Nondiscrimination on the Basis of Age in Programs and Activities Receiving Federal Financial Assistance From the Department of the Treasury, 47107-47112 [2017-21905]
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Federal Register / Vol. 82, No. 195 / Wednesday, October 11, 2017 / Rules and Regulations
§ 0.216 Influencing legislation or
petitioning Congress.
Except for the official handling,
through the proper channels, of matters
relating to legislation in which the
Department has an interest, employees
shall not use government time, money,
or property to petition a Member of
Congress to favor or oppose any
legislation or proposed legislation, or to
encourage others to do so. This section
does not prohibit the use of government
time by union representatives to
petition a Member of Congress to favor
or oppose any legislation or proposed
legislation, where permitted by the
terms of a collective bargaining
agreement.
Dated: October 4, 2017.
Kody H. Kinsley,
Assistant Secretary for Management.
[FR Doc. 2017–21906 Filed 10–10–17; 8:45 am]
BILLING CODE 4810–25–P
DEPARTMENT OF THE TREASURY
31 CFR Part 23
RIN 1505–AC51
Nondiscrimination on the Basis of Age
in Programs and Activities Receiving
Federal Financial Assistance From the
Department of the Treasury
Department of the Treasury.
Final rule.
AGENCY:
ACTION:
This final rule sets out the
Department of the Treasury’s (Treasury)
rules for implementing the Age
Discrimination Act of 1975, as amended
(the Act). The Act prohibits
discrimination on the basis of age in
programs and activities receiving
Federal financial assistance. The Act,
which applies to persons of all ages,
permits the use of certain age
distinctions and factors other than age
that meet the Act’s requirements. This
final rule follows publication of an
August 4, 2015, proposed rule and takes
into account the comments received.
DATES: Effective November 13, 2017.
FOR FURTHER INFORMATION CONTACT:
Mariam G. Harvey, Director, Office of
Civil Rights and Diversity, Department
of the Treasury, (202) 622–0316 (voice).
SUPPLEMENTARY INFORMATION:
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SUMMARY:
I. Background
The Age Discrimination Act of 1975,
42 U.S.C. 6101–6107 (‘‘the Act’’), which
Congress enacted as part of amendments
to the Older Americans Act (Pub. L. 94–
135, 89 Stat. 713, 728), prohibits
discrimination on the basis of age in
programs and activities receiving
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Federal financial assistance. The Civil
Rights Restoration Act of 1987 (Pub. L.
100–259, 102 Stat. 28, 31 (1988))
amended the Act and other civil rights
statutes to define ‘‘program or activity’’
to mean all of the operations of
specified entities, any part of which is
extended Federal financial assistance.
See 42 U.S.C. 6107(4).
The Act applies to discrimination at
all age levels. The Act also contains
specific exceptions that permit the use
of certain age distinctions and factors
other than age that meet the Act’s
requirements.
The Act required the former
Department of Health, Education, and
Welfare (HEW) to issue general,
government-wide regulations, setting
standards to be followed by all Federal
agencies implementing the Act. These
government-wide regulations, which
were issued on June 12, 1979 (44 FR
33768), and became effective on July 1,
1979, require each Federal agency
providing financial assistance to any
program or activity to publish proposed
regulations implementing the Act, and
to submit final agency regulations to
HEW (now the Department of Health
and Human Services (HHS)), before
publication in the Federal Register. See
45 CFR 90.31.
The Act became effective on the
effective date of HEW’s final
government-wide regulations (i.e., July
1, 1979). Treasury has enforced the
provisions of the Act since that time. As
a practical matter, the absence of
Treasury-specific age regulations has
not had an impact on Treasury’s legal
authority to enforce prohibitions against
discrimination on the basis of age in
programs or activities receiving Federal
financial assistance from Treasury.
Specifically, persons alleging age
discrimination have not been hampered
in their ability to file complaints nor has
Treasury’s Office of Civil Rights and
Diversity’s (OCRD) ability to process
these complaints been affected.
On August 4, 2015 (80 FR 46208), the
Department issued a notice of proposed
rulemaking and invited comments on all
aspects of the proposal.
