Federal Coordination And Compliance Section

 [Code of Federal Regulations] [Title 44, Volume 1] [Revised as of October 1, 2002] From the U.S. Government Printing Office via GPO Access [CITE: 44CFR7]  [Page 64-79]                 TITLE 44--EMERGENCY MANAGEMENT AND ASSISTANCE                CHAPTER I--FEDERAL EMERGENCY MANAGEMENT AGENCY   PART 7--NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS (FEMA REG. 5)           Subpart A--Nondiscrimination in FEMA Programs--General  Sec. 7.1  Purpose. 7.2  Definitions. 7.3  Application of this regulation. 7.4  Further application of this regulation. 7.5  Specific discriminatory actions prohibited. 7.6  Life, health, and safety. 7.7  Assurances required. 7.8  Elementary and secondary schools. 7.9  Assurances from institutions. 7.10  Compliance information. 7.11  Conduct of investigations. 7.12  Procedure for effecting compliance. 7.13  Hearings. 7.14  Decisions and notices. 7.15  Judicial review. 7.16  Effect on other regulations; forms and instructions.  Subparts B-D [Reserved]      Subpart E--Nondiscrimination on the Basis of Age in FEMA Program              Activities Receiving Federal Financial Assistance                                   General  7.910  What is the purpose of the Age Discrimination Act of 1975? 7.911  What is the purpose of FEMA's age discrimination regulation? 7.912  To what programs does this regulation apply? 7.913  Definition of terms used in this regulation.                Standards for Determining Age Discrimination  7.920  Rules against age discrimination. 7.921  Exceptions to the rules against age discrimination: Normal            operation or statutory objective of any program or activity. 7.922  Exceptions to the rules against age discrimination: Reasonable            factors other than age. 7.923  Burden of proof for exceptions. 7.924  Affirmative action by recipient. 7.925  Special benefits for children and the elderly. 7.926  Age distinctions contained in FEMA regulations.  [[Page 65]]                          Duties of FEMA Recipients  7.930  General responsibilities. 7.931  Notice to subrecipients and beneficiaries. 7.932  Assurance of compliance and recipient assessment of age            distinctions. 7.933  Information requirement.           Investigation, Conciliation, and Enforcement Procedures  7.940  Compliance reviews. 7.941  Complaints. 7.942  Mediation. 7.943  Investigation. 7.944  Prohibition against intimidation or retaliation. 7.945  Compliance procedure. 7.946  Hearings, decisions, post-termination proceedings. 7.947  Remedial action by recipient. 7.948  Alternate funds disbursal procedure. 7.949  Exhaustion of administrative remedies.      Source: 30 FR 321, Jan. 9, 1965, unless otherwise noted.  Redesignated at 45 FR 44575, July 1, 1980.           Subpart A--Nondiscrimination in FEMA Programs--General      Authority: FEMA Reg. 5 issued under sec. 602, 78 Stat. 252; 42  U.S.C. 2000 d-1; 42 U.S.C. 1855-1885g; 50 U.S.C. 404.      Source: 30 FR 321, Jan. 9, 1965, unless otherwise noted.  Redesignated at 45 FR 44575, July 1, 1980, and further redesignated at  55 FR 23078, June 6, 1990.  Sec. 7.1  Purpose.      The purpose of this regulation is to effectuate the provisions of  title VI of the Civil Rights Act of 1964 (hereafter referred to as the  ``Act'') to the end that no person in the United States shall, on the  ground of race, color, or national origin, be excluded from  participation in, be denied the benefits of, or be otherwise subjected  to discrimination under any program or activity receiving Federal  financial assistance from the Federal Emergency Management Agency.  Sec. 7.2  Definitions.      As used in this regulation:     (a) The term responsible agency official with respect to any program  receiving Federal financial assistance means the Director of the Federal  Emergency Management Agency or other official of the agency who by law  or by delegation has the principal responsibility within the agency for  the administration of the law extending such assistance.     (b) The term United States means the States of the United States,  the District of Columbia, Puerto Rico, the Virgin Islands, American  Samoa, Guam, Wake Island, the Canal Zone, and the territories and  possessions of the United States, and the term State means any one of  the foregoing.     (c) The term Federal financial assistance includes (1) grants and  loans of Federal funds, (2) the grant or donation of Federal property  and interests in property, (3) the detail of Federal personnel, (4) the  sale and lease of, and the permission to use (on other than a casual or  transient basis), Federal property or any interest in such property  without consideration or at a nominal consideration, or at a  consideration which is reduced for the purpose of assisting the  recipient, or in recognition of the public interest to be served by such  sale or lease to the recipient, and (5) any Federal agreement,  arrangement, or other contract which has as one of its purposes the  provision of assistance.     (d) The term program includes any program, project, or activity for  the provision of services, financial aid, or other benefits to  individuals (including education or training, health, welfare,  rehabilitation, housing, or other services, whether provided through  employees of the recipient of Federal financial assistance or provided  by others through contracts or other arrangements with the recipient,  and including work opportunities and cash or loan or other assistance to  individuals), or for the provision of facilities for furnishing  services, financial aid or other benefits to individuals. The services,  financial aid, or other benefits provided under a program receiving  Federal financial assistance shall be deemed to include any services,  financial aid, or other benefits provided with the aid of Federal  financial assistance or with the aid of any non-Federal funds, property,  or other resources required to be expended or made available for the  program to meet matching requirements or other conditions which must be  met  [[Page 66]]  in order to receive the Federal financial assistance, and to include any  services, financial aid, or other benefits provided in or through a  facility provided with the aid of Federal financial assistance or such  non-Federal resources.     (e) The term facility includes all or any portion of structure,  equipment, or other real or personal property or interests therein, and  the provision of facilities includes the construction, expansion,  renovation, remodeling, alteration or acquisition of facilities.     (f) The term recipient means any State, political subdivision of any  State, or instrumentality of any State or political subdivision, any  public or private agency, institution, or organization, or other entity,  or any individual, in any State, to whom Federal financial assistance is  extended, directly or through another recipient, for any program,  including any successor, assign, or transferee thereof, but such term  does not include any ultimate beneficiary under any such program.     (g) The term primary recipient means any recipient which is  authorized or required to extend Federal financial assistance to another  recipient for the purpose of carrying out a program.     (h) The term applicant means one who submits an application,  request, or plan required to be approved by a responsible agency  official, or by a primary recipient, as a condition to eligibility for  Federal financial assistance, and the term application means such an  application, request, or plan.  Sec. 7.3  Application of this regulation.      