph (g)(1)
of this section.
While proceedings under this paragraph are pending, the sanctions
imposed by the order issued under paragraph (f) of this section shall
remain in effect.
Sec. 21.19 Judicial review.
Action taken pursuant to section 602 of the Act is subject to
judicial review as provided in section 603 of the Act.
Sec. 21.21 Effect on other regulations, forms, and instructions.
(a) Effect on other regulations. All regulations, orders, or like
directions issued before the effective date of this part by any officer
of the Department which impose requirements designed to prohibit any
discrimination against individuals on the grounds of race, color, or
national origin under any program to which this part applies, and which
authorize the suspension or termination of or refusal to grant or to
continue Federal financial assistance to
[[Page 192]]
any applicant for a 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 may be considered to relieve any person of any
obligation assumed or imposed under any such superseded regulation,
order, instruction, or like direction before the effective date of this
part. Nothing in this part, however, supersedes any of the following
(including future amendments thereof): (1) Executive Order 11246 (3 CFR,
1965 Supp., p. 167) and regulations issued thereunder or (2) any other
orders, regulations, or instructions, insofar as such orders,
regulations, or instructions prohibit discrimination on the ground of
race, color, or national origin in any program or situation to which
this part is inapplicable, or prohibit discrimination on any other
ground.
(b) Forms and instructions. The Secretary shall issue and promptly
make available to all interested persons forms and detailed instructions
and procedures for effectuating this part as applied to programs to
which this part applies and for which he is responsible.
(c) Supervision and coordination. The Secretary may from time to
time assign to officials of the Department, or to officials of other
departments or agencies of the Government with the consent of such
departments or agencies, responsibilities in connection with the
effectuation of the purposes of title VI of the Act and this part (other
than responsibility for final decision as provided in Sec. 21.17),
including the achievement of effective coordination and maximum
uniformity within the Department and within the Executive Branch of the
Government in the application of title VI and this part to similar
programs and in similar situations. Any action taken, determination made
or requirement imposed by an official of another department or agency
acting pursuant to an assignment of responsibility under this paragraph
shall have the same effect as though such action had been taken by the
Secretary of this Department.
Sec. 21.23 Definitions.
Unless the context requires otherwise, as used in this part:
(a) Applicant means a person who submits an application, request, or
plan required to be approved by the Secretary, or by a primary
recipient, as a condition to eligibility for Federal financial
assistance, and ``application'' means such an application, request, or
plan.
(b) Facility includes all or any part of structures, equipment, or
other real or personal property or interests therein, and the provision
of facilities includes the construction, expansion, renovation,
remodeling, alteration or acquisition of facilities.
(c) Federal financial assistance includes:
(1) Grants and loans of Federal funds;
(2) The grant or donation of Federal property and interests in
property;
(3) The detail of Federal personnel;
(4) The sale and lease of, and the permission to use (on other than
a casual or transient basis), Federal property or any interest in such
property without consideration or at a nominal consideration, or at a
consideration which is reduced for the purpose of assisting the
recipient, or in recognition of the public interest to be served by such
sale or lease to the recipient; and
(5) Any Federal agreement, arrangement, or other contract which has
as one of its purposes the provision of assistance.
(d) Primary recipient means any recipient that is authorized or
required to extend Federal financial assistance to another recipient for
the purpose of carrying out a program.
(e) 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), or for the provision of facilities for furnishing
services, financial aid or other benefits to individuals. The services,
financial aid, or
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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) Recipient may mean any State, territory, possession, the
District of Columbia, or Puerto Rico, or any political subdivision
thereof, or instrumentality thereof, any public or private agency,
institution, or organization, or other entity, or any individual, in any
State, territory, possession, the District of Columbia, or Puerto Rico,
to whom Federal financial assistance is extended, directly or through
another recipient, for any program, including any successor, assignee,
or transferee thereof, but such term does not include any ultimate
beneficiary under any such program.
(g) Secretary means the Secretary of Transportation or, except in
Sec. 21.17 (e), any person to whom he has delegated his authority in the
matter concerned.
Appendix A to Part 21--Activities to which This Part Applies
1. Use of grants made in connection with Federal-aid highway systems
(23 U.S.C. 101 et seq.).
2. Use of grants made in connection with the Highway Safety Act of
1966 (23 U.S.C. 401 et seq.).
3. Use of grants in connection with the National Traffic and Motor
Vehicle Safety Act of 1966 (15 U.S.C. 1391-1409, 1421-1425).
4. Lease of real property and the grant of permits, licenses,
easements and rights-of-way covering real property under control of the
Coast Guard (14 U.S.C. 93 (n) and (o)).
5. Utilization of Coast Guard personnel and facilities by any State,
territory, possession, or political subdivision thereof (14 U.S.C.
141(a)).