II. Overview of Final Rule
This rule is designed to fulfill the
statutory and regulatory obligations of
Treasury to issue a regulation
implementing the Act that conforms to
the government-wide regulations at 45
CFR part 90. The rule carries out the
Act’s prohibition of discrimination
based on age in programs and activities
receiving financial assistance from
Treasury and provides appropriate
investigative, conciliation, and
enforcement procedures. OCRD, part of
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47107
the Office of the Assistant Secretary for
Management, will conduct Treasury
enforcement. OCRD enforces all civil
rights laws applicable to entities
receiving financial assistance from
Treasury.
The rule is not intended to alter the
legal standards found in the Act or the
government-wide regulations, which are
applicable to recipients of Federal
financial assistance from Treasury
under other statutes. Treasury does not
provide financial assistance within the
meaning of these rules merely by
disbursing a payment on behalf of
another Federal agency. The rule closely
follows the wording and format of rules
issued by other Federal agencies to
implement the Act. In particular,
Treasury modeled much of its proposal
on the agency-specific regulations
issued by HHS, the lead Federal agency
coordinating implementation of the Act
(45 CFR part 91; 47 FR 57850, Dec. 28,
1982); and the Department of Education
(ED) (34 CFR part 110; 58 FR 40194, July
27, 1993). The government-wide, HHS,
and ED rules were subjected to
extensive public scrutiny, and the
public comments were considered in
finalizing those rules. Readers may
review the HHS and ED Federal
Register publications for historical and
explanatory material regarding the Act,
the government-wide regulations, and
the provisions of the HHS and ED
implementing regulations.
In general, the final rule mirrors the
government-wide regulations at 45 CFR
part 90 and HHS’s and ED’s regulations
implementing the Act, with
modifications to aid consistency and
clarify the Treasury specific provisions.
Subpart A sets forth the rule’s purpose,
applications, and definitions. Subpart B
contains the standards for determining
age discrimination. Subpart C comprises
the duties and responsibilities of
Treasury recipients. Subpart D
establishes the procedures for
investigations, conciliation and
enforcement. For a complete discussion
of the proposal, see the August 4, 2015,
proposed rule at 80 FR 46208.
III. Summary of Public Comments and
Explanation of Revisions
Treasury received three comments on
the proposed rule which generally
supported the rule. One commenter
suggested revisions that are discussed
below.
The commenter suggested there could
be confusion in the employer
community and among employees who
may not be aware that the Age
Discrimination Act (Age Act), and the
Age Discrimination in Employment Act
(ADEA) are separate statutes with
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different purposes, procedures, and
remedies. In response to this comment,
Treasury added a reference to the Age
Act, 42 U.S.C. 6103 (c)(2) to the rule,
specifically stating that the rule does not
in any way affect the Equal Employment
Opportunity Commission’s regulations
implementing the ADEA at 29 CFR
1625, 1626, and 1627.
The commenter noted that the
proposed rule purported to apply to
programs under the Comprehensive
Employment and Training Act (CETA)
(29 U.S.C. 801, et seq.), but those
programs are no longer in effect.
Treasury has revised § 23.3(b)(2) to
eliminate the reference to CETA.
The commenter suggested that the
rule, at § 23.46(a)(2)(ii), should make
more clear that referrals will be made to
the EEOC with respect to violations of
the ADEA. Treasury edited the rule to
add specifically that referrals will be
made to the EEOC, Labor, HHS or
Education as applicable. The general
reference in § 23.46(a)(2)(ii) to any
Federal, State, or local government
agency remains since referrals could be
made to other agencies as well.
The commenter suggested that the
ADEA be added to the definitions
section in § 23.4. In response to this
comment, Treasury added the ADEA to
the definitions section.
The commenter noted that the
Supreme Court held in General
Dynamics Land Systems, Inc. v. Cline,
540 U.S. 581, 600 (2004) that ‘‘the
[ADEA] does not mean to stop an
employer from favoring an older
employee over a younger one,’’ and
suggested that Treasury consider
whether Cline warrants any revisions to
its Age Act regulation. Treasury has
reviewed the statute and case law and
has concluded that, unlike the ADEA,
the Age Act does not limit its protection
to a specific age group. The Age Act also
provides exceptions from age
discrimination requirements for normal
operation or to meet statutory objectives
of any program or activity (see §§ 23.13
and § 23.14). Therefore, Treasury did
not adopt any revisions in response to
this comment.