No person in the United States shall, on the ground of race, color,  or national origin, be excluded from participation in, be denied the  benefits of, or be otherwise subjected to discrimination by those  receiving assistance under the ``Federal Disaster Assistance'' program  (Pub. L. 81-875; 42 U.S.C. 1855-1855g), or under the ``Interim Emergency  Management of Resources'' program (section 103 of the National Security  Act of 1947; Pub. L. 80-253, as amended; 50 U.S.C. 404).  Sec. 7.4  Further application of this regulation.      This regulation applies to any program for which Federal financial  assistance is authorized under a law administered by the Federal  Emergency Management Agency. It applies to money paid, property  transferred, or other Federal financial assistance extended under any  such program after the effective date of the regulation pursuant to an  application approved prior to such effective date. This regulation does  not apply to (a) any Federal financial assistance by way of insurance or  guaranty contracts, (b) money paid, property transferred, or other  assistance extended under any such program before the effective date of  this regulation, (c) any assistance to any individual who is the  ultimate beneficiary under any such program, or (d) any employment  practice, under such program, of any employer, employment agency, or  labor organization.  (Reorganization Plan No. 3 of 1978, E.O. 12127 and E.O. 12148)  [30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, as  amended at 48 FR 44543, Sept. 29, 1983]  Sec. 7.5  Specific discriminatory actions prohibited.      (a) A recipient under any program to which this regulation applies  may not, directly or through contractual or other arrangements, on  ground of race, color, or national origin:     (1) Deny any individual any service, financial aid, or other benefit  provided under the program;     (2) Provide any service, financial aid, or other benefit to an  individual which is different, or is provided in a different manner,  from that provided to others under the program;     (3) Subject an individual to segregation or separate treatment in  any matter related to his receipt of any service, financial aid, or  other benefit under the program;     (4) Restrict an individual in any way in the enjoyment of any  advantage or privilege enjoyed by others receiving any service,  financial aid, or other benefit under the program;  [[Page 67]]      (5) Treat an individual differently from others in determining  whether he satisfies any admission, enrollment, quota, eligibility,  membership or other requirement or condition which individuals must meet  in order to be provided any service, financial aid, or other benefit  provided under the program;     (6) Deny an individual an opportunity to participate in the program  through the provision of services or otherwise or afford him an  opportunity to do so which is different from that afforded others under  the program.     (b) A recipient, in determining the types of services, financial  aid, or other benefits, or facilities which will be provided under any  such program, or the class of individuals to whom, or the situations in  which, such services, financial aid, other benefits, or facilities will  be provided under any such program, or the class of individuals to be  afforded an opportunity to participate in any such program, may not,  directly or through contractual or other arrangements, utilize criteria  or methods of administration which have the effect of subjecting  individuals to discrimination because of their race, color, or national  origin, or have the effect of defeating or substantially impairing  accomplishment of the objectives of the program as respect individuals  of a particular race, color, or national origin.     (c) As used in this section the services, financial aid, or other  benefits provided under a program receiving Federal financial assistance  shall be deemed to include any service, financial aid, or other benefit  provided in or through a facility provided with the aid of Federal  financial assistance.     (d) The enumeration of specific forms of prohibited discrimination  in this section does not limit the generality of the prohibition in  section 4.  Sec. 7.6  Life, health, and safety.      Notwithstanding the provisions of section 5, a recipient of Federal  financial assistance shall not be deemed to have failed to comply with  section 3, if immediate provision of a service or other benefit to an  individual is necessary to prevent his death or serious impairment of  his health or safety.  Sec. 7.7  Assurances required.      Every application for Federal financial assistance to carry out a  program to which this regulation applies, and every application for  Federal financial assistance to provide a facility shall, as a condition  to its approval and the extension of any Federal financial assistance  pursuant to the application, contain or be accompanied by an assurance  that the program will be conducted or the facility operated in  compliance with all requirements imposed by or pursuant to this  regulation. In the case of an application for Federal financial  assistance to provide real property or structures thereon, the assurance  shall obligate the recipient, or, in the case of a subsequent transfer,  the transferee, for the period during which the real property or  structures are used for a purpose for which the Federal financial  assistance is extended or for another purpose involving the provision of  similar services or benefits. In the case of personal property the  assurance shall obligate the recipient for the period during which he  retains ownership or possession of the property. In all other cases the  assurance shall obligate the recipient for the period during which  Federal financial assistance is extended pursuant to the application.  The responsible agency official shall specify the form of the foregoing  assurances for each program, and the extent to which like assurances  will be required of subgrantee, contractors and subcontractors,  transferees, successors in interest, and other participants in the  program. Any such assurance shall include provisions which give the  United States a right to seek its judicial enforcement.  Sec. 7.8  Elementary and secondary schools.      The requirements of section 7 with respect to any elementary or  secondary school or school system shall be deemed to be satisfied if  such school or school system (a) is subject to a final order of a court  of the United States for the desegregation of such school or school  system, and provides an assurance that it will comply with such order,  including any future modification of such order, or (b) submits a plan  for the desegregation of such school or  [[Page 68]]  school system which the United States Commissioner of Education  determines is adequate to accomplish the purpose of the Act and this  regulation, and provides reasonable assurance that it will carry out  such plans; in any case of continuing Federal financial assistance the  responsible agency official may reserve the right to redetermine, after  such period as may be specified by him, the adequacy of the plan to  accomplish the purposes of the Act and this regulation. In any case to  which a final order of a court of the United States for the  desegregation of such school or school system is entered after  submission of such a plan, such plan shall be revised to conform to such  final order, including any future modification of such order.  Sec. 7.9  Assurances from institutions.      (a) In the case of any application for Federal financial assistance  to an institution of higher education, the assurance required by section  7 shall extend to admission practices and to all other practices  relating to the treatment of students.     (b) The assurances required with respect to an institution of higher  education, hospital, or any other institution, insofar as the assurance  relates to the institution's practices with respect to admission or  other treatment of individuals as students, patients, or clients of the  institutions or to the opportunity to participate in the provision of  services or other benefits to such individuals, shall be applicable to  the entire institution unless the applicant establishes, to the  satisfaction of the Director of the Federal Emergency Management Agency  that the institution's practices in designated parts or programs of the  institution will in no way affect its practices in the program of the  institution for which Federal financial assistance is sought, or the  beneficiaries of or participants in such program. If in any such case  the assistance sought is for the construction of a facility or part of a  facility, the assurance shall in any event extend to the entire facility  and to facilities operated in connection therewith.  Sec. 7.10  Compliance information.      (a) Cooperation and assistance. The responsible official in the  Federal Emergency Management Agency shall to the fullest extent  practicable seek the cooperation of recipients in obtaining compliance  with this regulation and shall provide assistance and guidance to  recipients to help them comply voluntarily with this regulation.     (b) Compliance reports. Each recipient shall keep such records and  submit to the responsible agency official or his designee timely,  complete, and accurate compliance reports at such times, and in such  form and containing such information, as the responsible agency official  or his designee may determine to be necessary to enable him to ascertain  whether the recipient has complied or is complying with this regulation.  In the case of any program under which a primary recipient extends  Federal financial assistance to any other recipient, such other  recipient shall also submit such compliance reports to the primary  recipient as may be necessary to enable the primary recipient to carry  out its obligations under this regulation.     (c) Access to sources of information. Each recipient shall permit  access by the responsible agency official or his designee during normal  business hours to such of its books, records, accounts, and other  sources of information, and its facilities as may be pertinent to  ascertain compliance with this regulation. Where any information  required of a recipient is in the exclusive possession of any other  agency, institution or person and this agency, institution or person  shall fail or refuse to furnish this information, the recipient shall so  certify in its report and shall set forth what efforts it has made to  obtain the information.     (d) Information to beneficiaries and participants. Each recipient  shall make available to participants, beneficiaries, and other  interested persons such information regarding the provisions of this  regulation and its applicability to the program under which the  recipient receives Federal financial assistance, and make such  information available to them in such manner, as the responsible agency  official finds necessary to apprise such persons of the protection  [[Page 69]]  against discrimination assured them by the Act and this regulation.  Sec. 7.11  Conduct of investigations.      (a) Periodic compliance reviews. The responsible agency official or  his designee shall from time to time review the practices of recipients  to determine whether they are complying with this regulation.     (b) Complaints. Any person who believes himself or any specific  class of individuals to be subjected to discrimination prohibited by  this regulation may by himself or by a representative file a written  complaint with the National Headquarters or any Regional Office of the  Federal Emergency Management Agency. A complaint must be filed not later  than 180 days from the date of the alleged discrimination, unless the  time for filing is extended by the responsible agency official or his  designee.     (c) Investigations. The responsible agency official or his designee  will make a prompt investigation whenever a compliance review, report,  complaint, or any other information indicates a possible failure to  comply with this regulation. The investigation should include, where  appropriate, a review of the pertinent practices and policies of the  recipient, the circumstances under which the possible noncompliance with  this regulation occurred, and other factors relevant to a determination  as to whether the recipient has failed to comply with this regulation.     (d) Resolution of matters. (1) If an investigation pursuant to  paragraph (c) of this section indicates a failure to comply with this  regulation, the responsible agency official or his designee will so  inform the recipient and the matter will be resolved by informal means  whenever possible. If it has been determined that the matter cannot be  resolved by informal means, action will be taken as provided for in  section 12.     (2) If an investigation does not warrant action pursuant to  paragraph (d)(1) of this section the responsible agency official or his  designee will so inform the recipient and the complainant, if any, in  writing.     (e) Intimidatory or retaliatory acts prohibited. No recipient or  other person shall intimidate, threaten, coerce, or discriminate against  any individual for the purpose of interfering with any right or  privilege secured by section 601 of the Act or this regulation, or  because he has made a complaint, testified, assisted, or participated in  any manner in an investigation, proceeding, or hearing under this  regulation. The identity of complainants shall be kept confidential  except to the extent necessary to carry out the purposes of this  regulation, including the conduct of any investigation, hearing, or  judicial proceeding arising thereunder.  [30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and  further redesignated at 55 FR 23078, June 6, 1990, as amended at 64 FR  38309, July 16, 1999]  Sec. 7.12  Procedure for effecting compliance.      (a) General. If there appears to be a failure or threatened failure  to comply with this regulation, and if the noncompliance or threatened  noncompliance cannot be corrected by informal means, compliance with  this regulation may be effected by the suspension or termination of or  refusal to grant or to continue Federal financial assistance or by any  other means authorized by law. Such other means may include, but are not  limited to, (1) a reference to the Department of Justice with a  recommendation that appropriate proceedings be brought to enforce any  rights of the United States under any law of the United States  (including other titles of the Act), or any assurance or other  contractual undertaking, and (2) any applicable proceeding under state  or local law.     (b) Noncompliance with section 7. If an applicant fails or refuses  to furnish an assurance required under section 7 or otherwise fails or  refuses to comply with a requirement imposed by or pursuant to that  section Federal financial assistance may be refused in accordance with  the procedures of paragraph (c) of this section. The agency shall not be  required to provide assistance in such a case during the pendency of the  administrative proceedings under such paragraph except that the agency  shall continue assistance during the pendency of such proceedings where  such  [[Page 70]]  assistance is due and payable pursuant to an application thereof  approved prior to the effective date of this regulation.     (c) Termination of or refusal to grant or to continue Federal  financial assistance. No order suspending, terminating or refusing to  grant or continue Federal financial assistance shall become effective  until (1) the responsible agency official has advised the applicant or  recipient of his failure to comply and has determined that compliance  cannot be secured by voluntary means, (2) there has been an express  finding on the record, after opportunity for hearing, of a failure by  the applicant or recipient to comply with a requirement imposed by or  pursuant to this regulation, (3) the action has been approved by the  Director of the Federal Emergency Management Agency pursuant to section  14, and (4) the expiration of 30 days after the Director has filed with  the committee of the House and the committee of the Senate having  legislative jurisdiction over the program involved, a full written  report of the circumstances and the grounds for such action. Any action  to suspend or terminate or to refuse to grant or to continue Federal  financial assistance shall be limited to the particular political  entity, or part thereof, or other applicant or recipient as to whom such  a finding has been made and shall be limited in its effect to the  particular program, or part thereof, in which such noncompliance has  been so found.     (d) Other means authorized by law. No action to effect compliance by  any other means authorized by law shall be taken until (1) the  responsible agency official has determined that compliance cannot be  secured by voluntary means, (2) the action has been approved by the  Director of the Federal Emergency Management Agency, (3) the recipient  or other person has been notified of its failure to comply and of the  action to be taken to effect compliance, and (4) the expiration of at  least 10 days from the mailing of such notice to the recipient or other  person. During this period of at least 10 days additional efforts shall  be made to persuade the recipient or other person to comply with the  regulation and to take such corrective action as may be appropriate.  Sec. 7.13  Hearings.      (a) Opportunity for hearing. Whenever an opportunity for a hearing  is required by section 12(c), reasonable notice shall be given by  registered or certified mail, return receipt requested, to the affected  applicant or recipient. This notice shall advise the applicant or  recipient of the action proposed to be taken, the specific provision  under which the proposed action against it is to be taken, and the  matters of fact or law asserted as the basis for this action, and either  (1) fix a date not less than 20 days after the date of such notice  within which the applicant or recipient may request of the responsible  agency official that the matter be scheduled for hearing or (2) advise  the applicant or recipient that the matter in question has been set down  for hearing at a stated place and time. The time and place so fixed  shall be reasonable and shall be subject to change for cause. The  complainant, if any, shall be advised of the time and place of the  hearing. An applicant or recipient may waive a hearing and submit  written information and argument for the record. The failure of an  applicant or recipient to request a hearing under this subsection or to  appear at a hearing for which a date has been set shall be deemed to be  a waiver of the right to a hearing under section 602 of the Act and  section 12(c) of this regulation and consent to the making of a decision  on the basis of such information as is available.     (b) Time and place of hearing. Hearings shall be held at the  National Headquarters of the Federal Emergency Management Agency in  Washington, DC, at a time fixed by the responsible agency official  unless he determines that the convenience of the applicant or recipient  or of the agency requires that another place be selected. Hearings shall  be held before the responsible agency official or, at his discretion,  before a hearing examiner designated in accordance with section 11 of  the Administrative Procedure Act.  [[Page 71]]      (c) Right to counsel. In all proceedings under this section, the  applicant or recipient and the agency shall have the right to be  represented by counsel.     (d) Procedures, evidence, and record. (1) The hearing, decision, and  any administrative review thereof shall be conducted in conformity with  sections 5-8 of the Administrative Procedure Act, and in accordance with  such rules of procedure as are proper (and not inconsistent with this  section) relating to the conduct of the hearing, giving of notices  subsequent to those provided for in paragraph (a) of this section,  taking of testimony, exhibits, arguments and briefs, requests for  findings, and other related matters. Both the agency and the applicant  or recipient shall be entitled to introduce all relevant evidence on the  issues as stated in the notice for hearing or as determined by the  officer conducting the hearing at the outset of or during the hearing.     (2) Technical rules of evidence shall not apply to hearings  conducted pursuant to this regulation, but rules or principles designed  to assure production of the most credible evidence available and to  subject testimony to test by cross-examination shall be applied where  reasonably necessary by the officer conducting the hearing. The hearing  officer may exclude irrelevant, immaterial, or unduly repetitious  evidence. All documents and other evidence offered or taken for the  record shall be open to examination by the parties and opportunity shall  be given to refute facts and arguments advanced on either side of the  issues. A transcript shall be made of the oral evidence except to the  extent the substance thereof is stipulated for the record. All decisions  shall be based upon the hearing record and written findings shall be  made.     (e) Consolidated or joint hearings. In cases in which the same or  related facts are asserted to constitute noncompliance with this  regulation with respect to two or more programs to which this regulation  applies, or noncompliance with this regulation and the regulations of  one or more other Federal departments or agencies issued under title VI  of the Act, the Director of the Federal Emergency Management Agency may,  by agreement with such other departments or agencies where applicable,  provide for the conduct of consolidated or joint hearings, and for the  application to such hearings of rules of procedures not inconsistent  with this regulation. Final decisions in such cases, insofar as this  regulation is concerned, shall be made in accordance with section 14.  Sec. 7.14  Decisions and notices.      (a) Decision by person other than the responsible agency official.  