| 10 CFR 1040
TITLE 10--ENERGY
CHAPTER X--DEPARTMENT OF ENERGY (GENERAL PROVISIONS)
PART 1040--NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS
Subpart A--General Provisions
Sec.
1040.1 Purpose.
1040.2 Application.
1040.3 Definitions--General.
1040.4 Assurances required and preaward review.
1040.5 Designation of responsible employee.
1040.6 Notice.
1040.7 Remedial and affirmative action and self-evaluation.
1040.8 Effect of employment opportunity.
Subpart B--Title VI of the Civil Rights Act of 1964; Section 16 of the
Federal Energy Administration Act of 1974, as Amended; and Section 401
of the Energy Reorganization Act of 1974
1040.11 Purpose and application.
1040.12 Definitions.
1040.13 Discrimination prohibited.
1040.14 Covered employment.
Subpart C--Nondiscrimination on the Basis of Sex--Title IX of the
Education Amendments of 1972, as Amended
1040.21 Purpose.
1040.22 Application.
1040.23 Definitions.
1040.24 Effects of other requirements.
1040.25 Educational institutions controlled by religious organizations.
1040.26 Military and merchant marine educational institutions.
1040.27 Membership practices of certain organizations.
1040.28 Admissions.
1040.29 Educational institutions eligible to submit transition plans.
1040.30 Transition plans.
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1040.31 Discrimination on the basis of sex in admission and recruitment
prohibited: admission.
1040.32 Preference in admission.
1040.33 Recruitment.
1040.34 Education programs and activities.
1040.35 Housing.
1040.36 Comparable facilities.
1040.37 Access to course offerings.
1040.38 Access to schools operated by LEA's.
1040.39 Counseling and use of appraisal and counseling materials.
1040.40 Financial assistance.
1040.41 Employment assistance to students.
1040.42 Health and insurance benefits and services.
1040.43 Marital or parental status.
1040.44 Athletics.
1040.45 Textbooks and curricular materials.
1040.46 Procedures.
Employment Practices
1040.47 Employment.
1040.48 Employment criteria.
1040.49 Recruitment.
1040.50 Compensation.
1040.51 Job classification and structure.
1040.52 Fringe benefits.
1040.53 Marital or parental status.
1040.54 Effect of State or local law or other requirements.
1040.55 Advertising.
1040.56 Pre-employment inquiries.
1040.57 Sex as a bona-fide occupational qualification.
Subpart D--Nondiscrimination on the Basis of Handicap--Section 504 of
the Rehabilitation Act of 1973, as Amended
General Provisions
1040.61 Purpose and application.
1040.62 Definitions.
1040.63 Discrimination prohibited.
1040.64 Effect of State or local law or other requirements and effect
of employment opportunities.
1040.65 Procedures.
Employment Practices
1040.66 Discrimination prohibited.
1040.67 Reasonable accommodation.
1040.68 Employment criteria.
1040.69 Preemployment inquiries.
Program Accessibility
1040.71 Discrimination prohibited.
1040.72 Existing facilities.
1040.73 New construction.
1040.74 Program accessibility in historic properties.
Subpart E--Nondiscrimination on the Basis of Age--Age Discrimination Act
of 1975, as Amended
General Provisions
1040.81 Purpose.
1040.82 Application.
1040.83 Definitions.
Standards for Determining Age Discrimination
1040.84 Rules against age discrimination.
1040.85 Definitions of ``Normal Operation'' and ``Statutory
Objective''.
1040.86 Exceptions to the rules against age discrimination. Normal
operation or statutory objective of any program or activity.
1040.87 Exceptions to the rules against age discrimination. Reasonable
factors other than age.
1040.88 Remedial and affirmative action by recipients.
1040.89 Burden of proof.
Responsibilities of DOE Recipients
1040.89-1 General responsibilities.
1040.89-2 Notice to subrecipients.
1040.89-3 Information requirements.
Investigation, Conciliation and Enforcement Procedures
1040.89-4 Compliance reviews.
1040.89-5 Complaints.
1040.89-6 Mediation.
1040.89-7 Investigation.
1040.89-8 Prohibition against intimidation or retaliation.
1040.89-9 Compliance procedure.
1040.89-10 Hearings, decisions, post-termination proceedings.
1040.89-11 Remedial action by recipients.
1040.89-12 Alternate funds disbursal procedure.
1040.89-13 Exhaustion of administrative remedies.
Appendix A to Subpart E to Part 1040--DOE Federally Assisted Programs
Containing Age Distinctions
Subpart F--Nondiscrimination Under Title VIII of the Civil Rights Act of
1968, as Amended [Reserved]
Subpart G--Program Monitoring
1040.101 Compliance reviews.
1040.102 Compliance information.
1040.103 [Reserved]
1040.104 Complaint investigation.
Subpart H--Enforcement
Means of Effecting Compliance
1040.111 Means available.
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1040.112 Noncompliance with assurances.
1040.113 Deferral.
1040.114 Termination of or refusal to grant or to continue Federal
financial assistance.
1040.115 Other means authorized by law.
Opportunity for Hearing
1040.121 Notice of opportunity for hearing.
1040.122 Request for hearing or review.
1040.123 Consolidated or joint hearings.
1040.124 Responsibility of the Federal Energy Regulatory Commission.
Judicial Review
1040.131 Judicial review.
Appendix A to Part 1040--Federal Financial Assistance of the Department
of Energy to Which This Part Applies
Authority: 20 U.S.C. 1681-1686; 29 U.S.C. 794; 42 U.S.C. 2000d to
2000d-4a, 3601-3631, 5891, 6101-6107, 6870, 7101 et seq.
Source: 45 FR 40515, June 13, 1980, unless otherwise noted.
Subpart A--General Provisions
Sec. 1040.1 Purpose.
The purpose of this part is to implement Title VI of the Civil
Rights Act of 1964, Pub. L. 88-352; section 16 of the Federal Energy
Administration Act of 1974, as amended, Pub. L. 93-275; section 401 of
the Energy Reorganization Act of 1974, Pub. L. 93-438; Title IX of the
Education Amendments of 1972, as amended, Pub. L. 92-318, Pub. L. 93-568
and Pub. L. 94-482; section 504 of the Rehabilitation Act of 1973, as
amended, Pub. L. 93-112; the Age Discrimination Act of 1975, Pub. L. 94-
135; Title VIII of the Civil Rights Act of 1968, Pub. L. 90-284; and
civil rights provisions of statutes administered pursuant to authority
under the DOE Organization Act, Pub. L. 95-91, so no person shall, on
the ground of race, color, national origin, sex (when covered by section
16 and section 401), handicap, or age, be excluded from participation
in, be denied the benefits of, be subjected to discrimination under, or
be denied employment, where a primary purpose of the program or activity
is to provide employment or when the delivery of program services is
affected by the recipient's employment practices (under section 504, all
grantee and subgrantee employment practices are covered regardless of
the purpose of the program), in connection with any program or activity
receiving Federal financial assistance from the Department of Energy
(after this referred to as DOE or the Department). Employment coverage
may be broader in scope when section 16, section 401, or Title IX are
applicable.
Sec. 1040.2 Application.
(a) The application of this part is to any program or activity for
which Federal financial assistance is authorized under laws administered
by DOE. Programs to which this part applies are listed in Appendix A of
this part. Appendix A is to be revised from time to time by notice
published in the Federal Register. This part applies to money paid,
property transferred, or other Federal financial assistance including
cooperative agreements extended under any program or activity, by way of
grant, loan, or contract by DOE, or grants awarded in the performance of
a contract with DOE by an authorized contractor or subcontractor, the
terms of which require compliance with this part. If any statutes
implemented by this part are otherwise applicable, the failure to list a
program in Appendix A does not mean the program is not covered by this
part.
(b) This part does not apply to:
(1) Contracts of insurance or guaranty;
(2) Employment practices under any program or activity except as
provided in Secs. 1040.12, 1040.14, 1040.41, 1040.47 and 1040.66; or
(3) Procurement contracts under Title 41 CFR part 1 or part 9.
Sec. 1040.3 Definitions--General.
(a) Academic institution includes any school, academy, college,
university, institute, or other association, organization, or agency
conducting or administering any program, project, or facility designed
to educate or train individuals.
(b) Administrative law judge means a person appointed by the
reviewing authority to preside over a hearing held under this part.
(c) Agency or Federal agency refers to any Federal department or
agency which extends Federal financial assistance.
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(d) Applicant for assistance means one who submits an application,
request, or plan required to be approved by a Department official or by
a primary recipient as a condition to becoming eligible for Federal
financial assistance.
(e) Assistant Attorney General refers to the Assistant Attorney
General, Civil Rights Division, United States Department of Justice.
(f) Director, FAPD refers to the Director, Federally Assisted
Programs Division, Office of Equal Opportunity, DOE.
(g) Compliance Review means an analysis of a recipient's selected
employment practices or delivery of services for adherence to provisions
of any of the subparts of this part.
(h) Department means the Department of Energy (DOE).
(i) FERC means the Federal Energy Regulatory Commission, DOE.
(j) Where designation of persons by race, color, or national origin
is required, the following designations are to be used:
(1) Black, not of Hispanic origin. A person having origins in any of
the black racial groups of Africa.
(2) Hispanic. A person of Mexican, Puerto Rican, Cuban, Central or
South American or other Spanish Culture or origin, regardless of race.
(3) Asian or Pacific Islander. A person having origins in any of the
original peoples of the Far East, Southeast Asia, the Indian
Subcontinent, or the Pacific Islands. This includes, for example, China,
India, Japan, Korea, the Philippine Islands, Hawaiian Islands, and
Samoa.
(4) American Indian or Alaskan Native. A person having origins in
any of the original peoples of North America and who maintains cultural
identification through tribal affiliation or community recognition.
(5) White, not of Hispanic origin. A person having origins in any of
the original peoples of Europe, North Africa, or the Middle East.
Additional subcategories based on national origin or primary language
spoken may be used where appropriate on either a national or a regional
basis. Paragraphs (j) (1) through (5), inclusive, set forth in this
section are in conformity with Directive No. 15 of the Office of Federal
Statistical Policy and Standards. To the extent that these designations
are modified, paragraphs (j) (1) through (5), inclusive, set forth in
this section are to be interpreted to conform with those modifications.
(k) Director means the Director, Office of Equal Opportunity, DOE.
(l) Disposition means any treatment, handling, decision, sentencing,
confinement, or other proscription of conduct.
(m) Employment practices, see individual section headings.
(n) Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, or other real or personal
property or interest in such property, and the provision of facilities
includes the construction, expansion, renovation, remodeling,
alteration, or acquisition of facilities.
(o) Federal financial assistance includes:
(1) Grants and loans of Federal funds,
(2) The grant or donation of Federal property and interest in
property,
(3) The detail of or provision of services by Federal personnel,
(4) The sale and lease of, and the permission to use (on other than
a casual or transient basis), Federal property or any interest in such
property, the furnishing of services without consideration or at a
nominal consideration, or at a consideration which is reduced for the
purpose of assisting the recipient, or in recognition of the public
interest to be served by the sale, lease, or furnishing of services to
the recipient, and
(5) Any Federal agreement, arrangement, or other contract which has
as one of its purposes the provision of assistance.
(p) General Counsel mean the Office of the General Counsel
Department of Energy.
(q) Government organization means the political subdivision for a
prescribed geographical area.
(r) Investigations include fact-finding efforts and attempts to
secure voluntary resolution of complaints.
(s) Noncompliance means the failure of a recipient or subrecipient
to comply with any subpart of this part.
(t) Primary recipient means any person, group, organization, state,
or local unit of government which is authorized or required to extend
Federal financial
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assistance to another recipient for the purpose of carrying out a
program.
(u) Program includes any program, project, or activity for the
provision of services, financial aid, or other benefits to individuals
(including education or training, health, welfare, rehabilitation,
housing, or other services, whether provided through an employee of the
grantee or provided by others through contracts or other arrangements
with the grantee, and including work opportunities and cash or loan or
other assistance to individuals), or for the provision of facilities for
furnishing services, financial aid, or other benefits to individuals.
The services, financial aid, or other benefits provided under a program
receiving Federal financial assistance shall be deemed to include any
services, financial aid, or other benefits provided with the aid of
Federal financial assistance or with the aid of any non-Federal funds,
property, or other resources required to be expended or made available
for the program to meet matching requirements or other conditions which
must be met in order to receive the Federal financial assistance, and to
include any services, financial aid, or other benefits provided in or
through a facility provided with the aid of Federal resources or such
non-Federal resources.
(v) Responsible Departmental or DOE Official means the official of
the Department of Energy that has been assigned the principal
responsibility for administration of the law extending Federal financial
assistance.
(w) Reviewing authority means the component of the Department
delegated authority by the Secretary to appoint, and to review the
decisions of, administrative law judges in cases arising under this
part.
(x) Secretary means the Secretary of the Department of Energy.
(y) The term United States includes the states of the United States,
the District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Island, American Samoa, Guam, Wake Island, the Canal Zone, and all other
territories and possessions of the United States, and the term State
includes any one of the foregoing.
(z) Headquarters means DOE offices located in Washington, D.C.
Sec. 1040.4 Assurances required and preaward review.
(a) Assurances. An applicant for Federal financial assistance for a
program or activity to which this part applies shall submit an assurance
on a form specified by the Director that the program or activity will be
operated in compliance with applicable subparts. Such assurances are to
include provisions which give the United States a right to seek judicial
enforcement.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended in the form of real property or to provide real
property or structure on the property, the assurance obligates the
recipient or, in the case of a subsequent transfer, the transferee, for
the period during which the real property or structures are used for the
purpose for which Federal financial assistance is extended or for
another purpose involving the provision of similar services or benefits.
(2) In the case of Federal financial assistance extended to provide
personal property, the assurance obligates the recipient for the period
during which it retains ownership or possession of the property.
(3) In all other cases, the assurance obligates the recipient to all
terms and conditions contained in the certificate of assurance for the
period during which Federal financial assistance is extended.
(c) Covenants. Where Federal financial assistance is provided in the
form of real property, structures, improvements on or interests in the
property, or in the case where Federal financial assistance is provided
in the form of a transfer of real property or interest in the property
from the Department:
(1) The instrument effecting or recording this transfer is to
contain a covenant running with the land to assure nondiscrimination for
the period during which the real property is used for a purpose for
which the Federal financial assistance is extended or for another
purpose involving the provision of similar services or benefits; or
(2) Where no transfer of property is involved or imposed with
Federal financial assistance, the recipient shall agree to include the
covenant described in paragraph (c)(1) of this section in
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the instrument effecting or recording any subsequent transfer of the
property.
(3) Where Federal financial assistance is provided in the form of
real property or interest in the property from the Department, the
covenant is to also include a condition coupled with a right to be
reserved by the Department to revert title to the property in the event
of a material breach of the covenant. If a transferee of real property
manages to mortgage or otherwise encumber the real property as security
for financing construction of new or improvement of existing facilities
on the property for the purpose for which the property was transferred,
the Director may, upon request of the transferee and, if necessary to
accomplish such financing and upon such conditions, as he or she deems
appropriate, agree to forbear the exercise of the right to revert title
for so long as the lien of the mortgage or other encumbrance remains
effective.
(d) Assurances from government agencies. In the case of any
application from any department, agency or office of any State or local
government for Federal financial assistance for any specified purpose,
the assurance required by this section is to extend to any other
department, agency, or office of the same governmental unit if the
policies of such other department, agency, or office will substantially
affect the project for which Federal financial assistance is requested.
That requirement may be waived by the responsible Department official if
the applicant establishes, to the satisfaction of the responsible
Department official, that the practices in other agencies or parts of
programs of the governmental unit will in no way affect:
(1) Its practices in the program for which Federal financial
assistance is sought;
(2) The beneficiaries of or participants in or persons affected by
such program; or
(3) Full compliance with the subpart as respects such program.
(e) Assurance from academic and other institutions. (1) In the case
of any application for Federal financial assistance for any purpose to
an academic institution, the assurance required by this section is to
extend to admission practices and to all other practices relating to the
treatment of students.