Another comment noted that §§ 23.13
and 23.14 discuss the defenses of 42
U.S.C. 6103(b)(1) (A) and (B), that the
defense in subparagraph (A) appears to
be functionally similar to the ‘‘bona fide
occupational qualification’’ (BFOQ)
defense set out in § 4(f)(1) of the ADEA,
29 U.S.C. 623(f)(1), and that the
language of the defense in subparagraph
(B) is identical to the ‘‘reasonable factors
other than age’’ (RFOA) defense set out
in the same ADEA section. The
commenter then noted that the EEOC
regulations at 29 CFR 1625.6 and 1625.7
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address the BFOQ and RFOA defenses
and suggested that Treasury consider
whether any points made in the EEOC’s
BFOQ or RFOA regulations should be
adapted for inclusion in the Age Act
regulation. The commenter also cited
the Supreme Court’s decision in Smith
v. City of Jackson, 544 U.S. 228 (2005),
and note that this case caused the EEOC
to revise the EEOC’s ‘‘reasonable factor
other than age’’ regulation. See 29 CFR
1625.7. It suggested that Treasury
consider whether Smith warrants a
revision of § 23.14.
Treasury considered adopting the
EEOC’s regulations for BFOQ and RFOA
under the ADEA, but the legislative
intent of the two statutes (ADEA and
Age Act) is different. The ADEA was
designed to protect older workers, while
the Age Act was intended to prohibit all
kinds of unreasonable age
discrimination. In addition, adopting
EEOC’s BFOQ and RFOA factors, and
applying them outside of the
employment arena could create
confusion with the ADEA. For these
reasons, Treasury decided not to adopt
the EEOC’s regulations for BFOQ and
RFOA for inclusion in our Age Act
regulation.
The commenter noted that §§ 23.43(c)
and 23.44(a)(3) discuss mediation
agreements and, if the settlement
purports to include rights under the
ADEA, section 7(f) of the ADEA, 29
U.S.C. 626(f), sets out specific rules for
the waiver of rights and claims under
the ADEA. See 29 CFR 1625.22.
Treasury considered this comment, but
because the regulations do not cover
employment, see § 23.3(b)(2)), Treasury
does not anticipate settlements will
include rights under the ADEA and has
made no revisions.
IV. Regulatory Procedures
Executive Order 12866
This rule is not a ’’significant
regulatory action’’ under Executive
Order 12866. Therefore, no regulatory
impact analysis has been prepared.
Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.), it is hereby
certified that this rule would not have
a significant economic impact on a
substantial number of small entities.
The rule will clarify existing
requirements for entities receiving
financial assistance from Treasury. The
requirements prohibiting age
discrimination by recipients of Federal
financial assistance that are in the Act
and the government-wide regulations
have been in effect since 1979. In
addition, entities receiving financial
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assistance from Treasury have been
expressly informed of their obligations
to comply with the Act by the offices
administering the assisted programs.
Because the rule does not substantively
change existing obligations on
recipients, but merely clarifies such
duties, Treasury certifies that the rule
will not have a significant economic
impact on a substantial number of small
entities. Consequently, a regulatory
flexibility analysis is not required.
Unfunded Mandates Reform Act
Section 202 of the Unfunded
Mandates Reform Act of 1995
(Unfunded Mandates Act) requires an
agency to prepare a budgetary impact
statement before promulgating a rule
that includes a Federal mandate that
may result in expenditure by State,
local, and tribal governments, in the
aggregate, or by the private sector, of
$100 million or more in any one year.
If a budgetary impact statement is
required, section 205 of the Unfunded
Mandates Act also requires an agency to
identify and consider a reasonable
number of regulatory alternatives before
promulgating a rule. This rule will not
result in expenditures by State, local or
tribal governments or by the private
sector of $100 million or more.
Accordingly, the Department has not
prepared a budgetary impact statement
or specifically addressed the regulatory
alternatives considered.
List of Subjects in 31 CFR Part 23
Aged, Discrimination against aged.
For the reasons stated in the
preamble, the Department of the
Treasury amends subtitle A of title 31 of
the CFR by adding part 23 to read as
follows:
PART 23—NONDISCRIMINATION ON
THE BASIS OF AGE IN PROGRAMS
AND ACTIVITIES RECEIVING
FEDERAL FINANCIAL ASSISTANCE
FROM THE DEPARTMENT OF THE
TREASURY
Subpart A—General
Sec.