6. Use of Coast Guard personnel for duty in connection with maritime
instruction and training by the States, territories, and Puerto Rico (14
U.S.C. 148).
7. Use of obsolete and other Coast Guard material by sea scout
service of Boy Scouts of America, any incorporated unit of the Coast
Guard auxiliary, and public body or private organization not organized
for profit (14 U.S.C. 641(a)).
8. U.S. Coast Guard Auxiliary Program (14 U.S.C. 821-832).
9. Use of grants for the support of basic scientific research by
nonprofit institutions of higher education and nonprofit organizations
whose primary purpose is conduct of scientific research (42 U.S.C.
1891).
10. Use of grants made in connection with the Federal-aid Airport
Program (secs. 1-15 and 17-20 of the Federal Airport Act, 49 U.S.C.
1101-1114, 1116-1120).
11. Use of U.S. land acquired for public airports under:
a. Section 16 of the Federal Airport Act, 49 U.S.C. 1115; and
b. Surplus Property Act (sec. 13(g) of the Surplus Property Act of
1944, 50 U.S.C. App. 1622(g), and sec. 3 of the Act of Oct. 1, 1949, 50
U.S.C. App. 1622b).
12. Activities carried out in connection with the Aviation Education
Program of the Federal Aviation Administration under sections 305, 311,
and 313(a) of the Federal Aviation Act of 1958, as amended (49 U.S.C.
1346, 1352, and 1354(a)).
13. Use of grants and loans made in connection with Urban Mass
Transportation Capital Facilities Grant and Loan Program--Urban Mass
Transportation Act of 1964, as amended (49 U.S.C. 1602).
14. Use of grants made in connection with Urban Mass Transportation
Research and Demonstration Grant Program--Urban Mass Transportation Act
of 1964, as amended (49 U.S.C. 1605).
15. Use of grants made in connection with Urban Mass Transportation
Technical Studies Grant Program--Urban Mass Transportation Act of 1964,
as amended (49 U.S.C. 1607a).
16. Use of grants made in connection with Urban Mass Transportation
Managerial Training Grant Program--Urban Mass Transportation Act of
1964, as amended (49 U.S.C. 1607b).
17. Use of grants made in connection with Urban Mass Transportation
Grants for Research and Training Programs in Institutions of Higher
Learning--Urban Mass Transportation Act of 1964, as amended (49 U.S.C.
1607c).
18. Use of grants made in connection with the High Speed Ground
Transportation Act, as amended (49 U.S.C. 631-642).
[[Page 194]]
Appendix B to Part 21--Activities to Which This Part Applies When a
Primary Objective of the Federal Financial Assistance is to Provide
Employment
1. Appalachia Regional Development Act of 1965 (40 U.S.C. App. 1 et
seq.).
Appendix C to Part 21--Application of Part 21 to Certain Federal
Financial Assistance of the Department of Transportation
Nondiscrimination on Federally Assisted Projects
(a) Examples. The following examples, without being exhaustive,
illustrate the application of the nondiscrimination provisions of this
part on projects receiving Federal financial assistance under the
programs of certain Department of Transportation operating
administrations:
(1) Federal Aviation Administration. (i) The airport sponsor or any
of his lessees, concessionaires, or contractors may not differentiate
between members of the public because of race, color, or national origin
in furnishing, or admitting to, waiting rooms, passenger holding areas,
aircraft tiedown areas, restaurant facilities, restrooms, or facilities
operated under the compatible land use concept.
(ii) The airport sponsor and any of his lessees, concessionaires, or
contractors must offer to all members of the public the same degree and
type of service without regard to race, color, or national origin. This
rule applies to fixed base operators, restaurants, snack bars, gift
shops, ticket counters, baggage handlers, car rental agencies,
limousines and taxis franchised by the airport sponsor, insurance
underwriters, and other businesses catering to the public at the
airport.
(iii) An aircraft operator may not be required to park his aircraft
at a location that is less protected, or less accessible from the
terminal facilities, than locations offered to others, because of his
race, color, or national origin.
(iv) The pilot of an aircraft may not be required to help more
extensively in fueling operations, and may not be offered less
incidental service (such as windshield wiping), than other pilots,
because of his race, color, or national origin.
(v) No pilot or crewmember eligible for access to a pilot's lounge
or to unofficial communication facilities such as a UNICOM frequency may
be restricted in that access because of his race, color, or national
origin.
(vi) Access to facilities maintained at the airport by air carriers
or commercial operators for holders of first-class transportation
tickets or frequent users of the carrier's or operator's services may
not be restricted on the basis of race, color, or national origin.
(vii) Passengers and crewmembers seeking ground transportation from
the airport may not be assigned to different vehicles, or delayed or
embarrassed in assignment to vehicles, by the airport sponsor or his
lessees, concessionaires, or contractors, because of race, color, or
national origin.