(2) The assurance required with respect to an academic institution,
detention or correctional facility, or any other institution or
facility, insofar as the assurance relates to the institution's
practices with respect to admission or other treatment of individuals as
students, patients, wards, inmates, persons subject to control, or
clients of the institution or facility or to the opportunity to
participate in the provision of services, disposition, treatment, or
benefits to such individuals, shall be applicable to the entire
institution or facility.
(f) Continuing State programs. Any State or State agency
administering a program which receives continuing Federal financial
assistance subject to this part shall, as a condition for the extension
of such assistance:
(1) Provide a statement that the program is (or, in the case of a
new program, will be) conducted in compliance with applicable subparts;
and
(2) Provide for such methods of administration as are found by the
Director or a designee to give reasonable assurance that the primary
recipient and all other recipients of Federal financial assistance under
such program will comply with this part.
(g) Assistance for construction. Where the assistance is sought for
the construction of a facility, or a part of a facility, the assurance
is to extend to the entire facility. If a facility to be constructed is
part of a larger system, the assurance is to extend to the larger
system.
(h) Pre-award review. Prior to and as a condition of approval, all
applications for Federal financial assistance are to be reviewed by the
appropriate Civil Rights Department official who is to make a written
determination of the applicant's compliance with this part. The basis
for such a determination is to be the submission of the assurance of
compliance as specified in paragraph (a) and a review of data to be
submitted by the applicant as specified by the Director. For purposes of
this subsection, the appropriate departmental
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official at headquarters level is the Director, FAPD, Office of Equal
Opportunity, and at the regional level it is to be the Civil Rights
Officer delegated by the Director as having review authority for
determining compliance with requirements of this part. Where a
determination of compliance cannot be made from this data, DOE may
require the applicant to submit necessary additional information and may
take other steps necessary to make the determination of compliance. Such
other steps may include, for example, communicating with local
government officials or protected class organizations and field reviews.
Any agreement to achieve voluntary compliance as a result of a preaward
review shall be in writing. In the case of Title VI, the Director will
notify the Assistant Attorney General of instances of probable
noncompliance determined as the result of application reviews. The
opportunity for a hearing as provided under Sec. 1040.113 is applicable
to this section.
Sec. 1040.5 Designation of responsible employee.
(a) Designation of responsible employee. Each recipient shall
designate at least one employee to coordinate its efforts to carry outs
its responsibilities under this part. The recipient shall publish the
name, office address and telephone number of the employee or employees
appointed under this paragraph.
(b) A recipient shall display prominently, in reasonable numbers and
places, posters which state that the recipient operates a program or
programs subject to the nondiscrimination provisions of applicable
subparts, summarize those requirements, note availability of information
regarding this part from the recipient and DOE, and explain briefly the
procedures for filing a complaint. Information on requirements of this
part, complaint procedures and the rights of beneficiaries are to be
included in handbooks, manuals, pamphlets, and other materials which are
ordinarily distributed to the public to describe the federally assisted
programs and the requirements for participation by recipients and
beneficiaries. To the extent that recipients are required by law or
regulation to publish or broadcast program information in the news
media, the recipient shall insure that such publications and broadcasts
state that the program in question is an equal opportunity program or
otherwise indicate that discrimination in the program is prohibited by
Federal law.
(c) Where a significant number or proportion of the population
eligible to be served or likely to be directly affected by a federally
assisted program requires service or information in a language other
than English in order to be informed of or to participate in the
program, the recipient shall take reasonable steps, considering the
scope of the program and size and concentration of such population, to
provide information in appropriate languages (including braille) to such
persons. This requirement applies to written material of the type which
is ordinarily distributed to the public. The Department may require a
recipient to take additional steps to carry out the intent of this
subsection.
Sec. 1040.6 Notice.
(a) A recipient shall take appropriate, initial and continuing steps
to notify participants, beneficiaries, applicants and employees,
including those with impaired vision or hearing, and unions or
professional organizations holding collective bargaining or professional
agreements with the recipient that it does not discriminate on the basis
of race, color, national origin, sex (where sec. 16 or sec. 401 apply),
handicap, or age. The notification is to state, where appropriate, that
the recipient does not discriminate in admission or access to, and
treatment of, or employment in its programs and activities and inform
employees of their rights under this part. The notification is to
include an identification of the responsible employee designated under
Sec. 1040.5. A recipient shall make the initial notification required by
this paragraph within 90 days of the effective date of this part.
Methods of initial and continuing notification may include the posting
of notices, publication in newspapers and magazines, placement of
notices in recipients' publications, and distribution of memoranda or
other written communications.
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(b) If a recipient publishes or uses recruitment materials or
publications containing general information that it makes available to
participants, beneficiaries, applicants, or employees, it shall include
in those materials or publications a statement of the policy described
in paragraph (a) of this section. A recipient may meet the requirement
of this paragraph either by including appropriate inserts in existing
materials and publications or by revising and reprinting the materials
and publications.
(c) The provisions of Sec. 1040.5(c) to provide information in
appropriate languages (including braille), apply to this section.
Sec. 1040.7 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the Director finds that a recipient has
discriminated against persons on the basis of race, color, national
origin, sex, handicap, or age in any program or activity receiving
Federal financial assistance, the recipient shall take remedial action
as the Director considers necessary to overcome the effects of the
discrimination.
(b) Affirmative action. In the absence of a finding of
discrimination on the basis of race, color, national origin, sex,
handicap, or age in any program or activity, a recipient may continue a
program that will encourage participation by all persons regardless of
race, color, national origin, sex, handicap, or age.
(c) Self-evaluation. Each recipient shall, within one year of the
effective date of this part:
(1) Whenever possible, evaluate, with the assistance of interested
persons, including handicapped persons or organizations representing
handicapped persons, its current policies and practices and the effects
thereof that do not or may not meet the requirements of this part;
(2) Modify any policies and practices which do not or may not meet
the requirements of this part; and
(3) Take appropriate remedial steps to eliminate the effects of
discrimination which resulted or may have resulted from adherence to
these questionable policies and practices.
(d) Availability of self-evaluation and related materials. Recipient
shall maintain on file, for at least three years following its
completion, the evaluation required under paragraph (c) of this section,
and shall provide to the Director, upon request, a description of any
modifications made under paragraph (c)(2) of this section and of any
remedial steps taken under paragraph (c)(3) of this section.
Sec. 1040.8 Effect of employment opportunity.
Due to limited opportunities in the past, certain protected groups
may be underrepresented in some occupations or professions. A
recipient's obligation to comply with this part is not alleviated by use
of statistical information which reflects limited opportunities in those
occupations or professions.
Subpart B--Title VI of the Civil Rights Act of 1964; Section 16 of the
Federal Energy Administration Act of 1974, as Amended; and Section 401
of the Energy Reorganization Act of 1974
Sec. 1040.11 Purpose and application.
(a) The purpose of this subpart is to implement title VI of the
Civil Rights Act of 1964 (title VI) and the pertinent regulations of DOE
so 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 otherwise be subjected to discrimination under any
program or activity receiving Federal financial assistance of the type
subject to title VI. This subpart also implements section 16 of the
Federal Energy Administration Act of 1974, as amended (section 16) and
section 401 of the Energy Reorganization of 1974 (section 401) so that
no person shall be excluded on the ground of sex from participation in,
be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance subject to
section 16 or 401. The coverage of employment practices is explained in
Sec. 1040.14.
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(b) The application of this subpart is to delivery of services by
and the covered employment practices of recipients and subrecipients
administering, participating in, or substantially benefiting from any
program or activity receiving Federal financial assistance under laws
administered by DOE covered by title VI. In addition to services and
employment practices, this subpart applies to any activities of
recipients or subrecipients receiving Federal financial assistance
subject to section 16 and section 401.
Sec. 1040.12 Definitions.
(a) Covered employment means employment practices covered by title
VI, section 16 and section 401.
(1) Under title VI, such practices are those which:
(i) Exist in a program where a primary objective of the Federal
financial assistance is to provide employment; or
(ii) Cause discrimination on the basis of race, color, or national
origin with respect to beneficiaries or potential beneficiaries of the
assisted program.
(2) Under section 16 and section 401, such practices include, but
are not limited to, employment practices covered by title VI when
alleging discrimination on the basis of sex. All employment practices of
a recipient or subrecipient of Federal financial assistance subject to
section 16 and section 401 are covered employment practices.
(b) Title VI refers to title VI of the Civil Rights Act of 1964, 42
U.S.C. 2000d et seq. which prohibits discrimination on the ground of
race, color or national origin in programs and activities receiving
Federal financial assistance. The definitions set forth in Sec. 1040.3
of subpart A to the extent not inconsistent with this subpart, are
applicable to and incorporated into this subpart.
Sec. 1040.13 Discrimination prohibited.
(a) General. No person in the United States shall be excluded on the
ground of race, color, national origin, or sex (when covered by section
16 or section 401), from participation in, be denied the benefits of, or
be otherwise subjected to discrimination under any program to which this
subpart applies.
(b) Specific discriminatory action prohibited. A recipient under any
program to which this subpart applies may not, directly or through
contractual or other arrangements, on the ground of race, color,
national origin or sex (when covered by section 16 or section 401):
(1) Deny any individual any disposition, service, financial aid, or
benefit provided under the program;
(2) Provide any disposition, service, financial aid, or 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/her receipt of any disposition, service,
financial aid, or benefit under the program;
(4) Restrict an individual in any way in the enjoyment of any
advantage or privilege enjoyed by others receiving any disposition,
service, financial aid, or benefit under the program;
(5) Treat an individual differently from others in determining
whether such individual satisfies any admission, enrollment, quota,
eligibility, membership, or other requirement or condition which
individuals must meet in order to be provided any disposition, service,
financial aid, function or benefit provided under the program;
(6) Deny an individual an opportunity to participate in the program
through the provision of services or otherwise afford such individual an
opportunity to do so which is different from that afforded others under
the program (including the opportunity to participate in the program as
an employee but only to the extent set forth in Sec. 1040.14 of this
subpart); or
(7) Deny a person the opportunity to participate as a member of a
planning or advisory body which is an integral part of the program.
(c) A recipient, in determining the type of Federal financial
assistance (i.e., disposition, services, financial aid, benefits, or
facilities) which will be provided under any program, or the class of
individuals to whom, or the situations in which the assistance will be
provided, may not, directly or through contractual or other
arrangements,
[[Page 736]]
utilize criteria or methods of administration which have the effect of
subjecting individuals to discrimination because of their race, color,
national origin, or sex (when covered by section 16 and section 401) or
have the effect of defeating or substantially impairing accomplishment
of the program objectives with respect to individuals of a particular
race, color, national origin, or sex (when covered by section 16 or
section 401).
(d) In determining the site or location of facilities, a recipient
or applicant may not make selections with the purpose or effect of
excluding individuals from, denying them the benefits of, or subjecting
them to discrimination because of race, color, national origin, or sex
(when covered by section 16 or 401) or with the purpose or effect of
defeating or substantially impairing the accomplishment of the
objectives of title VI or this subpart.
(e) For the purpose of this section, the disposition, services,
financial aid, or benefits provided under a program receiving Federal
financial assistance include any portion of any program, function, or
activity conducted by a recipient of Federal financial assistance in
which the program, function, or activity is directly or indirectly
improved, enhanced, enlarged, or benefited by the Federal financial
assistance or by which the recipient makes use of any facility,
equipment or property provided with the aid of Federal financial
assistance.
(f) The enumeration of specific forms of prohibited discrimination
in this paragraph and in Sec. 1040.14 of this subpart does not limit the
generality of the prohibition in paragraph (a) of this section.
(g) Exemptions. Exclusion from programs for protected groups. An
individual is not to be considered subjected to discrimination by reason
of his/her exclusion from the benefits of a program limited to
individuals of a particular race, color, national origin or sex
different from his/hers when the exclusion is provided for or required
by Federal law, for example, programs funded exclusively to serve on-
reservation Indians.
Sec. 1040.14 Covered employment.
(a) Employment practices. (1) Whenever a primary objective of the
Federal financial assistance to a program to which this subpart applies
is to provide employment, a recipient of the assistance may not
(directly or through contractual or other arrangements) subject any
individual to discrimination on the grounds of race, color, national
origin, or sex (when covered by section 16 and section 401) in its
employment practices under the program (including recruitment or
recruitment advertising, employment, layoff, or termination, upgrading,
demotion or transfer, training, participation in upward mobility
programs, rates of pay or other forms of compensation, and use of
facilities). This prohibition also applies to programs where the primary
objective of the Federal financial assistance is:
(i) To assist individuals through employment to meet expenses
incident to the commencement or continuation of their education or
training;
(ii) To provide work experience which contributes to the education
or training of the individuals involved;
(iii) To reduce the unemployment of individuals or to help them
through employment to meet subsistence needs; or
(iv) To provide employment to individuals who, because of handicaps,
cannot be readily absorbed in the competitive labor market. The
requirements applicable to construction under any such program are to be
those specified in or under part III of Executive Order 11246, as
amended, or any Executive Order which supersedes it.
(2) In regard to Federal financial assistance which does not have
provision of employment as a primary objective, the provisions of
paragraph (a)(1) of this section apply to the employment practices of
the recipient if discrimination on the ground of race, color, national
origin, or sex (when covered by section 16 or section 401) in such
employment practices tends to exclude persons from participation in,
deny them the benefits of, or subject them to discrimination under the
program receiving Federal financial assistance. In any such case, the
provisions of paragraph (a)(1) of this section apply to
[[Page 737]]
the extent necessary to assure equality of opportunity to and
nondiscriminatory treatment of beneficiaries.
(3) Paragraph (a)(1) also applies to covered employment as defined
in Sec. 1040.12(a)(2).
(b) Enforcement of title VI compliance with respect to covered
employment practices is not to be superseded by State or local merit
systems relating to the employment practices of the same recipient.
Subpart C--Nondiscrimination on the Basis of Sex--Title IX of the
Education Amendments of 1972, as Amended
Sec. 1040.21 Purpose.
The purpose of this subpart is to implement title IX of the
Education Amendments of 1972, Pub. L. 92-318, as amended by Pub. L. 93-
568, and Pub. L. 94-482, which is designed to eliminate (with certain
exceptions) discrimination on the basis of sex in any education program
or activity receiving Federal financial assistance, whether or not the
program or activity is offered or sponsored by an educational
institution as defined in this subpart.
Sec. 1040.22 Application.
Except as provided in Secs. 1040.25, 1040.26, and 1040.27, this
subpart applies to every recipient and to each education program or
activity operated by the recipient which receives or benefits from
Federal financial assistance.
Sec. 1040.23 Definitions.
(a) Title IX means title IX of the Education Amendments of 1972,
Pub. L. 92-318, as amended by sec. 3 of Pub. L. 93-568, 88 Stat. 1855,
(except secs. 904 and 906 of the Amendments), 20 U.S.C. 1681, 1682,
1683, 1685, and 1686.
(b) Educational Institution means a local educational agency
(L.E.A.) as defined by section 801(f) of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 881), a pre-school, a private
elementary or secondary school, or an applicant or recipient of the type
defined by paragraphs (c), (d), (e), or (f) of this section.
(c) Institution of graduate higher education means an institution
which:
(1) Offers academic study beyond the bachelor of arts or bachelor of
science degree, whether or not leading to a certificate of any higher
degree in the liberal arts and sciences; or
(2) Awards any degree in a professional field beyond the first
professional degree (regardless of whether the first professional degree
in the field is awarded by an institution of undergraduate higher
education or professional education); or
(3) Awards no degree and offers no further academic study, but
operates ordinarily for the purpose of facilitating research by persons
who have received the highest graduate degree in any field of study.
(d) Institution of undergraduate higher education means:
(1) An institution offering at least two, but less than four years
of college level study beyond the high school level leading to a diploma
or an associate degree or wholly or principally creditable toward a
baccalaureate degree; or
(2) An institution offering academic study leading to a
baccalaureate degree; or
(3) An agency or body which certifies credentials or offers degrees,
but which may or may not offer academic study.
(e) Institution of professional education means an institution
(except any institution of undergraduate higher education) which offers
a program of academic study that leads to a first professional degree in
a field for which there is a national specialized accrediting agency
recognized by the United States Commissioner of Education.