23.1 What is the purpose of the Age
Discrimination Act of 1975?
23.2 What is the purpose of Treasury’s
discrimination regulations?
23.3 To what programs does this part
apply?
23.4 Definitions of terms used in this part.
Subpart B—Standards for Determining Age
Discrimination
23.11 Rules against age discrimination.
23.12 Definitions of ‘‘normal operation’’
and ‘‘statutory objective.’’
23.13 Exceptions to the rules against age
discrimination: Normal operation or
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statutory objective of any program or
activity.
23.14 Exceptions to the rules against age
discrimination: Reasonable factors other
than age.
23.15 Burden of proof.
23.16 Affirmative action by recipients.
23.17 Special benefits for children and the
elderly.
23.18 Age distinctions contained in
Treasury’s regulations.
Subpart C—Duties of Treasury Recipients
23.31 General responsibilities.
23.32 Notice to subrecipients and
beneficiaries.
23.33 Assurance of compliance and
recipient assessment of age distinctions.
23.34 Information requirements.
Subpart D—Investigations, Conciliation,
and Enforcement Procedures
23.41 Compliance reviews.
23.42 Complaints.
23.43 Mediation.
23.44 Investigation.
23.45 Prohibition against intimidation or
retaliation.
23.46 Compliance procedures.
23.47 Hearings, decisions, post-termination
proceedings.
23.48 Remedial action by recipient.
23.49 Alternate funds disbursal procedure.
23.50 Exhaustion of administrative
remedies.
Authority: Age Discrimination Act of
1975, as amended, 42 U.S.C. 6101 et seq. (45
CFR part 90)
Subpart A—General
§ 23.1 What is the purpose of the Age
Discrimination Act of 1975?
The Age Discrimination Act of 1975,
as amended, is designed to prohibit
discrimination on the basis of age in
programs or activities receiving Federal
financial assistance. The Act also
permits federally assisted programs and
activities, and recipients of Federal
funds, to continue to use certain age
distinctions and factors other than age
that meet the requirements of the Act
and these regulations.
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§ 23.2 What is the purpose of Treasury’s
age discrimination regulations?
The purpose of these regulations is to
set out Treasury’s policies and
procedures under the Age
Discrimination Act of 1975 and the
general age discrimination regulations at
45 CFR part 90. The Act and the general
regulations prohibit discrimination on
the basis of age in programs or activities
receiving Federal financial assistance.
The Act and the general regulations
permit federally assisted programs and
activities, and recipients of Federal
funds, to continue to use age
distinctions and factors other than age
that meet the requirements of the Act
and its implementing regulations. These
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regulations do not apply to actions
arising under the Age Discrimination in
Employment Act of 1967, Public Law
90–202, 29 U.S.C. 621 through 634
(ADEA), and do not in any way affect
the Equal Employment Opportunity
Commission’s regulations implementing
the ADEA at 29 CFR 1625, 1626, and
1627.
§ 23.3 To what programs does this part
apply?
(a) This part applies to any program
or activity receiving Federal financial
assistance from Treasury.
(b) The regulations in this part 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
that:
(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
to target groups in age-related terms; or
(2) Any employment practice of any
employer, employment agency, labor
organization, or any labor-management
joint apprenticeship training program.
§ 23.4
Definition of terms used in this part.
As used in these regulations, the term:
Act means the Age Discrimination Act
of 1975, as amended, 42 U.S.C. 6101–
6107.
Action means any act, activity, policy,
rule, standard, or method of
administration; or the use of any policy,
rule, standard, or method of
administration.
ADEA means the Age Discrimination
in Employment Act of 1967, which
forbids employment discrimination
against anyone 40 years of age or older.
Age means how old a person is, or the
number of years from the date of a
person’s birth.
Age distinction means any action
using age or an age-related term.
Age-related term means a word or
words that necessarily imply a
particular age or range of ages (for
example, ‘‘children,’’ ‘‘adult,’’ ‘‘older
persons,’’ but not ‘‘student’’).