If the hearing is held by a hearing examiner such hearing examiner shall  either make an initial decision, if so authorized, or certify the entire  record including his recommended findings and proposed decision to the  responsible agency official for a final decision, and a copy of such  initial decision or certification shall be mailed to the applicant or  recipient. Where the initial decision is made by the hearing examiner  the applicant or recipient may within 30 days of the mailing of such  notice of initial decision file with the responsible agency official his  exceptions to the initial decision, with his reasons therefor. In the  absence of exceptions, the responsible agency official may on his own  motion within 45 days after the initial decision serve on the applicant  or recipient a notice that he will review the decision. Upon the filing  of such exceptions or of such notice of review the responsible agency  official shall review the initial decision and issue his own decision  thereon including the reasons therefor. In the absence of either  exceptions or a notice of review the initial decision shall constitute  the final decision of the responsible agency official.     (b) Decisions on record or review by the responsible agency  official. Whenever a record is certified to the responsible agency  official for decision or he reviews the decision of a hearing examiner  pursuant to paragraph (a) of this section, or whenever he conducts the  hearing, the applicant or recipient shall be given reasonable  opportunity to file with him briefs or other written statements of its  contentions, and a copy of his final decision shall be given in writing  to the applicant or recipient and to the complainant, if any.  [[Page 72]]      (c) Decisions on record where a hearing is waived. Whenever a  hearing is waived pursuant to section 13(a) a decision shall be made by  the responsible agency official on the record and a copy of such  decision shall be given in writing to the applicant or recipient, and to  the complainant, if any.     (d) Rulings required. Each decision of a hearing officer or  responsible agency official shall set forth his ruling on each finding,  conclusion, or exception presented, and shall identify the requirement  or requirements imposed by or pursuant to this regulation with which it  is found that the applicant or recipient has failed to comply.     (e) Approval by Director. Any final decision of a responsible agency  official (other than the Director of the agency) which provides for the  suspension or termination of, or the refusal to grant or continue  Federal financial assistance, or the imposition of any other sanction  available under this regulation or the Act, shall promptly be  transmitted to the Director of the Federal Emergency Management Agency  who may approve such decision, may vacate it, or remit or mitigate any  sanction imposed.     (f) Content of orders. The final decision may provide for suspension  or termination of, or refusal to grant or continue Federal financial  assistance, in whole or in part, under the program involved, and may  contain such terms, conditions, and other provisions as are consistent  with and will effectuate the purposes of the Act and this regulation,  including provisions designed to assure that no Federal financial  assistance will thereafter be extended under such program to the  applicant or recipient determined by such decision to be in default in  its performance of an assurance given by it pursuant to this regulation,  or to have otherwise failed to comply with this regulation, unless and  until it corrects its noncompliance and satisfies the Director of the  Federal Emergency Management Agency that it will fully comply with this  regulation.  Sec. 7.15  Judicial review.      Action taken pursuant to section 602 of the Act is subject to  judicial review as provided in section 603 of the Act.  Sec. 7.16  Effect on other regulations; forms and instructions.      (a) Effect on other regulations. All regulations, orders, or like  directions heretofore issued by any officer of the Federal Emergency  Management Agency which impose requirements designed to prohibit any  discrimination against individuals on the ground of race, color, or  national origin under any program to which this regulation applies, and  which authorize the suspension or termination of or refusal to grant or  to continue Federal financial assistance to any applicant for or  recipient of such assistance under such program for failure to comply  with such requirements, are hereby superseded to the extent that such  discrimination is prohibited by this regulation, except that nothing in  this regulation shall be deemed to relieve any person of any obligation  assumed or imposed under any such superseded regulation, order,  instruction, or like direction prior to the effective date of this  regulation. Nothing in this regulation, however, shall be deemed to  supersede Executive Orders 10925 and 11114 (including future amendments  thereof) and regulations issued thereunder, or any other regulations or  instructions, insofar as such regulations or instructions prohibit  discrimination on the ground of race, color, or national origin in any  program or situation to which this regulation is inapplicable, or  prohibit discrimination on any other ground.     (b) Forms and instructions. Each responsible agency official shall  issue and promptly make available to interested persons forms and  detailed instructions and procedures for effectuating this regulation as  applied to programs to which this regulation applies and for which he is  responsible.     (c) Supervision and coordination. The Director of the Federal  Emergency Management Agency may from time to time assign to officials of  other departments or agencies of the Government with the consent of such  departments or agencies, responsibilities in connection with the  effectuation of the purposes of title VI of the Act and this regulation  (other than responsibility for final decision as provided in section  [[Page 73]]  14), including the achievement of effective coordination and maximum  uniformity within the agency and within the Executive Branch of the  Government in the application of title VI and this regulation to similar  programs and in similar situations.  Subparts B-D [Reserved]      Subpart E--Nondiscrimination on the Basis of Age in FEMA Program              Activities Receiving Federal Financial Assistance      Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C.  26101 et seq. (45 CFR part 90).      Source: 55 FR 23078, June 6, 1990, unless otherwise noted.                                   General  Sec. 7.910  What is the purpose of the Age Discrimination Act of 1975?      The Age Discrimination Act of 1975 (the ``Act''), as amended, is  designed to prohibit discrimination on the basis of age in programs or  activities receiving Federal financial assistance. The Act also permits  federally-assisted programs and activities, and recipients of Federal  funds, to continue to use certain age distinctions and factors other  than age which meet the requirements of the Act and this regulation.  Sec. 7.911  What is the purpose of FEMA's age discrimination regulation?      The purpose of this regulation is to set out FEMA's policies and  procedures under the Age Discrimination Act of 1975 and the general  governmentwide regulations, 45 CFR part 90. The Act and the general  regulations prohibit discrimination on the basis of age in programs or  activities receiving Federal financial assistance. The Act and the  general regulations permit federally-assisted programs, activities, and  recipients of Federal funds, to continue to use age distinctions and  factors other than age which meet the requirements of the Act and its  implementing regulations.  Sec. 7.912  To what programs does this regulation apply?      (a) The Act and this regulation apply to each FEMA recipient and to  each program or activity operated by the recipient which receives or  benefits from Federal financial assistance provided by FEMA.     (b) The Act and this regulation do not apply to:     (1) An age distinction contained in that part of a Federal, State or  local statute or ordinance adopted by an elected, general purpose  legislative body which:     (i) Provides any benefits or assistance to persons based on age; or     (ii) Establishes criteria for participation in age-related terms; or     (iii) Describes intended beneficiaries or target groups in age- related terms.     (2) Any employment practice of any employer, employment agency,  labor organization, or any labor-management joint apprenticeship  training program, except for any program or activity receiving Federal  financial assistance for public service employment under the Job  Training Partnership Act (29 U.S.C. 150, et seq.)  Sec. 7.913  Definition of terms used in this regulation.      As used in this regulation, the term Act means the Age  Discrimination Act of 1975 as amended (title III of Pub. L. 94-135).     Action means any act, activity, policy, rule, standard, or method of  administration; or the use of any policy, rule, standard or method of  administration.     Age means how old a person is, or the number of years from the date  of a person's birth.     Age distinction means any action using age or an age-related term.     Age-related term means a word or words which necessarily imply a  particular age or range of ages (for example, children, older persons,  but not student).     Agency means the Federal Emergency Management Agency.     Director means the Director of the Federal Emergency Management  Agency.     Federal financial assistance means any grant, entitlement, loan,  cooperative  [[Page 74]]  agreement, contract (other than a procurement contract or a contract of  insurance or guaranty), or any other arrangement by which the agency  provides or otherwise makes available assistance in the form of:     (a) Funds; or     (b) Services or Federal personnel; or     (c) Real and personal property or any interest in or use of  property, including:     (1) Transfers or leases of property for less than fair market value  or for reduced consideration; and     (2) Proceeds from a subsequent transfer or lease of property if the  Federal share of its fair market value is not returned to the Federal  Government.     Normal operation means the operation of a program or activity  without significant changes that would impair its ability to meet its  objective.     Recipient means any State or its political subdivision, any  instrumentality of a State or its political subdivision, institution,  organization, or other entity, or any person to which Federal financial  assistance is extended, directly or through another recipient. Recipient  includes any successor, assignee, or transferee, but excludes the  ultimate beneficiary of the assistance.     Statutory objective means any purpose of a program or activity  expressly stated in any Federal statute, State statute or local statute  or ordinance adopted by an elected, general purpose legislative body.     Subrecipient means any of the entities in the definition of  ``recipient'' to which a recipient extends or passes on Federal  financial assistance. A subrecipient is generally regarded as a  recipient of Federal financial assistance and has all the duties of a  recipient in these regulations.     United States includes the States of the United States, the District  of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands,  American Samoa, Guam, the Commonwealth of the Northern Mariana Islands,  Wake Island, the Canal Zone, the Trust Territory of the Pacific Islands  and all other territories and possessions of the United States. The term  ``State'' also includes any one of the foregoing.                Standards for Determining Age Discrimination  Sec. 7.920  Rules against discrimination.      The rules stated in this section are limited by the exceptions  contained in Secs. 7.921 and 7.922 of these regulations.     (a) General rule: No person in the United States shall, on the basis  of age, be excluded from participation in, be denied the benefits of, or  be subjected to discrimination under, any program or activity receiving  Federal financial assistance.     (b) Specific rules: A recipient may not, in any program or activity  receiving Federal financial assistance, directly or through contractual  licensing, or other arrangements, use age distinctions or take any other  actions which have the effect, on the basis of age, of:     (1) Excluding individuals from, denying them the benefits of,  subjecting them to discrimination under, a program or activity receiving  Federal financial assistance; or     (2) Denying or limiting individuals in their opportunity to  participate in any program or activity receiving Federal financial  assistance. The specific forms of age discrimination listed in paragraph  (b) of this section do not necessarily constitute a complete list.  Sec. 7.921  Exceptions to the rules against age discrimination: Normal            operation or statutory objective of any program or activity.      A recipient is permitted to take an action, otherwise prohibited by  Sec. 7.920, if the action reasonably takes into account age as a factor  necessary to the normal operation of the achievement of any statutory  objective of a program or activity. An action reasonably takes into  account age as a factor necessary to the normal operation or the  achievement of any statutory objective of a program or activity, if:     (a) Age is used as a measure or approximation of one or more other  characteristics; and     (b) The other characteristic(s) must be measured or approximated in  order for the normal operation of the program or activity to continue,  or to achieve any statutory objective of the program or activity; and  [[Page 75]]      (c) The other characteristic(s) can be reasonably measured or  approximated by the use of age; and     (d) The other characteristic(s) are impractical to measure directly  on an individual basis.  Sec. 7.922  Exceptions to the rules against age discrimination:            Reasonable factors other than age.      A recipient is permitted to take an action otherwise prohibited by  Sec. 7.920 which is based on a factor other than age, even though that  action may have a disproportionate effect on persons of different ages  only if the factor bears a direct and substantial relationship to the  normal operation of the program or activity or to the achievement of a  statutory objective.  Sec. 7.923  Burden of proof for exceptions.      The burden of proving that an age distinction or other action falls  within the exceptions outlined in Secs. 7.921 and 7.922 is on the  recipient of Federal financial assistance.  Sec. 7.924  Affirmative action by recipient.      Even in the absence of a finding of discrimination, a recipient may  take affirmative action to overcome the effects of conditions that  resulted in the limited participation in the recipient's program or  activity on the basis of age.  Sec. 7.925  Special benefits for children and the elderly.      If a recipient operating a program provides special benefits to the  elderly or to children, such use of age distinctions shall be presumed  to be necessary to the normal operation of the program, notwithstanding  the provisions of Sec. 7.921.  Sec. 7.926  Age distinctions contained in FEMA regulations.      Any age distinctions contained in a rule or regulation issued by  FEMA shall be presumed to be necessary to the achievement of a statutory  objective of the program to which the rule or regulation applies,  notwithstanding the provisions of Sec. 7.921.                          