(f) Institution of vocational education means a school or
institution (except an institution of professional, graduate, or
undergraduate higher education) which has as its primary purpose
preparation of students to pursue a technical, skilled, or semi-skilled
occupation or trade, or to pursue study in a technical field, whether or
not the school or institution offers certificates, diplomas, or degrees
and whether or not it offers full time study.
(g) Administratively separate unit means a school, department, or
college of an educational institution (other
[[Page 738]]
than a local educational agency), admission to which is independent of
admission to any other component of the institution.
(h) Admission means selection for part-time, full-time, special,
associate, transfer, exchange, or any other enrollment, membership, or
matriculation in or at an education program or activity operated by a
recipient.
(i) Student means a person who has gained admission.
(j) Transition plan means a plan subject to the approval of the
United States Commissioner of Education under sec. 901(a)(2) of the
Education Amendments of 1972, under which an educational institution
operates in making the transition from being an educational institution
which admits only students of one sex to being one which admits students
of both sexes without discrimination. The definitions set forth in
Sec. 1040.3 of subpart A of this part, to the extent not inconsistent
with this subpart, are made applicable to and incorporated into this
subpart.
Sec. 1040.24 Effects of other requirements.
(a) Effect of other Federal provisions. The obligations imposed by
this subpart are independent of, and do not alter, obligations not to
discriminate on the basis of sex imposed by title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.); Executive Order 11246, as
amended; Sec. 799A and Sec. 845 of the Public Health Service Act (42
U.S.C. 295h-9 and 298b-2); the Equal Pay Act (29 U.S.C. 206 and 206(d);
and any other Act of Congress or Federal regulation.
(b) Effect of state or local law or other requirements. The
obligation to comply with this subpart is not obviated or alleviated by
any State or local law or other requirement which would render any
applicant or student ineligible, or limit the eligibility of any
applicant or student, on the basis of sex, to practice any occupation or
profession.
(c) Effect of rules or regulations of private organizations. The
obligation to comply with this subpart is not obviated or alleviated by
any rule or regulation of any organization, club, athletic or other
league or association, which would render any applicant or student
ineligible to participate or limit the eligibility or participation of
any applicant or student, on the basis of sex, in any education program
or activity operated by a recipient and which receives or benefits from
Federal financial assistance.
Sec. 1040.25 Educational institutions controlled by religious
organizations.
(a) Application. This subpart does not apply to an educational
institution which is controlled by a religious organization to the
extent that application of this subpart would not be consistent with the
religious tenets of such an organization.
(b) Exemption. An educational institution which wishes to claim the
exemption set forth in paragraph (a) of this section is to do so by
submitting, in writing, to the Director a statement by the highest
ranking official of the institution identifying the provisions of this
subpart which conflict with a specific tenet of the religious
organization.
Sec. 1040.26 Military and merchant marine educational institutions.
This subpart does not apply to an educational institution whose
primary purpose is the training of individuals for military service of
the United States or for the merchant marine.
Sec. 1040.27 Membership practices of certain organizations.
(a) Social fraternities and sororities. This subpart does not apply
to the membership practices of social fraternities and sororities which
are exempt from taxation under Sec. 501(a) of the Internal Revenue Code
of 1954, the active membership of which consists primarily of students
in attendance at institutions of higher education.
(b) Y.M.C.A., Y.W.C.A., Girl Scouts, Boy Scouts, and Camp Fire
Girls. This subpart does not apply to the membership practices of the
Young Men's Christian Association, the Young Women's Christian
Association, the Girl Scouts, the Boy Scouts, and the Camp Fire Girls.
(c) Voluntary youth service organizations. This subpart does not
apply to
[[Page 739]]
the membership practices of voluntary youth service organizations which
are exempt from taxation under Sec. 501(a) of the Internal Revenue Code
of 1954, the membership of which has been traditionally limited to
members of one sex and principally to persons of less than nineteen
years of age.
Sec. 1040.28 Admissions.
(a) Admission to education institutions prior to June 24, 1973 are
not covered by this subpart.
(b) Administratively separate units. For the purposes, only, of this
section, Secs. 1040.28 and 1040.29, each administratively separate unit
shall be deemed to be an educational institution.
(c) Application of Secs. 1040.31 through 1040.33. Except as provided
in paragraphs (c) and (d) of this section, Secs. 1040.31 through 1040.33
apply to each recipient. A recipient to which Secs. 1040.31 through
1040.33 apply shall not discriminate on the basis of sex in admission or
recruitment in violation of those sections.
(d) Educational institutions. Except as provided in paragraph (e) of
this section as to recipients which are educational institutions,
Secs. 1040.31 through 1040.33 apply only to institutions of vocational
education, professional education, graduate higher education, and public
institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education. Sections
1040.31 through 1040.33 do not apply to any public institutions of
undergraduate higher education which, traditionally and continually from
its establishment, has had a policy of admitting only students of one
sex.
Sec. 1040.29 Educational institutions eligible to submit transition
plans.
(a) Application. This section applies to each educational
institution to which Secs. 1040.31 through 1040.33 apply which:
(1) Admitted only students of one sex as regular students as of June
23, 1972; or
(2) Admitted only students of one sex as regular students as of June
23, 1965, but after that admitted as regular students individuals of the
sex not admitted prior to June 23, 1965.
(b) Provision for transition plans. An educational institution to
which this section applies is not to discriminate on the basis of sex in
admission or recruitment in violation of Secs. 1040.31 through 1040.33
unless it is carrying out a transition plan approved by the United
States Commissioner of Education as described in Sec. 1040.30, which
plan provides for the elimination of discrimination by the earliest
practicable date but in no event later than 90 days following final
publication of this regulation.
Sec. 1040.30 Transition plans.
(a) Submission of plans. Any institution to which Sec. 1040.28
applies and which is composed of more than one administratively separate
unit may submit either a single transition plan applicable to all units
or separate transition plans applicable to each unit.
(b) Content of plans. In order to be approved by the United States
Commissioner of Education, a transition plan is to:
(1) State the name, address, and Federal Interagency Committee on
Education (FICE) Code of the educational institution submitting the
plan, the administratively separate units to which the plan is
applicable, the name, address, and telephone number of the person to
whom questions concerning the plan may be addressed. The person who
submits the plan shall be the chief administrator or president of the
institution, or another individual legally authorized to bind the
institution to all actions set forth in the plan.
(2) State whether the educational institution or administratively
separate unit admits students of both sexes as regular students and, if
so, when it began to do so.
(3) Identify and describe, with respect to the educational
institution or administratively separate unit, any obstacles to
admitting students without discrimination on the basis of sex.
(4) Describe in detail the steps necessary to eliminate as soon as
practicable each obstacle indentified and indicate the schedule for
taking these steps and the individual responsible for their
implementation.
(5) Include estimates of the number of students, by sex, expected to
apply
[[Page 740]]
for, be admitted to, and enter each class during the period covered by
the plan.
(c) Nondiscrimination. No policy or practice of a recipient to which
Sec. 1040.29 applies is to result in treatment of applicants to, or
students of, the recipient in violation of Secs. 1040.31 through 1040.33
unless such treatment is necessitated by an obstacle identified in
paragraph (b)(3) of this section and a schedule for eliminating that
obstacle has been provided as required by paragraph (b)(4) of this
section.
(d) Effects of past exclusion. To overcome the effects of past
exclusion of students on the basis of sex, each educational institution
to which Sec. 1040.29 applies is to include in its transition plan and
implement specific steps designed to encourage individuals of the
previously excluded sex to apply for admission to the institution. The
steps are to include instituting recruitment programs which emphasize
the institution's commitment to enrolling students of the sex previously
excluded.
Sec. 1040.31 Discrimination on the basis of sex in admission and
recruitment prohibited: admission.
(a) General. No person shall, on the basis of sex, be denied
admission or be subjected to discrimination in admission by any
recipient to which Secs. 1040.31, 1040.32, and 1040.33 apply, except as
provided in Secs. 1040.29 and 1040.30.
(b) Specific prohibitions. (1) In determining whether a person
satisfies any policy or criterion for admission, or in making any offer
of admission, a recipient to which Secs. 1040.31, 1040.32, and 1040.33
apply shall not:
(i) Give preference to one person over another on the basis of sex,
by ranking applicants separately on that basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of
persons of either sex who may be admitted; or
(iii) Deny an equal opportunity for admission on the basis of sex.
(2) A recipient shall not administer or operate any test or other
criterion for admission which has a disproportionate adverse effect on
persons on the basis of sex unless the use of the test or criterion is
shown to predict validly success in the education program or activity
and alternative tests or criteria which do not have a disproportionate
adverse affect are shown to be unavailable.
(c) Prohibitions relating to marital or parental status. In
determining whether a person satisfies any policy or criterion for
admission, or in making any offer of admission, a recipient to which
Secs. 1040.31, 1040.32, and 1040.33 apply:
(1) Shall not apply any rule concerning the actual or potential
parental, family, or marital status of a student or applicant which
treats persons differently on the basis of sex;
(2) Shall not discriminate against or exclude any persons on the
basis of pregnancy, childbirth, termination of pregnancy, or recovery
therefrom, or establish or follow any rule or practice which
discriminates or excludes;
(3) Shall treat disabilities related to pregnancy, childbirth,
termination of pregnancy, or recovery therefrom in the same manner and
under the same policies as any other temporary disability or physical
condition; or
(4) Shall not make pre-admission inquiry as to the marital status of
an applicant for admission, including whether such applicant is ``Miss''
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of
an applicant for admission but only if the inquiry is made equally of
applicants of both sexes and if the results of the inquiry are not used
in connection with discrimination prohibited by this subpart.
Sec. 1040.32 Preference in admission.
A recipient to which Secs. 1040.31, 1040.32, and 1040.33 apply shall
not give preference to applicants for admission on the basis of
attendance at any educational institution or other school or entity
which admits as students or predominantly members of one sex if the
giving of such preference has the effect of discriminating on the basis
of sex in violation of Secs. 1040.31, 1040.32, and 1040.33.
Sec. 1040.33 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which
Secs. 1040.31, 1040.32, and 1040.33 apply shall not discriminate on the
basis of sex in the recruitment and admission of students. A recipient
may
[[Page 741]]
be required to undertake additional recruitment efforts for one sex as
remedial action under Sec. 1040.7(a) and may choose to undertake these
efforts as affirmative action under Sec. 1040.7(b).
(b) Recruitment at certain institutions. A recipient to which
Secs. 1040.31, 1040.32, and 1040.33 apply shall not recruit primarily or
exclusively at educational institutions, schools, or entities which
admit as students only or predominantly members of one sex, if these
actions have the effect of discriminating on the basis of sex in
violation of Secs. 1040.31, 1040.32, and 1040.33.
Sec. 1040.34 Education programs and activities.
(a) General. Except as provided elsewhere in this subpart, no person
shall, on the basis of sex, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any academic,
extracurricular, research, occupational training, or other education
program or activity operated by a recipient which receives or benefits
from Federal financial assistance. This subpart does not apply to
actions of a recipient in connection with admission of its students to
an education program or activity of--
(1) A recipient to which Secs. 1040.31, 1040.32, and 1040.33 do not
apply; or
(2) An entity, not a recipient, to which Secs. 1040.31, 1040.32, and
1040.33 would not apply if the entity were a recipient.
(b) Specific prohibitions. Except as provided in Secs. 1040.34
through 1040.45, in providing any aid, benefit, or service to a student,
a recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether
the person satisfies any requirement or condition for the provision of
the aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid,
benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior,
sanctions, or other treatment;
(5) Discriminate against any person in the application of any rules
of appearance;
(6) Apply any rule concerning the domicile or residence of a student
or applicant, including eligibility for in-state fees and tuition;
(7) Aid or perpetuate discrimination against any person by providing
significant assistance to any agency, organization, or person which
discriminates on the basis of sex in providing any aid, benefit or
service to students or employees;
(8) Otherwise limit any person in the enjoyment of any right,
privilege, advantage, or opportunity.
(c) Assistance administered by a recipient educational institution
to study at a foreign institution. A recipient educational institution
may administer or assist in the administration of scholarships,
fellowships, or other awards established by foreign or domestic wills,
trusts, or similar legal instruments, or by acts of foreign governments
and restricted to members of one sex, which are designed to provide
opportunities to study abroad, and which are awarded to students who are
already matriculating at or who are graduates of the recipient
institution. A recipient educational institution which administers or
assists in the administration of such scholarships, fellowships, or
other awards which are restricted to members of one sex must provide, or
otherwise make available, reasonable opportunities for similar studies
for members of the other sex. Such opportunities may be derived from
either domestic or foreign sources.
(d) Programs not operated by recipient. (1) This paragraph applies
to recipients which require participation by any applicant or student in
any education program or activity not operated wholly by the recipient,
or which facilitates, permits, or considers participation in educational
consortia and cooperative employment and student-teaching assignments.
(2) The recipient:
(i) Shall develop and implement a procedure designed to assure
itself that the operator or sponsor of such other education program or
activity takes no action affecting any applicant, student, or employee
of the recipient which this subpart would prohibit the recipient from
taking; and
[[Page 742]]
(ii) Shall not facilitate, require, permit, or consider
participation if such action occurs.
Sec. 1040.35 Housing.
(a) General. A recipient shall not, on the basis of sex, apply
different rules or regulations, impose different fees or requirements,
or offer different services or benefits related to housing, except as
provided in this section (including housing provided only to married
students).
(b) Housing provided by recipient. (1) A recipient may provide
separate housing on the basis of sex.
(2) Housing provided by a recipient to students of one sex, when
compared to that provided to students of the other sex, shall be as a
whole:
(i) Proportionate in quantity to the number of students of that sex
applying for such housing; and
(ii) Comparable in quality and cost to the student.
(c) Other housing. (1) A recipient shall not, on the basis of sex,
administer different policies or practices concerning occupancy by its
students of housing other than provided by the recipient.
(2) A recipient which, through solicitation, listing, approval of
housing, or otherwise, assists any agency, organization, or person in
making housing available to any of its students, shall take reasonable
action as may be necessary to assure itself that housing as is provided
to students of one sex, when compared to that provided to students of
the other sex, is as a whole:
(i) Proportionate in quantity; and
(ii) Comparable in quality and cost to the student. A recipient may
render this assistance to any agency, organization, or person which
provides all or part of such housing to students only of one sex.
Sec. 1040.36 Comparable facilities.
A recipient may provide separate toilet, locker room, and shower
facilities on the basis of sex, but the facilities provided for students
of one sex are to be comparable to the facilities provided for students
of the other sex.
Sec. 1040.37 Access to course offerings.
A recipient shall not provide any course or otherwise carry out any
of its education program or activity separately on the basis of sex, or
require or refuse participation by any of its students on that basis,
including health, physical education, industrial, business, vocational,
technical, home economics, music, and adult education courses.
(a) With respect to classes and activities in physical education at
the elementary school level, the recipient shall comply fully with this
section as expeditiously as possible but in no event later than one year
from the effective date of this regulation.
(b) This section does not prohibit grouping of students in physical
education classes and activities by ability as asessed by objective
standards of individual performance developed and applied without regard
to sex.
(c) This section does not prohibit separation of students by sex
within physical education classes or activities during participation in
wrestling, boxing, rugby, ice hockey, football, basketball, and other
sports, the purpose or major activity of which involves bodily contact.
(d) Where use of a single standard of measuring skill or progress in
a physical education class has an adverse effect on members of one sex,
the recipient shall use appropriate standards which do not have that
effect.
(e) Portions of classes in elementary and secondary schools which
deal exclusively with human sexuality may be conducted in separate
sessions for boys and girls.
(f) Recipients may make requirements based on vocal range or quality
which may result in a chorus or choruses of one or predominantly one
sex.
Sec. 1040.38 Access to schools operated by LEAs.
A recipient which is a local educational agency shall not, on the
basis of sex, exclude any person from admission to:
(a) Any institution of vocational education operated by the
recipient; or
(b) Any other school or educational unit operated by the recipient,
unless the recipient otherwise makes available to a person, under the
same policies and criteria of admission, courses, services, and
facilities comparable to
[[Page 743]]
each course, service, and facility offered in or through the schools.