Federal financial assistance means
any grant, entitlement, loan, cooperative
agreement, contract (other than a
procurement contract or a contract of
insurance or guaranty), or any other
arrangement by which Treasury
provides assistance in the form of:
(1) Funds; or
(2) Services of Federal personnel; or
(3) Real and personal property or any
interest in or use or property, including:
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(i) Transfers or leases of property for
less than fair market value or for
reduced consideration; and
(ii) Proceeds from a subsequent
transfer or lease of property if the
federal share of its fair market value is
not returned to the Federal Government.
Program or activity means all of the
operations of any entity described in
paragraphs (1) through (4) of this
definition, any part of which is
extended Federal financial assistance:
(1)(i) A department, agency, special
purpose district, or other
instrumentality of a State or of a local
government; or
(ii) The entity of such State or local
government that distributes such
assistance and each such department or
agency (and each other State or local
government entity) to which the
assistance is extended, in the case of
assistance to a State or local
government;
(2)(i) A college, university, or other
postsecondary institution, or a public
system of higher education; or
(ii) A local educational agency (as
defined in 20 U.S.C. 7801), system of
vocational education, or other school
system;
(3)(i) An entire corporation,
partnership, or other private
organization, or an entire sole
proprietorship—
(A) If assistance is extended to such
corporation, partnership, private
organization, or sole proprietorship as a
whole; or
(B) That is principally engaged in the
business of providing education, health
care, housing, social services, or parks
and recreation; or
(ii) The entire plant or other
comparable, geographically separate
facility to which Federal financial
assistance is extended, in the case of
any other corporation, partnership,
private organization, or sole
proprietorship; or
(4) Any other entity that is established
by two or more of the entities described
in paragraph (1), (2), or (3) of this
definition.
Recipient means any State or its
political subdivision, any
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 the
ultimate beneficiary of the assistance.
Secretary means the Secretary of the
Treasury, or his or her designee.
Subrecipient means any of the entities
in the definition of recipient to which a
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recipient extends or passes on Federal
financial assistance. A subrecipient is
generally regarded as a recipient of
Federal financial assistance and has all
the duties of a recipient in these
regulations.
Treasury means the United States
Department of the Treasury.
United States means the fifty states,
the District of Columbia, Puerto Rico,
the Virgin Islands, American Samoa,
Guam, Wake Island, the Trust Territory
of the Pacific Islands, the Northern
Marianas, and the territories and
possessions of the United States.
Subpart B—Standards for Determining
Age Discrimination
§ 23.11
Rules against age discrimination.
The rules stated in this section are
limited by the exceptions contained in
§§ 23.13 and 23.14.
(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 that 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.
(c) Non-exhaustive list. The specific
forms of age discrimination listed in
paragraph (b) of this section do not
necessarily constitute a complete list.
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§ 23.12 Definitions of ‘‘normal operation’’
and ‘‘statutory objective.’’
For purposes of §§ 23.13 and 23.14,
the terms ‘‘normal operation’’ and
‘‘statutory objective’’ shall have the
following meaning:
(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 statute,
State statute, or local statute or
ordinance adopted by an elected,
general purpose legislative body.
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§ 23.13 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 § 23.11,
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 or the achievement of
any statutory objective of a program or
activity, if:
(a) Age is used as a measure or
approximation of one or more other
characteristics; and
(b) The other characteristic(s) must be
measured or approximated for the
normal operation of the program or
activity to continue, or to achieve any
statutory objective of the program or
activity; and
(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.
§ 23.14 Exceptions to the rules against age
discrimination: Reasonable factors other
than age.
A recipient is permitted to take an
action otherwise prohibited by § 23.11
that 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.
§ 23.15
Burden of proof.
The burden of proving that an age
distinction or other action falls within
the exceptions outlined in §§ 23.13 and
23.14 is on the recipient of Federal
financial assistance.
§ 23.16
Affirmative action by recipient.
Even in the absence of a finding of
discrimination, a recipient may take
affirmative action to overcome the
effects of conditions that resulted in
limited participation in the recipient’s
program or activity on the basis of age.
§ 23.17 Special benefits for children and
the elderly.
If a recipient’s operation of a program
or activity provides special benefits to
the elderly or to children, such use of
age distinctions shall be presumed to be
necessary to the normal operation of the
program or activity, notwithstanding the
provisions of § 23.13.
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§ 23.18 Age distinctions contained in
Treasury regulations.