(viii) Where there are two or more sites having equal potential to
serve the aeronautical needs of the area, the airport sponsor shall
select the site least likely to adversely affect existing communities.
Such site selection shall not be made on the basis of race, color, or
national origin.
(ix) Employment at obligated airports, including employment by
tenants and concessionaires shall be available to all regardless of
race, creed, color, sex, or national origin. The sponsor shall
coordinate his airport plan with his local transit authority and the
Urban Mass Transportation Administration to assure public
transportation, convenient to the disadvantaged areas of nearby
communities to enhance employment opportunities for the disadvantaged
and minority population.
(x) The sponsor shall assure that the minority business community in
his area is advised of the opportunities offered by airport concessions,
and that bids are solicited from such qualified minority firms, and
awards made without regard to race, color, or national origin.
(2) Federal Highway Administration. (i) The State, acting through
its highway department, may not discriminate in its selection and
retention of contractors, including without limitation, those whose
services are retained for, or incidental to, construction, planning,
research, highway safety, engineering, property management, and fee
contracts and other commitments with person for services and expenses
incidental to the acquisition of right-of-way.
(ii) The State may not discriminate against eligible persons in
making relocation payments and in providing relocation advisory
assistance where relocation is necessitated by highway right-of-way
acquisitions.
(iii) Federal-aid contractors may not discriminate in their
selection and retention of first-tier subcontractors, and first-tier
subcontractors may not discriminate in their selection and retention of
second-tier subcontractors, who participate in Federal-aid highway
construction, acquisition of right-of-way and related projects,
including those who supply materials and lease equipment.
(iv) The State may not discriminate against the traveling public and
business users of the federally assisted highway in their access to and
use of the facilities and services provided for public accommodations
(such as eating, sleeping, rest, recreation,
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and vehicle servicing) constructed on, over or under the right-of-way of
such highways.
(v) Neither the State, any other persons subject to this part, nor
its contractors and subcontractors may discriminate in their employment
practices in connection with highway construction projects or other
projects assisted by the Federal Highway Administration.
(vi) The State shall not locate or design a highway in such a manner
as to require, on the basis of race, color, or national origin, the
relocation of any persons.
(vii) The State shall not locate, design, or construct a highway in
such a manner as to deny reasonable access to, and use thereof, to any
persons on the basis of race, color, or national origin.
(3) Urban Mass Transportation Administration. (i) Any person who is,
or seeks to be, a patron of any public vehicle which is operated as a
part of, or in conjunction with, a project shall be given the same
access, seating, and other treatment with regard to the use of such
vehicle as other persons without regard to their race, color, or
national origin.
(ii) No person who is, or seeks to be, an employee of the project
sponsor or lessees, concessionaires, contractors, licensees, or any
organization furnishing public transportation service as a part of, or
in conjunction with, the project shall be treated less favorably than
any other employee or applicant with regard to hiring, dismissal,
advancement, wages, or any other conditions and benefits of employment,
on the basis of race, color, or national origin.
(iii) No person or group of persons shall be discriminated against
with regard to the routing, scheduling, or quality of service of
transportation service furnished as a part of the project on the basis
of race, color, or national origin. Frequency of service, age and
quality of vehicles assigned to routes, quality of stations serving
different routes, and location of routes may not be determined on the
basis of race, color, or national origin.
(iv) The location of projects requiring land acquisition and the
displacement of persons from their residences and businesses may not be
determined on the basis of race, color, or national origin.
(b) Obligations of the airport operator-- (1) Tenants, contractors,
and concessionaires. Each airport operator shall require each tenant,
contractor, and concessionaire who provides any activity, service, or
facility at the airport under lease, contract with, or franchise from
the airport, to covenant in a form specified by the Administrator,
Federal Aviation Administration, that he will comply with the
nondiscrimination requirements of this part.
(2) Notification of beneficiaries. The airport operator shall: (i)
Make a copy of this part available at his office for inspection during
normal working hours by any person asking for it, and (ii) conspicuously
display a sign, or signs, furnished by the FAA, in the main public area
or areas of the airport, stating that discrimination based on race,
color, or national origin is prohibited on the airport.
(3) Reports. Each airport owner subject to this part shall, within
15 days after he receives it, forward to the Area Manager of the FAA
Area in which the airport is located a copy of each written complaint
charging discrimination because of race, color, or national origin by
any person subject to this part, together with a statement describing
all actions taken to resolve the matter, and the results thereof. Each
airport operator shall submit to the area manager of the FAA area in
which the airport is located a report for the preceding year on the date
and in a form prescribed by the Federal Aviation Administrator.
[35 FR 10080, June 18, 1970, as amended by Amdt. 21-1, 38 FR 5875, Mar.
5, 1973; Amdt. 21-3, 40 FR 14318, Mar. 31, 1975]
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