Sec. 1040.39 Counseling and use of appraisal and counseling materials.
(a) Counseling. A recipient shall not discriminate against any
person on the basis of sex in counseling or guidance of students or
applicants for admission.
(b) Use of appraisal and counseling materials. A recipient which
uses testing or other materials for appraising or counseling students
shall not use different materials for students on the basis of their sex
or use materials which permit or require different treatment of students
on the basis of sex unless the different materials cover the same
occupations and interest areas and use of the different materials is
shown to be essential to eliminate sex bias. Recipients shall develop
and use internal procedures for ensuring that materials do not
discriminate on the basis of sex. Where the use of a counseling test or
other instrument results in a substantially disproportionate number of
members of one sex in any particular course of study or classification,
the recipient shall take action to assure itself that the disproportion
is not the result of discrimination in the instrument or its
application.
(c) Disproportion in classes. Where a recipient finds that a
particular class contains a substantially disproportionate number of
individuals of one sex, the recipient shall take action to assure itself
that the disproportion is not the result of discrimination on the basis
of sex in counseling, appraisal materials, or by counselors.
Sec. 1040.40 Financial assistance.
(a) General. Except as provided in paragraphs (b), (c), and (d) of
this section, in providing financial assistance to any of its students,
a recipient shall not:
(1) On the basis of sex, provide different amounts or types of
assistance, limit eligibility for assistance which is of any particular
type or source, apply different criteria, or otherwise discriminate;
(2) Through solicitation, listing, approval, provision of facilities
or other services, assist any foundation, trust, agency, organization,
or person which provides assistance to any of the recipient's students
in a manner which discriminates on the basis of sex; or
(3) Apply any rule or assist in application of any rule concerning
eligibility for assistance which treats persons of one sex different
from persons of the other sex with regard to marital or parental status.
(b) Financial aid established by certain legal instruments. (1) A
recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established pursuant to domestic or foreign wills, trusts, bequests, or
similar legal instruments or by acts of a foreign government which
require that awards be made to members of a particular sex specified in
those documents provided that the overall effect of the award of such
sex-restricted scholarships, fellowships and other forms of financial
assistance does not discriminate on the basis of sex.
(2) To ensure nondiscriminatory awards of assistance as required in
paragraph (b)(1) of this section, recipients shall develop and use
procedures under which:
(i) Students are selected for award of financial assistance on the
basis of nondiscriminatory criteria and not on the basis of availability
of funds restricted to members of a particular sex;
(ii) An appropriate sex-restricted scholarship, fellowship, or other
form of financial assistance is allocated to each student selected under
paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was
selected under paragraph (b)(a)(i) of this section because of the
absence of a scholarship, fellowship, or other form of financial
assistance designated for a member of that student's sex.
(c) Athletic scholarships. (1) To the extent that a recipient awards
athletic scholarships or grants-in-aid, it shall provide reasonable
opportunities for the awards for members of each sex in proportion to
the number of students of each sex participating in interscholastic or
intercollegiate athletics.
(2) Separate athletic scholarships or grants-in-aid for members of
each sex may be provided as part of separate athletic teams of members
of each sex
[[Page 744]]
to the extent consistent with this section and Sec. 1040.44 of this
subpart.
Sec. 1040.41 Employment assistance to students.
(a) Assistance by recipient in making available outside employment.
A recipient which assists any agency, organization or person in making
employment available to any of its students--
(1) Shall assure itself that the employment is made available
without discrimination on the basis of sex; and
(2) Shall not render services to any agency, organization, or person
which discriminates on the basis of sex in its employment practices.
(b) Employment of students by recipients. A recipient which employs
any of its students shall assure itself that all employment is made
available without discrimination on the basis of sex.
Sec. 1040.42 Health and insurance benefits and services.
In providing a medical, hospital, accident, or life insurance
benefit, service, policy, or plan to any of its students, a recipient
shall not discriminate on the basis of sex. This section is not to
prohibit a recipient from providing any benefit or service which may be
used by a different proportion of students of one sex than of the other,
including family planning services. However, any recipient which
provides full coverage health service shall provide gynecological care.
Sec. 1040.43 Marital or parental status.
(a) Status generally. A recipient shall not apply any rule
concerning a student's actual or potential parental, family, or marital
status which treats students differently on the basis of sex.
(b) Pregnancy and related conditions. (1) A recipient shall not
discriminate against any student, or exclude any student from its
education program or activity, including any class or extra-curricular
activity, on the basis of the student's pregnancy, childbirth, false
pregnancy, termination of pregnancy, or recovery therefrom unless the
student requests voluntarily to participate in a separate portion of the
program or activity of the recipient.
(2) A recipient may require the student to obtain the certification
of a physician that the student is physically and emotionally able to
continue participation in the normal education program or activity so
long as the certification is required of all students for other physical
or emotional conditions requiring the attention of a physician.
(3) A recipient which operates a portion of its educational program
or activity separately for pregnant students, admittance to which is
completely voluntary on the part of the student as provided in paragraph
(b)(1) of this section, shall ensure that the instructional program in
the separate program is comparable to that offered to non-pregnant
students.
(4) A recipient shall treat pregnancy, childbirth, false pregnancy,
termination of pregnancy and recovery therefrom in the same manner and
under the same policies as any other temporary disability with respect
to any medical or hospital benefit, service, plan, or policy which the
recipient administers, operates, offers or participates in with respect
to students admitted to the recipient's educational program or activity.
(5) In the case of a recipient which does not maintain a leave
policy for its students, or in the case of a student who does not
otherwise qualify for leave under such a policy, a recipient shall treat
pregnancy, childbirth, false pregnancy, termination of pregnancy and
recovery therefrom as a justification for a leave of absence for a
period of time considered medically necessary by the student's
physician, at the conclusion of which the student shall be reinstated to
the status which she held when the leave began.
Sec. 1040.44 Athletics.
(a) General. No person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, be treated differently from
another person or otherwise be discriminated against in any
interscholastic, intercollegiate, club, or intramural athletics offered
by the recipient, and no recipient shall provide any athletics
separately on the basis of sex.
(b) Separate teams. Notwithstanding the requirements of paragraph
(a) of this section, a recipient may operate or sponsor separate teams
for members of
[[Page 745]]
each sex where selection for teams is based upon competitive skill or
the activity involved is a contact sport. However, where a recipient
operates or sponsors a team in a particular sport for members of one sex
but operates or sponsors no such team for members of the other sex, and
athletic opportunities for members of that sex have previously been
limited, members of the excluded sex shall be allowed to try-out for the
team offered unless the sport involved is a contact sport. For the
purposes of this subpart, contact sports include boxing, wrestling,
rugby, ice hockey, football, basketball and other sports, the purpose of
major activity of which involves bodily contact.
(c) Equal opportunity. A recipient which operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics shall
provide equal athletic opportunity for members of both sexes. In
determining whether equal opportunities are available, the Director,
FAPD, is to consider, among other factors:
(1) Whether the selection of sports and levels of competition
effectively accommodate the interests and abilities of members of both
sexes;
(2) The provision of equipment and supplies;
(3) Scheduling of games and practice time;
(4) Travel and per diem allowance;
(5) Opportunity to receive coaching and academic tutoring;
(6) Assignment and compensation of coaches and tutors;
(7) Provision of locker rooms, practice and competitive facilities;
(8) Provision of medical and training facilities and services;
(9) Provision of housing and dining facilities and services; and
(10) Publicity.
Unequal aggregate expenditures for members of each sex or unequal
expenditures for male and female teams, if a recipient operates or
sponsors separate teams, will not constitute noncompliance with this
section, but the Director, FAPD, may consider the failure to provide
necessary funds for teams for one sex in assessing equality of
opportunity for members of each sex.
(d) Adjustment period. A recipient which operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
elementary, secondary or post-secondary school level shall comply fully
with this section as expeditiously as possible, but in no event later
than one year from the effective date of this regulation.
Sec. 1040.45 Textbooks and curricular material.
Nothing in this regulation is to be interpreted as requiring,
prohibiting, or abridging, in any way, the use of particular textbooks
or curricular materials.
Sec. 1040.46 Procedures.
The procedural provisions applicable to Title VI of the Civil Rights
Act of 1964 are adopted and incorporated in this section by reference.
These procedures may be found in subparts G and H of this part.
Employment Practices
Sec. 1040.47 Employment.
(a) General. (1) No person shall on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination in recruitment, employment consideration, or selection,
whether for full-time or part-time employment, under any educational
program or activity operated by a recipient which receives or benefits
from Federal financial assistance.
(2) A recipient shall make all employment decisions in any education
program or activity operated by such recipient in a nondiscriminatory
manner and shall not limit, segregate, or classify applicants or
employees in any way which could adversely affect any applicant's or
employee's employment opportunities or status because of sex.
(3) A recipient shall not enter into any contractual or other
relationship which directly or indirectly has the effect of subjecting
employees or students to discrimination prohibited by this subpart,
including relationships with employment and referral agencies, with
labor unions, and with organizations providing or administering fringe
benefits to employees of the recipient.
[[Page 746]]
(4) A recipient shall not grant preferences to applicants for
employment on the basis of attendance at any education institution or
entity which admits as students only or predominantly members of one
sex, if giving of such preferences has the effect of discriminating on
the basis of sex in violation of this part.
(b) Application. The provisions of this subpart appply to:
(1) Recruitment, advertising, and the process of application for
employment;
(2) Hiring, upgrading, promotion, consideration for an award of
tenure, demotion, transfer, layoff, termination, application of nepotism
policies, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation and changes in
compensation;
(4) Job assignments, classifications and structure, including
position descriptions, lines of progression, and seniority lists;
(5) The terms of any collective bargaining agreement;
(6) Granting and return from leaves of absence, leave for pregnancy,
childbirth, false pregnancy, termination of pregnancy, leave for persons
of either sex to care for children or dependents, or any other leave;
(7) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(8) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, selection for tuition assistance, selection for sabbaticals
and leaves of absence to pursue training;
(9) Employer-sponsored activities, including social or recreational
programs; and
(10) Any other term, condition, or privilege of employment.
Sec. 1040.48 Employment criteria.
A recipient shall not administer or operate any text or other
criterion for any employment opportunity which has a disproportionately
adverse effect on persons on the basis of sex unless:
(a) Use of such test or other criterion is shown to predict validly
successful performance in the position in question; and
(b) Alternative tests or criteria for such purpose, which do not
have such disproportionately adverse effect, are shown to be
unavailable.
Sec. 1040.49 Recruitment.
(a) Nondiscriminatory recruitment and hiring. A recipient shall not
discriminate on the basis of sex in the recruitment and hiring of
employees. Where a recipient has been found to be presently
discriminating on the basis of sex in the recruitment or hiring of
employees, or has been found to have in the past so discriminated, the
recipient shall recruit members of the sex so discriminated against so
as to overcome the effects of such past or present discrimination.
(b) Recruitment patterns. A recipient shall not recruit primarily or
exclusively at entities which furnish as applicants only or
predominantly members of one sex if such actions have the effect of
discriminating on the basis of sex in violation of this subpart.
Sec. 1040.50 Compensation.
A recipient shall not make or enforce any policy or practice which,
on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex at a
rate less than that paid to employees of the opposite sex for equal work
on jobs, the performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working
conditions.
Sec. 1040.51 Job classification and structure.
A recipient shall not:
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority
lists, career ladders, or tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority
systems, career ladders, or tenure systems for similar jobs, position
descriptions, or job requirements which classify persons on the basis of
sex, unless sex is a
[[Page 747]]
bona-fide occupational qualification for the positions in question as
set forth in Sec. 1040.57.
Sec. 1040.52 Fringe benefits.
(a) Fringe benefits defined. For purposes of this part, fringe
benefits means: Any medical, hospital, accident, life insurance or
retirement benefit, service, policy or plan, any profit-sharing or bonus
plan, leave, and any other benefit or service for employment not subject
to the provision of Sec. 1040.50.
(b) Prohibitions. A recipient shall not:
(1) Discriminate on the basis of sex with regard to making fringe
benefits available to employees or make fringe benefits available to
spouses, families, or dependents of employees differently upon the basis
of the employee's sex;
(2) Administer, operate, offer, or participate in a fringe benefit
plan which does not provide either for equal periodic benefits for
members of each sex, or for equal contributions to the plan by such
recipient for members of each sex; or
(3) Administer, operate, offer, or participate in a pension or
retirement plan which establishes different optional or compulsory
retirement ages based on sex or which otherwise discriminates in
benefits on the basis of sex.
Sec. 1040.53 Marital or parental status.
(a) General. A recipient shall not apply any policy or take any
employment action:
(1) Concerning the potential marital, parental, or family status of
an employee or applicant for employment which treats persons differently
on the basis of sex; or
(2) Which is based upon whether an employee or applicant for
employment is the head of household or principal wage earner in such
employee's or applicant's family unit.
(b) Pregnancy. A recipient shall not discriminate against or exclude
from employment any employee or applicant for employment on the basis of
pregnancy, childbirth, false pregnancy, termination of pregnancy, or
recovery therefrom.
(c) Pregnancy as a temporary disability. A recipient shall treat
pregnancy, childbirth, false pregnancy, termination of pregnancy,
recovery therefrom and any temporary disability resulting therefrom as
any other temporary disability for all job related purposes, including
commencement, duration and extensions of leave, payment of disability
income, accrual of seniority and any other benefit or service, and
reinstatement, and under any fringe benefit offered to employees by
virtue of employment.
(d) Pregnancy leave. In the case of a recipient which does not
maintain a leave policy for its employees, or in the case of an employee
with insufficient leave or accrued employment time to qualify for leave
under such a policy, a recipient shall treat pregnancy, childbirth,
false pregnancy, termination of pregnancy and recovery therefrom as a
justification for a leave of absence without pay for a reasonable period
of time. At the conclusion of the leave of absence, the employee shall
be reinstated to the status which she held when the leave began or to a
comparable position without decrease in rate of compensation or loss of
promotional opportunities or any other right or privilege of employment.
Sec. 1040.54 Effect of State or local law or other requirements.
(a) Prohibitory requirements. The obligation to comply with this
subpart is not obviated or alleviated by the existence of any state or
local law or other requirement which imposes prohibitions or limits upon
employment of members of one sex which are not imposed upon members of
the other sex.
(b) Benefits. A recipient which provides any compensation, service,
or benefit to members of one sex pursuant to a State or local law or
other requirement shall provide the same compensation, service, or
benefit to members of the other sex.
Sec. 1040.55 Advertising.
A recipient shall not in any advertising related to employment
indicate preference, limitation, specification, or discrimination based
on sex unless sex is a bona-fide occupational qualification for the
particular job in question.
Sec. 1040.56 Pre-employment inquiries.
(a) Marital status. A recipient shall not make pre-employment
inquiry as
[[Page 748]]
to the marital status of an applicant for employment, including whether
such applicant is ``Miss or Mrs.''
(b) Sex. A recipient may make pre-employment inquiry as to the sex
of an applicant for employment, but only if such inquiry is made equally
of such applicants of both sexes and if the results of such inquiry are
not used in connection with discrimination prohibited by this part.
Sec. 1040.57 Sex as a bona-fide occupational qualification.
A recipient may take action otherwise prohibited by this subpart
provided it is shown that sex is a bona fide occupational qualification
for that action, such that consideration of sex with regard to such
action is essential to successful operation of the employment function
concerned. A recipient shall not take action pursuant to this section
which is based upon alleged comparative employment characteristics or
stereotyped characterizations, but nothing contained in this section
shall prevent a recipient from considering an employee's sex in relation
to employment in a locker room or toilet facility used only by members
of one sex.
Subpart D--Nondiscrimination on the Basis of Handicap--Section 504 of
the Rehabilitation Act of 1973, as Amended
General Provisions
Sec. 1040.61 Purpose and application.
(a) The purpose of this subpart is to implement sec. 504 of the
Rehabilitation Act of 1973, which is designed to eliminate
discrimination on the basis of handicap in any program or activity
receiving Federal financial assistance.
(b) This subpart applies to each recipient or subrecipient of
Federal financial assistance from DOE and to each program or activity
that receives or benefits from assistance.
Sec. 1040.62 Definitions.