Duties of FEMA Recipients  Sec. 7.930  General responsibilities.      Each FEMA recipient has primary responsibility to ensure that its  programs and activities are in compliance with the Act and this  regulation, and shall take steps to eliminate violations of the Act. A  recipient also has responsibility to maintain records, provide  information, and to afford FEMA access to its records to the extent FEMA  finds necessary to determine whether the recipient is in compliance with  the Act and this regulation.  Sec. 7.931  Notice to subrecipients and beneficiaries.      (a) Where a recipient passes on Federal financial assistance from  FEMA to subrecipients, the recipient shall provide the subrecipients  written notice of their obligations under the Act and this regulation.     (b) Each recipient shall make necessary information about the Act  and this regulation available to its program beneficiaries in order to  inform them about the protection against discrimination provided by the  Act and this regulation.  Sec. 7.932  Assurance of compliance and recipient assessment of age            distinctions.      (a) Each recipient of Federal financial assistance from FEMA shall  sign a written assurance as specified by FEMA that it will comply with  Act and this regulation.     (b) Recipient assessment of age distinctions. (1) As part of the  compliance review under Sec. 7.940 or complaint investigation under  Sec. 7.943, FEMA may require a recipient employing the equivalent of  fifteen or more employees to complete written evaluation, in a manner  specified by the responsible Agency official, of any age distinction  imposed in its program or activity receiving Federal financial  assistance from FEMA to assess the recipient's compliance with the Act.     (2) Whenever an assessment indicates a violation of the Act and the  FEMA regulations, the recipient shall take corrective action.  [[Page 76]]  Sec. 7.933  Information requirement.      Each recipient shall:     (a) Keep records in a form acceptable to FEMA and containing  information which FEMA determines are necessary to ascertain whether the  recipient is complying with the Act and this regulation.     (b) Provide to FEMA, upon request, information and reports which  FEMA determines are necessary to ascertain whether the recipient is  complying with the Act and this regulation.     (c) Permit FEMA reasonable access to the books, records, accounts,  and other recipient facilities and sources of information to the extent  FEMA determines is necessary to ascertain whether the recipient is  complying with the Act and this regulation.           Investigation, Conciliation, and Enforcement Procedures  Sec. 7.940  Compliance reviews.      (a) FEMA may conduct compliance reviews and preaward reviews or use  other similar procedures that will permit it to investigate and correct  violations of the Act and this regulation. FEMA may conduct these  reviews even in the absence of a complaint against a recipient. The  reviews may be as comprehensive as necessary to determine whether a  violation of the Act and this regulation has occurred.     (b) If a compliance review or preaward review indicates a violation  of the Act or this regulation, FEMA will attempt to achieve voluntary  compliance with the Act. If voluntary compliance cannot be achieved,  FEMA will arrange for enforcement as described in Sec. 7.945.  Sec. 7.941  Complaints.      (a) Any person, individually or as a member of a class or on behalf  of others, may file a complaint with FEMA, alleging discrimination  prohibited by the Act or these regulations occurring after the date of  final adoption of this rule. A complainant shall file a complaint within  180 days from the date the complainant first had knowledge of the  alleged act of discrimination. However, for good cause showing, FEMA may  extend this time limit.     (b) FEMA will consider the date a complaint is filed to be the date  upon which the complaint is sufficient to be processed. A complaint is  deemed ``sufficient'' when it contains particulars (e.g., names,  addresses, and telephone numbers of parties involved; date(s) of alleged  discrimination; kind(s) of alleged discrimination) upon which to begin  an investigation.     (c) FEMA will attempt to facilitate the filing of complaints  wherever possible, including taking the following measures:     (1) Accepting as a sufficient complaint any written statement which  identifies the parties involved and the date the complainant first had  knowledge of the alleged violation, describes generally the action or  practice complained of, and is signed by the complainant.     (2) Freely permitting a complainant to add information to the  complaint to meet the requirements of a sufficient complaint.     (3) Notifying the complainant and the recipient of their rights and  obligations under the complaint procedure, including the right to have a  representative at all stages of the complaint procedure.     (4) Notifying the complainant and the recipient (or their  representatives) of their right to contact FEMA for information and  assistance regarding the complaint resolution process.     (d) FEMA will return to the complainant any complaint outside the  jurisdiction of this regulation, and will state the reason(s) why it is  outside the jurisdiction of this regulation.  Sec. 7.942  Mediation.      (a) FEMA will promptly refer to a mediation agency designated by the  Director all sufficient complaints that:     (1) Fall within the jurisdiction of the Act and this regulation,  unless the age distinction complained of is clearly within an exception;  and,     (2) Contain all information necessary for further processing.     (b) Both the complainant and the recipient shall participate in the  mediation process to the extent necessary to reach an agreement or for  the mediator to make an informed judgment that an agreement is not  possible.  [[Page 77]]      (c) If the complainant and the recipient reach an agreement, the  mediator shall prepare a written statement of the agreement and have the  complainant and the recipient sign it. The mediator shall send a copy of  the agreement to FEMA. FEMA will take no further action on the complaint  unless the complainant or the recipient fails to comply with the  agreement.     (d) The mediator shall protect the confidentiality of all  information obtained in the course of the mediation process. No mediator  shall testify in any adjudicative proceeding, produce any document, or  otherwise disclose any information obtained in the course of the  mediation process without prior approval of the head of the mediation  agency.     (e) The mediation will proceed for a maximum of 60 days after a  complaint is filed with FEMA. Mediation ends if:     (1) Sixty days elapse from the time the complaint is filed; or     (2) Prior to the end of that 60 day period, an agreement is reached;  or     (3) Prior to the end of that 60 day period, the mediator determines  that an agreement cannot be reached. This 60 day period may be extended  by the mediator, with the concurrence of FEMA, for not more than 30 days  if the mediator determines agreement will likely be reached during such  extended period.     (f) The mediator shall return unresolved complaints to FEMA.  Sec. 7.943  Investigation.      (a) Informal investigation. (1) FEMA will investigate complaints  that are unresolved after mediation or are reopened because of a  violation of a mediation agreement.     (2) As part of the initial investigation, FEMA will use informal  fact finding methods, including joint or separate discussion with the  complainant and recipient, to establish the facts and, if possible,  settle the complaint on terms that are mutually agreeable to the  parties. FEMA may seek the assistance of any involved state program  agency.     (3) FEMA will put any agreement in writing and have it signed by the  parties and an authorized official at FEMA.     (4) The settlement shall not affect the operation of any other  enforcement effort of FEMA, including compliance reviews and  investigation of other complaints which may involve the recipient.     (5) The settlement is not a finding of discrimination against a  recipient.     (b) Formal investigation. If FEMA cannot resolve the complaint  through informal investigation, it will begin to develop formal findings  through further investigation of the complaint. If the investigation  indicates a violation of this regulation, FEMA will attempt to obtain  voluntary compliance, it will begin enforcement as described in  Sec. 7.945.  Sec. 7.944  Prohibition against intimidation or retaliation.      A recipient may not engage in acts of intimidation or retaliation  against any person who:     (a) Attempts to assert a right protected by the Act or this  regulation; or     (b) Cooperates in any mediation, investigation, hearing, or other  part of FEMA's investigation, conciliation and enforcement process.  Sec. 7.945  Compliance procedure.      (a) FEMA may enforce the Act and this regulation through:     (1) Termination of a recipient's Federal financial assistance from  FEMA under the program or activity involved where the recipient has  violated the Act or this regulation. The determination of the  recipient's violation may be made only after a recipient has had an  opportunity for a hearing on the record before an administrative law  judge.     (2) Any other means authorized by law including but not limited to:     (i) Referral to the Department of Justice for proceedings to enforce  any rights of the United States or obligations of the recipient created  by the Act or this regulation.     (ii) Use of any requirement of or referral to any Federal, State or  local government agency that will have the effect of correcting a  violation of the Act or this regulation.  [[Page 78]]      (b) FEMA will limit any termination under Sec. 7.945(a)(1) to the  particular recipient and particular program or activity or part of such  program and activity FEMA finds in violation of this regulation. FEMA  will not base any part of a termination on a finding with respect to any  program or activity of the recipient which does not receive Federal  financial assistance from FEMA.     (c) FEMA will take no action under paragraph (a) until:     (1) The Director has advised the recipient of its failure to comply  with the Act and this regulation and has determined that voluntary  compliance cannot be obtained.     (2) Thirty days have elapsed after the Director has sent a written  report of the circumstances and grounds of the action to the committees  of the Congress having legislative jurisdiction over the Federal program  or activity involved. The Director will file a report whenever any  action is taken under paragraph (a).     (d) FEMA also may defer granting new Federal financial assistance  from FEMA to a recipient when a hearing under Sec. 7.945(a)(1) is  initiated.     (1) New Federal financial assistance from FEMA includes all  assistance for which FEMA requires an application or approval, including  renewal or continuation of existing activities, or authorization of new  activities, during the deferral period. New Federal financial assistance  from FEMA does not include increases in funding as a result of changed  computation of formula awards or assistance approved prior to the  beginning of a hearing under Sec. 7.945(a)(1).     (2) FEMA will not begin a deferral until the recipient has received  a notice of an opportunity for a hearing under Sec. 7.945(a)(1). FEMA  will not continue a deferral for more than 60 days unless a hearing has  begun within that time or the time for beginning the hearing has been  extended by mutual consent of the recipient for more than 30 days after  the close of the hearing, unless the hearing results in a finding  against the recipient.     (3) FEMA will limit any deferral to the particular recipient and  particular program or activity or part of such program or activity FEMA  finds in violation of this regulation. FEMA will not base any part of a  deferral on a finding with respect to any program or activity of the  recipient which does not and would not, in connection with new funds,  receive Federal financial assistance from FEMA.  Sec. 7.946  Hearings, decisions, post-termination proceedings.      Certain FEMA procedural provisions applicable to title VI of the  Civil Rights Act of 1964 apply to FEMA enforcement of this regulation.  They are found at 44 CFR 7.10 through 7.16.  Sec. 7.947  Remedial action by recipient.      Where FEMA finds a recipient has discriminated on the basis of age,  the recipient shall take any remedial action that FEMA may require to  overcome the effects of the discrimination. If another recipient  exercises control over the recipient that had discriminated, FEMA may  require both recipients to take remedial action.  Sec. 7.948  Alternate funds disbursal procedure.      (a) When FEMA withholds funds from recipient under this regulation,  the Director may, if allowable under the statute governing the  assistance, disburse the withheld funds directly to an alternate  recipient: Any public or nonprofit private organization or agency, or  State or political subdivision of the State.     (b) The Director will require any alternate recipient to  demonstrate:     (1) The ability to comply with this regulation; and     (2) The ability to achieve the goals of the Federal statute  authorizing the program or activity.  Sec. 7.949  Exhaustion of administrative remedies.      (a) A complainant may file a civil action following the exhaustion  of administrative remedies under the Act. Administrative remedies are  exhausted if:     (1) 180 days have elapsed since the complainant filed the complaint  and FEMA had made no finding with regard to the complaint; or     (2) FEMA issues any finding in favor of the recipient.  [[Page 79]]      (b) If FEMA fails to make a finding within 180 days or issues a  finding in favor of the recipient, FEMA shall:     (1) Promptly advise the complainant in writing of this fact; and     (2) Advise the complainant of his or her right to bring a civil  action for injunctive relief; and     (3) Inform the complainant:     (i) That the complainant may bring a civil action only in a United  States District Court for the district in which the recipient is located  or transacts business;     (ii) That a complainant prevailing in a civil action has the right  to be awarded the costs of the action, including reasonable attorney's  fees, but that the complainant must demand these costs in the complaint  at the time it is filed.     (iii) That before commencing the action, the complainant shall give  30 days notice by registered mail to the Director, the Attorney General  of the United States, and the recipient;     (iv) That the notice must state: The alleged violation of the Act;  the relief requested; the court in which the complainant is bringing the  action; and whether or not attorney's fees are demanded in the event the  complainant prevails; and     (v) That the complainant may not bring an action if the same alleged  violation of the Act by the same recipient is the subject of a pending  action in any court (Federal or State) of the United States.