(a) Executive Order means Executive Order 11914, titled
``Nondiscrimination With Respect to the Handicapped in Federally
Assisted Programs'' issued on April 28, 1976.
(b) Section 504 means sec. 504 of the Rehabilitation Act of 1973,
Pub. L. 93-112, as amended by the Rehabilitation Act Amendments of 1974,
Pub. L. 93-516, 29 U.S.C. 794.
(c) Handicapped person means any person who has a physical or mental
impairment which substantially limits one or more major life activities,
has a record of such impairment, or is regarded as having such an
impairment.
(d) As used in paragraph (c) of this section, the phrase:
(1) Physical or mental impairment means--
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive, digestive,
genito-urinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness and drug addiction and
alcoholism, when current use of drugs and/or alcohol is not detrimental
to or interferes with the employee's performance, nor constitutes a
direct threat to property or safety of others.
(2) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means:
(i) Has a physical or mental impairment that does not substantially
limit major life activities but that is treated
[[Page 749]]
by a recipient as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraphs (d)(1) (i)
and (ii) of this section, but is treated by a recipient as having such
an impairment.
(e) Qualified handicapped person means:
(1) With respect to employment, a handicapped person who, with
reasonable accommodation, can perform the essential functions of the job
in question;
(2) With respect to public preschool, elementary, secondary, or
adult education services, a handicapped person:
(i) Of an age during which non-handicapped persons are provided such
services;
(ii) Of any age during which it is mandatory under state law to
provide such services to handicapped persons; or
(iii) To whom a state is required to provide a free appropriate
public education under sec. 612 of the Education for All Handicapped
Children Act of 1975, Pub. L. 94-142.
(3) With respect to postsecondary and vocational education services,
a handicapped person who meets the academic and technical standards
requisite to admission or participation in the recipient's education
program or activity; and
(4) With respect to other services, a handicapped person who meets
the essential eligibility requirements for the receipt of such services.
(f) Handicap means condition or characteristic that renders a person
a handicapped person as defined in paragraph (c) of this section.
(g) Historic properties means those architecturally, historically or
culturally significant properties listed in or eligible for listing in
the National Register of Historic Places or such properties designated
under a statute of the appropriate State or local governmental body.
(h) Building alterations means those changes to the existing
conditions and equipment of a building which do not involve any
structural changes, but which typically improve and upgrade a building,
such as alterations to stairways, doors, toilets, elevators, and site
improvements.
(i) Structural changes means those changes which alter the structure
of a historic building including, but not limited to, its bearing walls
and all types of post and beam systems in wood, steel, iron or concrete.
The definitions set forth in Sec. 1040.3 of this part, to the extent not
inconsistent with this subpart, are made applicable to and incorporated
into this subpart.
Sec. 1040.63 Discrimination prohibited.
(a) General. No qualified handicapped person shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity that receives or benefits from Federal financial assistance
from DOE.
(b) Discriminatory actions prohibited. (1) A recipient, in providing
any aid, benefit, or service, may not directly or through contractual,
licensing, or other arrangements, on the basis of handicap--
(i) Deny a qualified person the opportunity to participate in or
benefit from the aid, benefit or service;
(ii) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit,
or service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others unless the action is necessary to provide qualified
handicapped persons with aid, benefits, or services that are as
effective as those provided to others;
(v) Aid or perpetuate discrimination against a qualified handicapped
person by providing significant assistance to an agency, organization,
or person that
[[Page 750]]
discriminates on the basis of handicap in providing any aid, benefit, or
services to beneficiaries of the recipient's program;
(vi) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
(vii) Otherwise limit a qualified handicapped person in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit or service.
(2) For purposes of this part, aids, benefits, and services, to be
equally effective, are not required to produce the identical result or
level of achievement for handicapped and nonhandicapped persons, but
must afford handicapped persons equal opportunity to obtain the same
result, to gain the same benefit, or to reach the same level of
achievement in the most integrated setting appropriate to the person's
needs.
(3) Despite the existence of permissible separate or different
programs or activities, a recipient may not deny a qualified handicapped
person the opportunity to participate in programs or activities that are
not separate or different.
(4) A recipient may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration that:
(i) Have the effect of subjecting qualified handicapped persons to
discrimination on the basis of handicap;
(ii) Have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the recipient's program
with respect to handicapped persons; or
(iii) Perpetuate the discrimination of another recipient if both
recipients are subject to common administrative control or are agencies
of the same state.
(5) In determining the site of a facility, an applicant for
assistance or a recipient may not make selections that--
(i) Have the effect of excluding handicapped persons from, denying
them the benefits of, or otherwise subjecting them to discrimination
under any program or activity that receives Federal financial assistance
from DOE; or
(ii) Have the purpose or effect of defeating or substantially
impairing the accomplishment of the objectives of the program or
activity with respect to handicapped persons.
(6) As used in this section, the aid, benefit, or service provided
under a program or activity receiving or benefitting from Federal
financial assistance includes any aid, benefit, or service provided in
or through a facility that has been constructed, expanded, altered,
leased or rented, or otherwise acquired, in whole or in part, with
Federal financial assistance.
(c) Programs limited by Federal law. The exclusion of non-
handicapped persons from the benefits of a program limited by Federal
statute or Executive order to handicapped persons or the exclusion of a
specific class of handicapped persons from a program limited by Federal
statute or Executive order to a different class of handicapped persons
is not prohibited by this part.
(d) Recipients shall take appropriate steps to ensure that
communications with their applicants, employees and handicapped persons
participating in federally assisted programs of activities or receiving
aids, benefits or services, are available to persons with impaired
vision and hearing.
(e) 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.
Sec. 1040.64 Effect of State or local law or other requirements and
effect of employment opportunities.
(a) The obligation to comply with this subpart is not obviated or
alleviated by the existence of any State or local law or other
requirement that, on the basis of handicap, imposes prohibitions or
limits upon the eligibility of qualified handicapped persons to receive
services or to practice any occupation or profession.
(b) The obligation to comply with this part is not obviated or
alleviated because employment opportunities in any occupation or
profession are or may be more limited for handicapped persons than for
non-handicapped persons.
(c) Effect of other regulations. All regulations, orders, or similar
directions
[[Page 751]]
issued by any officer of DOE which impose requirements designed to
prohibit discrimination against individuals on the grounds of race,
color, national origin, sex, age or handicap under any program to which
this part applies, and which authorize the suspension, termination or
refusal to grant or to continue Federal financial assistance under any
program for failure to comply with these requirements, are superseded to
the extent that discrimination is prohibited by this part. Nothing in
this part is to relieve any person of the obligation assumed or imposed
under any superseded regulation, order, instruction, or similar
direction prior to the effective date of this part. Nothing in this part
is to supersede the effective date of this part. Nothing in this part is
to supersede Executive Orders 10925, 11114, 11063, 11246, and
regulations issued under these authorities, or supersede any other
regulations or instructions which prohibit discrimination on the ground
of race, color, national origin, sex, age, or handicap in any program or
activity to which this part does not apply.
Sec. 1040.65 Procedures.
The procedural provisions applicable to Title VI of the Civil Rights
Act of 1964 are adopted and incorporated in this section by reference.
These procedures may be found in subparts G and H of this part.
Employment Practices
Sec. 1040.66 Discrimination prohibited.
(a) General. (1) No qualified handicapped person shall, on the basis
of handicap, be subjected to discrimination employment under any program
or activity to which this subpart applies.
(2) A recipient shall make all decisions concerning employment under
any program or activity to which this part applies in a manner which
ensures that discrimination on the basis of handicap does not occur and
may not limit, segregate, or classify applicants or employees in any way
that adversely affects their opportunities or status because of
handicap.
(3) A recipient may not participate in a contractual or other
relationship that has the effect of subjecting qualified handicapped
applicants or employees to discrimination prohibited by this subpart.
The relationships referred to in this paragraph include relationships
with employment and referral agencies, labor unions, organizations
providing or administering fringe benefits to employees of the
recipient, and organizations providing training and apprenticeship
programs.
(b) Specific activities. The provisions of this subpart apply to:
(1) Recruitment, advertising, and processing of applications for
employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(3) Rates of pay or any other form of compensation and changes in
compensation;
(4) Job assignments, job classifications, organizational structures,
position descriptions, lines of progression, and seniority lists;
(5) Leaves of absence, sick or otherwise;
(6) Fringe benefits available by virtue of employment, whether
administered by the recipient or not;
(7) Selection and provision of financial support for training,
including apprenticeship, professional meetings, conferences, and other
related activities, and selection for leaves of absence to pursue
training;
(8) Employer sponsored activities, including social or recreational
programs; and
(9) Any other term, condition, or privilege of employment.
(c) A recipient's obligation to comply with this subpart is not
affected by any inconsistent term of any collective bargaining agreement
to which it is a party.
Sec. 1040.67 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified handicapped
applicant or employee unless the recipient can demonstrate that the
accommodation would impose an undue hardship on the operation of its
program.
(b) Reasonable accommodation may include:
[[Page 752]]
(1) Making facilities used by employees readily accessible to and
usable by handicapped persons; and
(2) Job restructuring, part-time or modified work schedules,
acquisition or modification of equipment or devices, the provision of
readers or interpreters, and other similar actions.
(c) In determining, under paragraph (a) of this section, whether an
accommodation would impose an undue hardship on the operation of a
recipient's program, factors to be considered include:
(1) The overall size of the recipient's program with respect to
number of employees, number and type of facilities, and size of budget;
(2) The type of the recipient's operation, including the composition
and structure of the recipient's workforce; and
(3) The nature and cost of the accommodation needed.
(d) A recipient may not deny any employment opportunity to a
qualified handicapped employee or applicant if the basis for the denial
is the need to make reasonable accommodation to the physical or mental
limitations of the employee or applicant.
Sec. 1040.68 Employment criteria.
(a) A recipient may not use any employment test or other selection
criterion that screens out or tends to screen out handicapped persons
unless the test score or other selection criterion, as used by the
recipient, is shown to be job-related for the position in question.
(b) A recipient shall select and administer tests concerning
employment to best ensure that, when administered to an applicant or
employee who has a handicap that impairs sensory, manual, or speaking
skills, the test results accurately reflect the applicant's or
employee's job skills, aptitude or other factors the test purports to
measure except where those skills are the factors that the test purports
to measure.
Sec. 1040.69 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient may not conduct a pre-employment medical examination or may
not make pre-employment inquiry of an applicant as to whether the
applicant is a handicapped person or as to the nature or severity of a
handicap. A recipient may, however, make pre-employment inquiry into an
applicant's ability to perform job-related functions.
(b) When a recipient is taking remedial action to correct the
effects of past discrimination, under Sec. 1040.7 of this part, or is
taking voluntary action to overcome the effects of conditions that
resulted in limited participation in its federally assisted program or
activity under Sec. 1040.7 of subpart A of this part, or when a
recipient is taking affirmative action under Sec. 503 of the
Rehabilitation Act of 1973, as amended, the recipient may invite
applicants for employment to indicate whether, and to what extent, they
are handicapped Provided that:
(1) The recipient states clearly on any written questionnaire used
for this purpose or makes clear orally, if no written questionnaire is
used, that the information requested is intended for use solely in
connection with its remedial action obligations or its voluntary or
affirmative action efforts; and
(2) The recipient states clearly that the information is requested
on a voluntary basis, that it will be kept confidential as provided in
paragraph (d) of this section, that refusal to provide it will not
subject the applicant or employee to any adverse treatment, and that it
will be used only in accordance with this subpart.
(c) Nothing in this section is to prohibit a recipient from
conditioning an offer of employment on the results of a medical
examination conducted prior to the employee's entrance on duty provided
that all entering employees are subjected to the examination regardless
of handicap or absence of handicap and results of the examination are
used only in accordance with the requirements of this subpart.
(d) Information obtained in accordance with this section concerning
the medical condition or history of the applicant is to be collected and
maintained on separate forms that are to be accorded confidentiality as
medical records, except that:
(1) Supervisors and managers may be informed regarding restrictions
on the work or duties of handicapped persons
[[Page 753]]
and regarding necessary accommodations;
(2) First aid and safety personnel may be informed, where
appropriate, if the condition might require emergency treatment; and
(3) Government officials investigating compliance with Sec. 504 of
the Rehabilitation Act of 1973, as amended, shall be provided relevant
information upon request.
Program Accessibility
Sec. 1040.71 Discrimination prohibited.
No handicapped person shall, because a recipient's facilities are
inaccessible to or unuseable by handicapped persons, be denied the
benefits of, be excluded from participation in, or be subjected to
discrimination under any program or activity that receives or benefits
from Federal financial assistance from DOE.
Sec. 1040.72 Existing facilities.
(a) Program accessibility. A recipient shall operate any program or
activity to which this subpart applies so that the program or activity,
when viewed in its entirety, is readily accessible and useable by
handicapped persons. This paragraph does not require a recipient to make
each of its existing facilities or every part of a facility accessible
to and useable by handicapped persons.
(b) Methods. A recipient may comply with the requirements of
paragraph (a) of this section through such means as redesign of
equipment, reassignment of classes or other services to accessible
buildings, assignment of aids to beneficiaries, home visits, delivery of
health, welfare, or other social services at alternate accessible sites,
alteration of existing facilities and construction of new facilities in
conformance with the requirements of Sec. 1040.73 or any other methods
that result in making its program or activity accessible to handicapped
persons. A recipient is not required to make structural changes in
existing facilities where other methods are effective in achieving
compliance with paragraph (a) of this section. In choosing among
available methods for meeting the requirement of paragraph (a) of this
section, a recipient shall give priority to those methods that offer
programs and activities to handicapped persons in the most integrated
setting appropriate.
(c) Time period. A recipient shall comply with the requirement of
paragraph (a) of this section within 60 days of the effective date of
this subpart except that where structural changes in facilities are
necessary, the changes are to be made as expeditiously as possible, but
in no event later than three years after the effective date of this
subpart.
(d) Transition plan. In the event that structural changes to
facilities are necessary to meet the requirement of paragraph (a) of
this section, a recipient shall develop, within 6 months of the
effective date of this subpart, a transition plan setting forth the
steps necessary to complete the changes. The plan is to be developed
with the assistance of interested persons, including handicapped persons
or organizations representing handicapped persons, and the plan is to
meet with the approval of the Director, Federally Assisted Programs
Division, Office of Equal Opportunity, DOE. A copy of the transition
plan is to be made available for public inspection. At a minimum, the
plan is to:
(1) Identify physical obstacles in the recipient's facilities that
limit the accessibility to and usability by handicapped persons of its
program or activity.
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
full program accessibility and, if the time period or the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the person responsible for implementation of the plan.
(e) Notice. The recipient shall adopt and implement procedures to
ensure that interested persons, including persons with impaired vision
or hearing, can obtain information concerning the existence and location
of services, activities, and facilities that are accessible to, and
useable by, handicapped persons.
[[Page 754]]
Sec. 1040.73 New construction.
(a) Design and construction. Each facility or part of a facility
constructed by, on behalf of, or for the use of a recipient is to be
designed and constructed in a manner that the facility or part of the
facility is readily accessible to, and useable by, handicapped persons,
if the construction was commenced after the effective date of this
subpart.
(b) Alteration. Each facility or part of a facility which is altered
by, on behalf of, or for the use of a recipient after the effective date
of this subpart in a manner that affects or could affect the usability
of the facility or part of the facility is, to the maximum extent
feasible, to be altered in a manner that the altered portion of the
facility is readily accessible to and useable by handicapped persons.
(c) Conformance with Uniform Federal Accessibility Standards. (1)
Effective as of January 18, 1991, design, construction, or alteration of
buildings in conformance with sections 3-8 of the Uniform Federal
Accessibility Standards (USAF) (appendix A to 41 CFR subpart 101-19.6)
shall be deemed to comply with the requirements of this section with
respect to those buildings. Departures from particular technical and
scoping requirements of UFAS by the use of other methods are permitted
where substantially equivalent or greater access to and usability of the
building is provided.
(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall
be interpreted to exempt from the requirements of UFAS only mechanical
rooms and other spaces that, because of their intended use, will not
require accessibility to the public or beneficiaries or result in the
employment or residence therein of persons with physical handicaps.
(3) This section does not require recipients to make building
alterations that have little likelihood of being accomplished without
removing or altering a load-bearing structural member.
[45 FR 40515, June 13, 1980, as amended at 55 FR 52138 and 52140, Dec.
19, 1990]
Sec. 1040.74 Program accessibility in historic properties.
(a) Methods to accomplish program accessibility. In the case of
historic properties, program accessibility shall mean that when programs
are viewed in their entirety, they are accessible to and usable by
handicapped persons. The recipient shall exhaust subsection (b)(1)
(methods to accomplish program accessibility without building
alterations or structural changes) before proceeding to subsection
(b)(2) (methods to accomplish program accessibility resulting in
building alterations). The recipient shall exhaust subsection (b)(2)
(methods to accomplish program accessibility resulting in building
alterations) before proceeding to subsection (b)(3) (methods to
accomplish program accessibility resulting in structural changes).
(1) Methods to accomplish program accessibility without building
alterations or structural changes. The recipient shall investigate
compliance methods which do not alter the historic character or
architectural integrity of the property and shall utilize such methods
unless such methods are ineffective in achieving accessibility. Such
methods may include, but are not limited to:
(i) Reassigning programs to accessible locations within the
facility.
(ii) Assigning persons to aid handicapped persons into or through an
otherwise inaccessible facility.
(iii) Delivering programs or activities at alternative accessible
sites operated by or available for such use by the recipient.
(iv) Adopting other innovative methods which make programs
accessible to the handicapped.
(2) Methods to accomplish program accessibility resulting in
building alterations. The recipient shall determine that program
accessibility cannot feasibly be accomplished by Methods to Accomplish
Program Accessibility without Building Alterations or Structural
Changes, subsection (b)(1) prior to utilizing building alteration as a
method of accomplishing program accessibility. Alterations must comply
with the accessibility standards adopted in these regulations. Building
alterations shall be undertaken so as not to alter or destroy
historically,
[[Page 755]]
architecturally, or culturally significant elements or features.
(3) Methods to accomplish program accessibility resulting in
structural changes. The recipient shall determine that program
accessibility cannot feasibly be accomplished by Methods to Accomplish
Program Accessibility without Building Alterations or Structural
Changes, subsection (b)(2) before considering structural changes as a
method of accomplishing program accessibility. Structural changes must
comply with the accessibility standards adopted in these regulations.
Structural changes shall be undertaken so as not to alter or destroy
historically, architecturally or culturally significant elements or
features.
(b) Modification or waiver of accessibility standards. The
applicability of the accessibility standards set forth in these
regulations may be modified or waived on a case-by-case basis, upon
application to the Director, FAPD, where the recipient can demonstrate
that, because of the nature of the activity, the provision of access
would be infeasible or would substantially impair the historic,
architectural or cultural integrity of the historic property.
(National Historic Preservation Act of 1966, Pub. L. 89-665, 80 Stat
915, 16 U.S.C. 470; 11593, 3 CFR 1971 Comp., p. 154; 36 CFR part 800)
Subpart E--Nondiscrimination on the Basis of Age--Age Discrimination Act
of 1975, as Amended
Authority: Age Discrimination Act of 1975, as amended, Pub. L. 94-
135, November 28, 1975 (43 U.S.C. 6101) et seq.; 45 CFR part 90.
Source: 50 FR 8089, Feb. 27, 1985, unless otherwise noted.
General Provisions
Sec. 1040.81 Purpose.
The purpose of these regulations is to implement the Age
Discrimination Act of 1975, as Amended, which prohibits discrimination
on the basis of age in programs or activities receiving Federal
financial assistance. In accordance with the Age Discrimination Act,
federally assisted programs and activities and recipients of Federal
funds may continue to use age distinctions and factors other than age
which meet the requirements of the Act and these regulations.
Sec. 1040.82 Application.
(a) These regulations apply to each program or activity which
receives or benefits from Federal financial assistance provided by DOE.
(b) These regulations 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.
Sec. 1040.83 Definitions.
(a) Act means the Age Discrimination Act of 1975 as amended title
III of Pub. L. 94-135, 42 U.S.C. 6101 et seq.
(b) Action means any act, activity, policy, rule, standard or method
of administration; or the use of any policy, rule, standard, or method
of administration.
(c) Age means how old a person is or the number of years from the
date of a person's birth.
(d) Age distinction means any action using age or an age-related
term (for example, ``18 or over'').
(e) Age-related term means a word or words which necessarily imply a
particular age or range of ages (for example, ``children'', ``adult'',
``older persons'', but not ``student'').
(f) Days mean calendar days.
(g) Discrimination means unlawful treatment based on age.
(h) FERC means the Federal Energy Regulatory Commission.
(i) Field Civil Rights Officer means the official in each DOE field
office with responsibility for administering DOE's Civil Rights Program
related to nondiscrimination in Federally assisted programs and
activities.
[[Page 756]]
(j) Recipient means any State or its political subdivision,
instrumentality of a State or its political subdivision, any public or
private agency, 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 an individual who is the ultimate
beneficiary of the assistance.
(k) Secretary means the Secretary, Department of Energy.
Standards for Determining Age Discrimination
Sec. 1040.84 Rules against age discrimination.
The rules stated in this section are limited by the exceptions
contained in Sec. 1040.86 and 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, or
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.
(3) The specific forms of age discrimination listed in paragraph (b)
of this section do not necessarily constitute a complete list.
Sec. 1040.85 Definitions of ``Normal Operation'' and ``Statutory
Objective''.
For purpose of Secs. 1040.86 and 1040.87, the terms normal operation
and statutory objective shall have the following meanings:
(a) Normal operation means the operation of a program or activity
without significant changes that would impair its ability to meet its
objectives.
(b) Statutory objective means any purpose of a program or activity
expressly stated in any Federal, State, or local statute or ordinance
adopted by an elected, general purpose legislative body.
Sec. 1040.86 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. 1040.84, if the 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. An action reasonably takes
into account age as a factor necessary to the normal operation of a
program or activity if:
(a) Age is used as a measure or approximation of one or more other
characteristics;
(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;
(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. 1040.87 Exceptions to the rules against age discrimination.
Reasonable factors other than age.
A recipient is permitted to take an action otherwise prohibited by
Sec. 1040.84 which is based on a factor other than age, even though that
action may have a disproportionate effect on persons of different ages.
An action may be based on a factor other than age 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. 1040.88 Remedial and affirmative action by recipients.
(a) Where a recipient is found to have discriminated on the basis of
age, the recipient shall take such remedial action as the Director,
Office of Equal
[[Page 757]]
Opportunity (OEO), considers necessary to overcome the effects of the
discrimination.
(b) Even in the absence of a finding of discrimination, a recipient
may take affirmative action to overcome the effects of conditions that
resulted in limited participation in the recipient's program or activity
on the basis of age.
(c) If a recipient operating a program which serves the elderly or
children, in addition to persons of other ages, provides special
benefits to the elderly or to children, the provision of those benefits
shall be presumed to be voluntary affirmative action provided that it
does not have the effect of excluding otherwise eligible persons from
participation in the program.
Sec. 1040.89 Burden of proof.
The burden of proving that an age distinction or other action falls
within the exceptions outlined in Secs. 1040.86 and 1040.87 is on the
recipient of Federal financial assistance.
Responsibilities of DOE Recipients
Sec. 1040.89-1 General responsibilities.
Each DOE recipient has primary responsibility to ensure that its
programs and activities are in compliance with the Act and these
regulations. A recipient also has responsibility to maintain records,
provide information, and afford access to its records to DOE, to the
extent required to determine whether it is in compliance with the Act
and these regulations.
Sec. 1040.89-2 Notice to subrecipients.
Where a recipient awards Federal financial assistance from DOE to
its subrecipients, the recipient shall provide the subrecipients written
notice of their obligations under these regulations.
Sec. 1040.89-3 Information requirements.
Each recipient shall: (a) Upon request make available to DOE
information necessary to determine whether the recipient is complying
with the Act and these regulations.
(b) Permit reasonable access by DOE, upon request, to the books,
records, accounts, and other recipient facilities and sources of
information to the extent necessary to determine whether the recipient
is in compliance with the Act and these regulations.
Investigation, Conciliation and Enforcement Procedures
Sec. 1040.89-4 Compliance reviews.
(a) DOE may conduct preaward and postaward compliance reviews of
recipients as prescribed in this part or use other similar procedures
that will permit it to investigate and correct violations of the Act and
these regulations. DOE may conduct these reviews even in the absence of
a complaint against a recipient. The review may be as comprehensive as
necessary to determine whether a violation of these regulations has
occurred.
(b) If a compliance review indicates a violation of the Act or these
regulations, DOE will attempt to achieve voluntary compliance with the
Act. If voluntary compliance cannot be achieved, DOE will arrange for
enforcement as described in Sec. 1040.89-10.
Sec. 1040.89-5 Complaints.
(a) Any person, individually or as a member of a class or on behalf
of others, may file a written complaint with DOE alleging discrimination
prohibited by the Act or these regulations. A complainant must file a
complaint within 180 days from the date he/she first had knowledge of
the alleged act of discrimination. For good cause shown, however, the
Director, Office of Equal Opportunity (OEO), may extend the time limit
for filing a complaint. Complaints may be submitted to Field Civil
Rights Officers located in DOE's field offices or to the Director, OEO,
Forrestal Building, 1000 Independence Avenue, SW., Washington, D.C.
20585.
(b) The Director, OEO, 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.
[[Page 758]]
(2) Freely permitting a complainant to add information to the
complaint to meet the requirements of a sufficient complaint.
(3) Widely disseminating information regarding the obligations of
recipients under the Act and these regulations.
(4) 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.
(5) Notifying the complainant and the recipient (or their
representatives) of their right to contact DOE for information and
assistance regarding the complaint resolution process.
(c) The Director, OEO, will refer any complaint outside the
jurisdiction of DOE to the proper Federal department or agency and will
also notify the complainant and the recipient of the referral. The
notification will contain an explanation for the referral and the name,
telephone number, and address of the Federal department or agency office
having jurisdiction over the matter complained.
Sec. 1040.89-6 Mediation.
(a) Referral of complaints for mediation. DOE will refer to the
Federal Mediation and Conciliation Service, in accordance with 45 CFR
90.43(c)(3), all complaints that:
(1) Fall within the jurisdiction of the Act and these regulations;
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 make
an informed judgment that an agreement is not possible. There must be at
least one meeting with the mediator before the Director, OEO, will
accept a judgment that an agreement is not possible. However, the
recipient and the complainant need not meet with the mediator at the
same time.
(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 the Director, OEO, DOE. DOE will take no further action
on the complaint unless the complainant or the recipient fails to comply
with the agreement.
(d) DOE will use the mediation process for a maximum of 60 days
after referring a complaint to mediation. Mediation ends if:
(1) 60 days elapse from the time the mediation agency receives the
complaint; or
(2) Prior to the end of the 60 day mediation period, an agreement is
reached; or
(3) Prior to the end of that 60 day mediation period, the mediator
determines that an agreement cannot be reached.
(e) The mediator shall return unresolved complaints to the Director,
OEO, DOE.
Sec. 1040.89-7 Investigation.
(a) Informal Investigation. (1) The Director, OEO, will review
complaints that are unresolved after mediation or are reopened because
of a violation of a mediation agreement.
(2) As part of this review, Field Civil Rights Officers will use
informal fact finding methods, including joint or separate discussions
with the complainant and recipient, to establish the facts and, if
possible, settle the complaint on terms that are mutually agreeable to
the parties.
(3) If the complaint is resolved during the informal investigation,
DOE will put the agreement in writing and have it signed by the parties
and the Director, OEO.
(4) The settlement shall not affect the operation of any other
enforcement effort of DOE, 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 Field Civil Rights Officers cannot
resolve the complaint through informal inquiry, the Director, OEO, will
assign an Investigator to conduct a formal investigation of the
complaint. If the investigation indicates a violation of the Act or
these regulations, DOE will attempt to obtain voluntary compliance. If
DOE cannot obtain voluntary compliance, it
[[Page 759]]
will begin enforcement as described in Sec. 1040.89-10 and 10 CFR part
1040, subpart H, Sec. 1040.111.
Sec. 1040.89-8 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 these
regulations; or
(b) Cooperates in any mediation, investigation, hearing, or other
part of DOE's investigation, conciliation, and enforcement process.
Sec. 1040.89-9 Compliance procedure.
(a) DOE may enforce the Act and these regulations through procedures
precribed in subpart H of DOE regulation 10 CFR part 1040--
Nondiscrimination in Federally Assisted Programs, which calls for--
(1) Termination of a recipient's Federal financial assistance from
DOE under the program or activity involved where the recipient has
violated the Act or these regulations. 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 the Federal Energy
Regulatory Commission (FERC). Therefore, cases which are settled in
mediation, or prior to a hearing, will not involve termination of a
recipient's Federal financial assistance from DOE under this section.
(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 these regulations, or under the terms of the Federal
financial assistance.
(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 of these regulations.
(b) DOE will limit any termination under Sec. 1040.89-9(a)(1) to the
particular recipient and particular program or activity DOE finds in
violation of these regulations. DOE 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 DOE.
(c) DOE will take no action under paragraph (a) until:
(1) The Director, OEO, has advised the recipient of its failure to
comply with the Act, these regulations, or the terms of the Federal
financial assistance and has determined that voluntary compliance cannot
be obtained.
(2) Thirty (30) days have elapsed after the Secretary or the
Secretary's designee 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 Secretary will file a report whenever any action is taken under
paragraph (a) of this section.
(d) DOE also may defer granting new Federal financial assistance to
a recipient when a hearing under Sec. 1040.89-10 is initiated.
(1) New Federal financial assistance from DOE includes all
assistance for which DOE 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 DOE does not include increases in funding as a result of changes,
computation of formula awards, or assistance awarded prior to the
beginning of a hearing under Sec. 1040.89-10.
(2) DOE will not defer new assistance until the recipient has
received a notice of an opportunity for a hearing under Sec. 1040.89-10.
DOE 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 and FERC. DOE will not
continue a deferral for more than 30 days after the close of the
hearing, unless the hearing resulted in a finding against the recipient.
Sec. 1040.89-10 Hearings, decisions, post-termination proceedings.
DOE procedural provisions applicable to title VI of the Civil Rights
Act of 1964 apply to DOE enforcement of these regulations. They are 10
CFR subpart H Secs. 1040.121 through 1040.124.
[[Page 760]]
Sec. 1040.89-11 Remedial action by recipients.
Where the Director, OEO, finds a recipient has discriminated on the
basis of age, the recipient shall take such remedial action as the
Director, OEO, may require to end the discrminatory practice or policy
and/or to overcome the effects of the discrimination.
Sec. 1040.89-12 Alternate funds disbursal procedure.
(a) When DOE withholds funds from a recipient under these
regulations, the Secretary or designee may disburse the withheld funds
directly to an alternate recipient(s), any public or private
organization or agency, or State or political subdivision of the State.
(b) The Secretary or designee will require any alternate recipient
to demonstrate:
(1) The ability to comply with these regulations; and
(2) The ability to achieve the goals of the Federal statute
authorizing the program or activity.
Sec. 1040.89-13 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) One hundred eighty (180) days have elapsed since the complainant
filed the complaint and DOE has made no findings with regard to the
complainant; or
(2) DOE issues any findings in favor of the recipient.
(b) If DOE fails to make a finding within 180 days or issues a
finding in favor of the recipient, the Director, OEO, will:
(1) Promptly advise the complainant 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
fees, but that the complainant must demand these costs in the complaint;
(iii) That, before commencing the action, the complainant shall give
30 days notice, by registered mail, to the Secretary of DOE, the
Secretary of the Department of Health and Human Services, the Attorney
General of the United States, and the recipient;
(iv) That the notice must state: the alleged violation of the Act
and these regulations; the relief requested; the court in which the
complainant is bringing the action; and whether or not attorney 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 of the United States.
[[Page 761]]
Appendix A to Subpart E to Part 1040--DOE Federally Assisted Programs Containing Age Distinctions
--------------------------------------------------------------------------------------------------------------------------------------------------------
Use of age/age related team
------------------------------------------------------
Statute, Name, Public Law, and Section and age distinction Conditions Establishes Describes Popular name or CFDA
U.S. Code benefits or criteria for beneficiaries or program No.
assistance participation target groups
--------------------------------------------------------------------------------------------------------------------------------------------------------
Energy Conservation and Section 413(a). The Administrator ................ ................ X Weatherization 81.042
Production Act, Title IV, Part shall develop and conduct, in Assistance Program
A; Public Law 94-385, 42 U.S.C. accordance with the purpose and for Low-Income
6861-6870. provisions of this part, a Persons.
weatherization program. In
developing and conducting such
program, the Administrator may,
in accordance with this part and
regulations promulgated under
this part, make grants (1) to
States, and (2) in accordance
with the provisions of subsection
(d), to Indian tribal
organizations to serve Native
Americans. Such grants shall be
made for the purpose of providing
financial assistance with regard
to projects designed to provide
for the weatherization of
dwelling units, particularly
those where elderly or
handicapped low-income persons
reside, in which the head of the
household is a low-income person.
Interagency Agreement between Interagency Agreement, Section 1, ................ ................ X Summer Science N/A
the United States Department of Purpose: ``The purpose of this Student Program.
Energy and the United States agreement is to provide for a
Department of Labor, transfer of funds from the
Interagency Agreement No. 99-9- Department of Labor, Employment
1656-07-11; Authority: and Training Administration
Comprehensive Employment and (ETA), Office of Youth Programs
Training Act of 1978 (CETA) (OYP) to the Department of
(Pub. L. 95-524, October 27, Energy, Directorate of
1978; 92 Stat. 1909; 29 U.S.C. Administration (AD), Office of
801), the Energy Reorganization Industrial Relations (OIR), to
Act of 1974, as amended (Pub. fund the Summer Science Student
L. 93-438, October 11, 1974; 88 Program (SSSP). The SSSP will
Stat. 1233), and the Department grant monies from DOL through DOE/
of Energy Organization Act (DOE OIR to DOE contractors to fund
Act) (Pub. L. 95-91, August 4, 480 participant slots for
1977); 91 Stat. 565; 42 U.S.C. economically disadvantaged youths
7101). in an integrated program of
career motivation and basic
academic skill enrichment. The
program is designed to motivate
economically disadvantaged and
academically talented youths to
continue their education and to
pursue energy-related careers
upon graduation from high school.
[[Page 762]]
Executive Office of the Quotation from October 23, 1979 ................ ................ X Summer Research N/A
President, Office of Science memorandum, paragraph 2, ``The Apprenticeship
and Technology Policy, objectives are to stimulate Program.
Memorandum, Subject: Research broader interest in the minority
Apprenticeships for Minority communities in careers in science
High Schoolers, dated October and engineering and to establish
23, 1979. individual working relationships
of high school students with
active researchers who may become
helpful mentors when students
need advice on college and
careers and need letters of
recommendation''.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 763]]
Subpart F--Nondiscrimination Under Title VIII of the Civil Rights Act of
1968, as Amended [Reserved]
Subpart G--Program Monitoring
Sec. 1040.101 Compliance reviews.
(a) The Director shall periodically conduct compliance reviews of
selected recipients of DOE Federal financial assistance.
(b) The Director shall seek to review those recipients which have
the most serious equal opportunity problems which cause the greatest
disparity in delivery of services on a nondiscriminatory basis.
Selection for review is to be made on the basis of the following
criteria, among others:
(1) The relative disparity between the percentage of minorities,
women, or handicapped persons, in the relevant labor market, and the
percentage of minorities, women, or handicapped persons, employed by the
recipient if employment practices are covered by this part;
(2) The percentage of individuals covered by the Age Discrimination
Act of 1975, minorities, women and handicapped persons in the population
receiving program benefits.
(3) The number and nature of discrimination complaints filed against
a recipient with DOE or other Federal agencies;
(4) The scope of the problems revealed by an investigation commenced
on the basis of a complaint filed with DOE against a recipient; and
(5) The amount of assistance provided to the recipient.
(c) After selection of a recipient for review, the Director
Federally Assisted Programs Division or the Director's designee, shall
inform the recipient of the selection. The notice shall be in writing
and posted thirty days prior to the scheduled review. The letter will
ordinarily request data pertinent to the review and advise the recipient
of:
(1) The practices to be reviewed;
(2) The programs or activities affected by the review;
(3) The opportunity to make, at any time prior to receipt of DOE's
finding, a written submission responding to DOE which explains,
validates, or otherwise addresses the practices under review; and
(4) The schedule under which the review will be conducted and a
determination of compliance or noncompliance made.
(d) Within 90 days of arriving on-site to conduct the review, the
Director, FAPD, shall advise the recipient, in writing, of:
(1) Preliminary findings;
(2) Where appropriate, recommendations for achieving voluntary
compliance; and
(3) The opportunity to request DOE to engage in voluntary compliance
negotiations prior to the Director's final determination of compliance
or noncompliance. The Director or the Director's designee shall notify
the Assistant Attorney General at the same time the recipient is
notified of any matter where recommendations for achieving voluntary
compliance are made.
(e) If, within 45 days of the recipient's notification under
paragraph (d) of this section, the Director's (FAPD) recommendations for
compliance are not met, or voluntary compliance is not secured, or the
preliminary findings are not shown to be false, the matter will be
forwarded to the Director for a determination of compliance or
noncompliance. The determination is to be made no later than 60 days
after the recipient has been notified of the preliminary findings. If
the Director makes a determination of noncompliance, the Department
shall institute actions specified in subparts G and H.
(f) Where the Director makes a formal determination of
noncompliance, the recipient and the Assistant Attorney General shall be
immediately advised, in writing, of the determination and of the fact
that the recipient has an additional 10 days in which to come into
voluntary compliance. If voluntary compliance has not been achieved
within the 10 days, the Director shall institute proceedings under
subpart H.
(g) All agreements to come into voluntary compliance shall be in
writing and signed by the Director and an official who has authority to
legally bind the recipient.
[[Page 764]]
Sec. 1040.102 Compliance information.
(a) Cooperation and assistance. Each responsible Departmental
official shall, to the fullest extent practicable, seek the cooperation
of recipients in obtaining compliance with this part and shall provide
assistance and guidance to recipients to help them comply voluntarily
with this part.
(b) Compliance reports. Each recipient shall keep reports and submit
to the responsible Department official or his/her designee, timely,
complete, and accurate compliance reports at the times, in such form,
and containing information as the responsible Department official or the
designee may determine to be necessary to enable him/her to ascertain
whether the recipient has complied or is complying with this part. In
general, recipients should have available for DOE data on program
participants, identified by race, color, national origin, sex, age and
handicap status. In the case of any program under which a primary
recipient extends Federal financial assistance to any other recipient or
subcontracts with any other person or group, such other recipient shall
also submit compliance reports to the primary recipient which will
enable the primary recipient to carry out its obligations under this
part.
(c) Access to sources of information. Each recipient shall permit
access by the responsible Department official or his/her designee during
normal business hours to books, records, personnel records, accounts,
other sources of information, and its facilities, which are pertinent to
ascertain compliance with this part. The requirement for access to
sources of information shall be contained in the certificate of
assurance and agreed to by the recipient as a condition to award.
Whenever any information required of a recipient is in the exclusive
possession of any other agency, institution, or person and that agency,
institution, or person fails or refuses to furnish that information, the
recipient shall certify this in its report and set forth the efforts
which it has made to obtain the information. The sub-recipient in such
case shall be subject to proceedings described under subpart H of this
part.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons information regarding the provisions of this section
and its applicability to the program under which the recipient receives
Federal financial assistance. Information is to be made available to
beneficiaries, participants, and other interested persons in a manner
which the responsible Department officials find necessary to inform such
persons of the protections against discrimination assured them by this
part and the statutes to which this part applies.
Sec. 1040.103 [Reserved]
Sec. 1040.104 Complaint investigation.
(a) The Director, FAPD, shall investigate complaints of
discrimination that allege a violation of--
(1) Title VI of the Civil Rights Act of 1964, Sec. 16 of the Federal
Energy Administration Act of 1974, as amended, or Sec. 401 of the Energy
Reorganization Act of 1974;
(2) Title IX of the Education Amendments of 1972, as amended;
(3) Section 504 of the Rehabilitation Act of 1973, as amended;
(4) Age Discrimination Act of 1975, as amended, (reserved in this
part);
(5) Title VIII of the Civil Rights Act of 1968, as amended,
(reserved in this part);
(6) This part; and
(7) Civil rights provisions of statutes administered pursuant to the
DOE Organization Act, Pub. L. 95-91.
(b) No complaint will be investigated if it is received by an
appropriate Departmental official more than 180 days after the date of
the alleged discrimination, unless the time for filing is extended by
the Director, FAPD, for good cause shown. Where a complaint is accepted
for investigation, the Director, FAPD, will initiate a DOE
investigation. The Director, FAPD, who is responsible for the
investigation, shall notify the complainant, in writing, if the
complaint has been accepted or rejected.
(c) The Director, FAPD, or his/her designee shall conduct
investigations of complaints as follows:
[[Page 765]]
(1) Within 35 days of receipt of a complaint, the Director, FAPD,
shall:
(i) determine whether DOE has jurisdiction under paragraphs (a) and
(b) of this section;
(ii) If jurisdiction is not found, wherever possible, refer the
complaint to the Federal agency with such jurisdiction and advise the
complainant;
(iii) If jurisdiction is found, notify the recipient alleged to be
discriminating of receipt of the complaint; and
(iv) Initiate the investigation.
(2) The investigation will ordinarily be initiated by a letter
requesting data pertinent to the complaint and advising the recipient
of:
(i) The nature of the complaint and, with the written consent of the
complainant, the identity of the complainant. The identity of the
complainant may be revealed by the Director, FAPD, OEO, without the
complainant's written consent if the Director, FAPD, OEO, determines
that such action is necessary for resolution of the complaint;
(ii) The program or activities affected by the complaint;
(iii) The opportunity to make, at any time prior to receipt of DOE's
findings, a documentary submission responding to, rebutting, or denying
the allegations made in the complaint; and
(iv) The schedule under which the complaint will be investigated and
a determination of compliance made.
(3) Within 90 days of initiating the investigation, the Director,
FAPD, shall advise the recipient, in writing of:
(i) Preliminary findings;
(ii) Where appropriate, recommendations for achieving voluntary
compliance; and
(iii) The opportunity to request DOE to engage in voluntary
compliance negotiations prior to the Director's final determination of
compliance or noncompliance. The Director or the Director's designee
shall notify the Assistant Attorney General and the recipient of any
matter where recommendations for achieving voluntary compliance are
made.
(4) If, within 45 days of the recipient's notification under
paragraph (c)(3) of this section, the Director's (FAPD) recommendations
for compliance are not met, or voluntary compliance is not secured, or
the preliminary findings are not shown to be false, the matter will be
forwarded to the Director, OEO, for a determination of compliance or
noncompliance. The determination is to be made no later than 60 days
after the recipient has been notified of the preliminary findings. If
the Director makes a determination of noncompliance, the Department
shall institute actions specified in subpart H.
(5) Where the Director makes a formal determination of
noncompliance, the recipient and the Assistant Attorney General shall be
immediately advised, in writing, of the determination and of the fact
that the recipient has an additional 10 days in which to come into
voluntary compliance. If voluntary compliance has not been achieved
within the 10 days, the Director shall institute proceedings under
subpart H. All agreements to come into voluntary compliance shall be in
writing and signed by the Director, OEO, and an official who has
authority to legally bind the recipient. The complainant shall also be
notified of any action taken including the closing of the complaint or
achievement of voluntary compliance.
(6) If the complainant or party other than the Attorney General has
filed suit in Federal or State court alleging the same discrimination
alleged in a complaint to DOE, and if during DOE's investigation, the
trial of that suit would be in progress, DOE will consult with the
Assistant Attorney General and court records to determine the need to
continue or suspend the investigation and will monitor the litigation
through the court docket and contacts with the complainant. Upon receipt
of notice that the court has made a finding of discrimination against a
recipient that would constitute a violation of this part, the DOE may
institute administrative proceedings as specified in subpart H after DOE
has advised the recipient, in writing, of an opportunity to request
voluntary compliance under this section. All agreements to come into
voluntary compliance shall be in writing and signed by the Director and
an official who has authority to legally bind the recipient.
[[Page 766]]
(7) The time limits listed in paragraphs (c)(1) through (c)(6) of
this section shall be appropriately adjusted where DOE requests another
Federal agency to act on the complaint. DOE is to monitor the progress
of the matter through liaison with the other agency. Where the request
to act does not result in timely resolution of the matter, DOE is to
institute appropriate proceedings as required by this part.
(d) 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 the laws implemented in this part or because the
complainant has made a complaint, testified, assisted, or participated
in any manner in an investigation, proceeding, or hearing under this
subpart. The identity of complainants is to be kept confidential except
as determined by the Director, FAPD, to be necessary to carry out the
purpose of this subpart, including investigations, hearings, or judicial
proceedings arising thereunder.
Subpart H--Enforcement
Means of Effecting Compliance
Sec. 1040.111 Means available.
If there appears to be a failure or threatened failure to comply
with any of the provisions of this part, and if the noncompliance or
threatened noncompliance cannot be corrected by voluntary means,
compliance with this part may be effected by the suspension, 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:
(a) Referral to the Department of Justice with a recommendation that
appropriate proceedings be brought to enforce any rights of the United
States under any law including the Civil Rights Act of 1964, other
statutes to which this part applies, or any assurance or other
contractual undertaking; and
(b) Any applicable proceeding under State or local law.
Sec. 1040.112 Noncompliance with assurances.
If an applicant fails or refuses to furnish an assurance required
under Sec. 1040.4 of subpart A of this part, or otherwise fails or
refuses to comply with a requirement imposed by this part, such as
Sec. 1040.102(c), subpart G of this part, action to refuse Federal
financial assistance shall be taken in accordance with procedures of
Sec. 1040.114 of this subpart.
Sec. 1040.113 Deferral.
DOE may defer action on pending applications for assistance in such
a case during pendency of administrative proceedings under Sec. 1040.114
of this subpart.
Sec. 1040.114 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 is to become effective until:
(a) Informational notice of the proposed order is given to the
Executive Assistant to the Secretary, if the action is contemplated
against a State or local government;
(b) The Director has advised the applicant or recipient of his/her
failure to comply and has determined that compliance cannot be secured
by voluntary means. (It will be determined by the Director that
compliance cannot be secured by voluntary means if it has not been
secured within the time periods specifically set forth by this part.)
(c) There has been an express finding on the record, after
opportunity for hearing, of a failure by the applicant or recipient to
comply with the requirement imposed by or under this part:
(d) The FERC has notified the Secretary of its finding of
noncompliance; and
(e) The expiration of 30 days after the Secretary or a designee has
filed with the committee of the House of Representatives 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, terminate, or to refuse to grant or
to continue Federal financial
[[Page 767]]
assistance is to be limited to the particular political entity or part
of that entity or other applicant or recipient to whom the finding has
been made and shall be limited in its effect to the particular program
or part of the program in which the noncompliance has been found.
Sec. 1040.115 Other means authorized by law.
No action to effect compliance by any other means authorized by law
is to be taken until--
(a) The Director has determined that compliance cannot be secured by
voluntary means;
(b) The recipient or other person has been notified by the Director,
in writing, that it has been found in formal noncompliance and that it
has 10 days before formal enforcement proceedings begin in which to
enter into a written voluntary compliance agreement.
(c) The expiration of at least ten (10) days from the mailing of the
notice to the recipient or other person.
Opportunity for Hearing
Sec. 1040.121 Notice of opportunity for hearing.
(a) Whenever an opportunity for hearing is required by
Sec. 1040.113, the Director, OEO, or his/her designee shall serve on the
applicant or recipient, by registered, certified mail, or return receipt
requested, a notice of opportunity for hearing which will:
(1) Inform the applicant or recipient of the action proposed to be
taken and of his/her right within twenty (20) days of the date of the
notice of opportunity for hearing, or another period which may be
specified in the notice, to request a hearing;
(2) Set forth the alleged item or items of noncompliance with this
part;
(3) Specify the issues;
(4) State that compliance with this part may be effected by an order
providing for the termination of or refusal to grant or to continue
assistance, as appropriate, under the program involved; and
(5) Provide that the applicant or recipient may file a written
answer with the Director, OEO, to the notice of opportunity for hearing
under oath or affirmation within twenty (20) days of its date, or
another period which may be specified in the notice.
(b) An applicant or recipient may file an answer, and waive or fail
to request a hearing, without waiving the requirement for findings of
fact and conclusions of law or the right to seek review by the FERC in
accordance with the provisions established by the FERC. At the time an
answer is filed, the applicant or recipient may also submit written
information or argument for the record if he/she does not request a
hearing.
(c) An answer or stipulation may consent to the entry of an order in
substantially the form set forth in the notice of opportunity for
hearing. The order may be entered by the General Counsel or his/her
designee. The consent of the applicant or recipient to the entry of an
order shall constitute a waiver by him/her of a right to:
(1) A hearing under Sec. 902 of title IX of the Education Amendments
of 1972, Section 602 of title VI of the Civil Rights Act of 1964,
Section 16, Section 401 and Sec. 1040.113;
(2) Findings of fact and conclusions of law; and
(3) Seek review by the FERC.
(d) The failure of an applicant or recipient to file an answer
within the period prescribed or, if the applicant or recipient requests
a hearing, his failure to appear at the hearing shall constitute a
waiver by him/her of a right to:
(1) A hearing under Section 902 of title IX of the Education
Amendments of 1972, Section 602 of title VI of the Civil Rights Act of
1964, Section 16, Section 401, and Sec. 1040.113;
(2) Conclusions of law; and
(3) Seek review by the FERC.
In the event of such a waiver, the Secretary or a designee may find the
facts on the basis of the record available and enter an order in
substantially the form set forth in the notice of opportunity for
hearing.
(e) An order entered in accordance with paragraph (c) or (d) of this
section shall constitute the final decision of DOE unless the FERC,
within forty-five (45) days after entry of the order, issues a
subsequent decision which
[[Page 768]]
shall then constitute the final decision of DOE.
(f) A copy of an order entered by the FERC official shall be mailed
to the applicant or recipient and to the complainant, if any.
Sec. 1040.122 Request for hearing or review.
Whenever an applicant or recipient requests a hearing or review in
accordance with Sec. 1040.121(a)(1) or (b), the DOE General Counsel or
his/her designee shall submit such request along with other appropriate
documents to the FERC.
Sec. 1040.123 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 to implement the requirements of the laws cited in this part, the
Secretary or a designee, in coordination with FERC may, by agreement
with 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 procedure not inconsistent with this part.
Final decision in such cases, insofar as programs subject to this part
are concerned, shall be made in accordance with procedures established
by the FERC.
Sec. 1040.124 Responsibility of the Federal Energy Regulatory
Commission.
The FERC has authority under section 402(b) of the DOE Organization
Act, Pub. L. 95-91, to promulgate regulations regarding the conduct of
hearings to deny or terminate Federal financial assistance. Rules for
conduct of hearings will be published by the FERC and will be placed in
title 18 CFR.
Judicial Review
Sec. 1040.131 Judicial review.
Final DOE actions taken under this part to withhold or terminate
Federal financial assistance are subject to judicial review under the
following laws:
(a) Title VI--Section 603 of the Civil Rights Act of 1964;
(b) Title IX--Section 903 of the Education Amendments of 1972;
(c) Section 16, Section 401, Section 504--Pub. L. 89-554, 5 U.S.C.
702;
(d) Section 419 and Section 420 of the Energy Conservation and
Production Act of 1976, as amended.
Appendix A to Part 1040--Federal Financial Assistance of the Department
of Energy to Which This Part Applies
1. Access permits. Atomic Energy Act of 1954, as amended, Sections
1, 2, 3 and 161(i), Public Law 83-703; 68 Stat. 919; 42 U.S.C. 2011-13,
2201; and Title I Section 104(c) of the Energy Reorganization Act of
1974, Public Law 93-438; 88 Stat. 1237; 42 U.S.C. 5814; Department of
Energy Organization Act, 42 U.S.C. 7101; Public Law 95-91.
2. Motion pictures film libraries. Atomic Energy Act of 1954, as
amended, Public Law 83-703, Sections 3 and 141(b), (68 Stat. 919), 42
U.S.C. 2013 and 2161; the Energy Reorganization Act of 1974, Public Law
93-438, Title I, Sections 103 and 107, (88 Stat. 1240), 42 U.S.C. 5817;
Department of Energy Organization Act, Public Law 95-91, Title I,
Section 102, and Title III, Section 301, (19 Stat. 565), 42 U.S.C. 7101;
the National Energy Extension Service Act, Title V, Public Law 95-39,
(91 Stat. 191), 42 U.S.C. 7001.
3. Granting of patent licenses. Atomic Energy Act of 1954, as
amended, Sections 156 and 161(g); Public Law 83-703; 68 Stat. 919, 42
U.S.C. 2186 and 2201; Federal Nonnuclear Energy Research and Development
Act of 1974; Section 9(f)(g)(h); Public Law 93-577; 88 Stat. 1887; 42
U.S.C. 5908(f)(g)(h); Department of Energy Organization Act, 42 U.S.C.
7101; Public Law 95-91.
4. University Laboratory Cooperative Program. Atomic Energy Act of
1954, as amended, Section 31 (a) and (b); Public Law 83-703; 68 Stat.
919; 42 U.S.C. 2051; and Title I, Section 107, of the Energy
Reorganization Act of 1974; Public Law 93-438; 88 Stat. 1240; 42 U.S.C.
5817; Department of Energy Organization Act, 42 U.S.C. 7101; Public Law
95-91.
5. Facility training institutes, short courses, and workshops on
energy and environmental subjects. Atomic Energy Act of 1954, as
amended, Section 31 (a) and (b); Public Law 83-703; 68 Stat. 919; 42
U.S.C. 2051; and Title I, Section 107, of the Energy Reorganization Act
of 1974; 42 U.S.C. 7101; Public Law 93-438; 88 Stat. 1240; 42 U.S.C.
5817; Department of Energy Organization Act, 42 U.S.C. 7101; Public Law
95-91.
[[Page 769]]
6. Reactor sharing and fuel assistance. Atomic Energy Act of 1954,
as amended, Section 31 (a) and (b), Public Law 83-703; 68 Stat. 919; 42
U.S.C. 2051; and Title I, Section 107, of the Energy Reorganization Act
of 1974; Public Law 93-438, 88 Stat. 1240; 42 U.S.C. 5817; Department of
Energy Organization Act, 42 U.S.C. 7101; Public Law 95-91.
7. Traineeships for graduate students in energy related fields.
Atomic Energy Act of 1954, as amended, Sections 31 (a) (b); Public Law
83-703; 68 Stat. 919; 42 U.S.C. 2051; and Title I, Section 107, of the
Energy Reorganization Act of 1974; Public Law 93-458; 88 Stat. 1240; 42
U.S.C. 5817; Public Law 93-409, Section 12(a); Public Law 94-163,
Section 337; Public Law 93-577, Section 4(d); Public Law 93-275, Section
5; Public Law 95-39, Title V, Section 502(7); Department of Energy
Organization Act, 42 U.S.C. 7101; Public Law 95-91.
8. Energy related laboratory equipment grants. Atomic Energy Act of
1954, as amended, Section 31 (a) and (b); Public Law 83-703; 68 Stat.
919; 42 U.S.C. 2051; and Title I, Section 107, of the Energy
Reorganization Act of 1974; Public Law 93-438; 88 Stat. 1240; 42 U.S.C.
5817; Department of Energy Organization Act, 42 U.S.C. 7101; Public Law
95-91.
9. Information services exhibits, public speakers publications,
reference and analysis. Atomic Energy Act of 1954, as amended, Section 3
and 141b; Public Law 83-703; 68 Stat. 919; 42 U.S.C. 2013 and 2161; and
Title I, Section 107, of the Energy Reorganization Act of 1974; Public
Law 93-438; 88 Stat. 1240; 42 U.S.C. 5817; Department of Energy
Organization Act, 42 U.S.C. 7101; Public Law 95-91.
10. Payments in lieu of property taxes. Atomic Energy Act of 1954,
as amended, Section 168; Public Law 83-703; 68 Stat. 919; 42 U.S.C.
2208; and Title I, Section 107, of the Energy Reorganization Act of
1974; Public Law 93-438; 88 Stat. 1240; 42 U.S.C. 5817; Department of
Energy Organization Act; 42 U.S.C. 7101; Public Law 95-91.
11. Radiological emergency assistance. Atomic Energy Act of 1954, as
amended, Public Law 83-703; 68 Stat. 919; 42 U.S.C. 2011 et seq.; and
Title I, Section 107, of the Energy Reorganization Act of 1974; Public
Law 93-438; 88 Stat. 1240; 42 U.S.C. 5817; Department of Energy
Organization Act, 42 U.S.C. 7101; Public Law 95-91.
12. Nuclear industry seminars. Atomic Energy Act of 1954, as
amended, Section 141(b); Public Law 83-703; 68 Stat. 919; 42 U.S.C.
2161, and Title I, Section 107, of the Energy Reorganization Act of
1974; Public Law 93-438, 88 Stat. 1240; 42 U.S.C. 5817; Department of
Energy Organization Act, 42 U.S.C. 7101; Public Law 95-91.
13. Work experience. Atomic Energy Act of 1954, as amended, Section
3, Public Law 83-703; 68 Stat. 919; 42 U.S.C. 2013; and Title I, Section
107, of the Energy Reorganization Act of 1974; Public Law 93-438; 88
Stat. 1240; 42 U.S.C. 5817; Department of Energy Organization Act; 42
U.S.C. 7101; Public Law 95-91.
14. Citizens: Workshops. Atomic Energy Act of 1954, as amended,
Public Law 83-703, Section 3 and 141(b), 68 Stat. 919; 42 U.S.C. 2013
and 2161; the Energy Reorganization Act of 1974; Public Law 93-438,
Title I, Section 103 and 107, 88 Stat. 1240; 42 U.S.C. 5817, Department
of Energy Organization Act, Public Law 95-91, Title I, Section 102, and
Title III, Section 301, 91 Stat. 565; 42 U.S.C. 7101; the National
Energy Extension Service Act, Title V, Public Law 95-39, 91 Stat. 191;
42 U.S.C. 7001.
15. Research and development in energy conservation. Atomic Energy
Act of 1954, as amended, Section 31; Public Law 83-703; 68 Stat. 919; 42
U.S.C. 2051; and Title I, Section 107, of the Energy Reorganization Act
of 1974; Public Law 93-438; 88 Stat. 1240; Department of Energy
Organization Act, 42 U.S.C. 7101; Public Law 95-91.
16. Energy related inventions. Section 14 of the Federal Non-Nuclear
Energy Research and Development Act of 1974; Public Law 93-577; 68 Stat.
1894; 42 U.S.C. 5913; Department of Energy Organization Act, 42 U.S.C.
7101; Public Law 95-91.
17. Research and development fission, fossil, solar, geothermal,
electric and storage systems, magnetic fusion. Amendments to the Energy
Reorganization Act of 1974 and the Atomic Energy Act of 1954; Department
of Energy Organization Act, 42 U.S.C. 7101; Public Law 95-91.
18. Energy Information Administration Clearinghouse (EIAC).
Department of Energy Organization Act, Section 205; Public Law 95-91.
19. National Energy Information Center (NEIC). Federal Energy
Administration Act of 1974, as amended, Section 20(a)(4); Public Law 93-
175; 15 U.S.C. 779; Department of Energy Organization Act, Section 301;
Public Law 95-91.
20. Grants for Offices of Consumer Services. Title II, Section 205
of the Energy Conservation and Production Act, Public Law 94-385;
Department of Energy Organization Act, 42 U.S.C. 7101; Public Law 95-91.
21. State Energy Conservation Program. Title III, Sections 361-366,
Part C of the Energy Policy and Conservation Act, Public Law 94-163; 42
U.S.C. 6321-6326; Department of Energy Organization Act, 42 U.S.C. 7101;
Public Law 95-91.
22. Weatherization Assistance Program for low income persons. Title
IV, Part A of the Energy Conservation and Production Act, Public Law 94-
385; 42 U.S.C. 6861-6870; Department of Energy Organization Act, 42
U.S.C. 7101; Public Law 95-91.
23. Supplemental State Energy Conservation Program. Title IV,
Section 432(a), Part B of the Energy Conservation and Production Act of
1976, Public Law 94-385; 42 U.S.C. 6801 et seq.; Department of Energy
Organization Act, 42 U.S.C. 7101; Public Law 95-91.
[[Page 770]]
24. Public education in energy. Atomic Energy Act of 1954, as
amended, Sections 31(a) and 31(b); Public Law 83-703; 68 Stat. 919; 42
U.S.C. 2051; and Title I, Section 107 of the Energy Reorganization Act
of 1974; Public Law 93-458; 88 Stat. 1240; 42 U.S.C. 5817; Public Law
93-409, Section 12(a); Public Law 94-163, Section 337; Public Law 93-
577, Section 4(d); Public Law 93-275, Section 5; Public Law 95-39, Title
V, Section 502(7); Department of Energy Organization Act, 42 U.S.C.
7101; Public Law 95-91.
25. Special studies and projects in energy education and training.
Atomic Energy Act of 1954, as amended, Sections 31(a) and 31(b); Public
Law 83-703; 68 Stat. 919; 42 U.S.C. 2051; and Title I, Section 107 of
the Energy Reorganization Act of 1974; Public Law 93-458; 88 Stat. 1240;
42 U.S.C. 5817; Public Law 93-409, Section 12(a); Public Law 93-163,
Section 337; Public Law 93-577, Section 4(d); Public Law 93-275, Section
5; Public Law 95-39, Title V, Section 502(7).
26. Research and development in biomedical and environmental
sciences. Atomic Energy Act of 1954, as amended, Section 31; Public Law
83-703; 68 Stat. 919; 42 U.S.C. 2051; Title I, Section 107, of the
Energy Reorganization Act of 1974; Public Law 93-438; 88 Stat. 1240; 42
U.S.C. 5817; Department of Energy Organization Act, 42 U.S.C. 7101;
Public Law 95-91.
27. Preface (Pre-Freshman and Cooperative Education for Minorities
In Engineering). Atomic Energy Act of 1954, as amended, Sections 31(a)
and 31(b); Public Law 83-703; 68 Stat. 919; 42 U.S.C. 2051; and Title I,
Section 107 of the Energy Reorganization Act of 1974; Public Law 93-458;
88 Stat. 1240; 42 U.S.C. 5817; Department of Energy Organization Act,
Public Law 95-91, Sections 102 and 203; Public Law 93-409, Section
12(a); Public Law 94-163, Section 337; Public Law 93-577, Section 4(d);
Public Law 93-275, Section 5; Public Law 95-39, Title V, Section 502(7).
28. Materials allocation. Section 104, Energy Policy and
Conservation Act (EPCA), Section 101(c) Defense Production Act of 1950,
as amended (DPA), 50 U.S.C. 2071(c), Section 7, Executive Order 11912,
April 13, 1976. Defense Mobilization Order No. 13, September 22, 1976,
41 FR 43720; Department of Commerce, Bureau of Domestic Commerce,
Delegation 4, 41 FR 52331, MA Regulations 10 CFR 216; Department of
Energy Organization Act, 42 U.S.C. 7101; Public Law 95-91.
29. Basic energy sciences, high energy and nuclear physics, and
advanced technology and assessment projects. Atomic Energy Act of 1954,
as amended, Section 31; Public Law 83-703; 68 Stat. 919; 42 U.S.C. 2051;
and Title I, Section 107, of the Energy Reorganization Act of 1974;
Public Law 93-438; 88 Stat. 1240; 42 U.S.C. 5817; Department of Energy
Organization Act; 42 U.S.C. 7101; Public Law 95-91.
30. Energy Extension Service. National Energy Extension Service Act;
Title V, Public Law 95-39; Department of Energy Organization Act, 42
U.S.C. 7101; Public Law 95-91.
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