Any age distinctions contained in a
rule or regulation issued by Treasury
shall be presumed to be necessary to the
achievement of a statutory objective of
the program or activity to which the rule
or regulation applies, notwithstanding
the provisions of § 23.13.
Subpart C—Duties of Treasury
Recipients
§ 23.31
General responsibilities.
Each Treasury recipient has primary
responsibility to ensure that its
programs and activities are in
compliance with the Act and these
regulations, and shall take steps to
eliminate violations of the Act. A
recipient also has responsibility to
maintain records, provide information,
and afford Treasury access to its records
to the extent Treasury finds necessary to
determine whether the recipient is in
compliance with the Act and these
regulations.
§ 23.32 Notice to subrecipients and
beneficiaries.
(a) Where a recipient passes on
Federal financial assistance from
Treasury to subrecipients, the recipient
shall provide the subrecipients written
notice of their obligations under the Act
and these regulations.
(b) Each recipient shall make
necessary information about the Act and
these regulations available to its
program beneficiaries to inform them
about the protections against
discrimination provided by the Act and
these regulations.
§ 23.33 Assurance of compliance and
recipient assessment of age distinctions.
(a) Written assurance. Each recipient
of Federal financial assistance from
Treasury shall sign a written assurance
as specified by Treasury that it will
comply with the Act and these
regulations.
(b) Recipient assessment of age
distinctions. (1) As part of a compliance
review under § 23.41 or a complaint
investigation under § 23.44, Treasury
may require a recipient employing the
equivalent of 15 or more employees to
complete a written self-evaluation, in a
manner specified by the responsible
Department official, of any age
distinction imposed in its program or
activity receiving Federal financial
assistance from Treasury to assess the
recipient’s compliance with the Act.
(2) Whenever an assessment indicates
a violation of the Act or the Treasury
regulations, the recipient shall take
corrective action.
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§ 23.34
Information requirements.
Each recipient shall:
(a) Keep records in a form and
containing information that Treasury
determines may be necessary to
ascertain whether the recipient is
complying with the Act and these
regulations.
(b) Provide to Treasury, upon request,
information and reports that Treasury
determines are necessary to ascertain
whether the recipient is complying with
the Act and these regulations.
(c) Permit reasonable access by
Treasury to the books, records,
accounts, and other recipient facilities
and sources of information to the extent
Treasury determines is necessary to
ascertain whether the recipient is
complying with the Act and these
regulations.
Subpart D—Investigation, Conciliation,
and Enforcement Procedures
§ 23.41
Compliance reviews.
(a) Treasury may conduct compliance
reviews and pre-award reviews or use
other similar procedures that will
permit it to investigate and correct
violations of the Act and these
regulations. Treasury may conduct these
reviews even in the absence of a
complaint against a recipient. The
reviews may be as comprehensive as
necessary to determine whether a
violation of the Act or these regulations
has occurred.
(b) If a compliance review or preaward review indicates a violation of
the Act or these regulations, Treasury
will attempt to achieve voluntary
compliance. If voluntary compliance
cannot be achieved, Treasury will
arrange for enforcement as described in
§ 23.46.
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§ 23.42
Complaints.
(a) Any person, individually or as a
member of a class or on behalf of others,
may file a complaint with Treasury,
alleging discrimination prohibited by
the Act or these regulations based on an
action occurring on or after July 1, 1979.
A complainant shall file a complaint
within 180 days from the date the
complainant first had knowledge of the
alleged act of discrimination. However,
for good cause shown, Treasury may
extend this time limit.
(b) Treasury will consider the date a
complaint is filed to be the date upon
which the complaint is sufficient to be
processed.
(c) Treasury will attempt to facilitate
the filing of complaints wherever
possible, including taking the following
measures:
(1) Accepting as a sufficient
complaint any written statement that
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identifies the parties involved and the
date the complainant first had
knowledge of the alleged violation,
describes generally the action or
practice complained of, and is signed by
the complainant.
(2) Freely permitting a complainant to
add information to the complaint to
meet the requirements of a sufficient
complaint.
(3) Notifying the complainant and the
recipient of their rights and obligations
under the complaint procedure,
including the right to have a
representative at all stages of the
complaint resolution process.
(4) Notifying the complainant and the
recipient (or their representatives) of
their right to contact Treasury for
information and assistance regarding the
complaint resolution process.
(d) Treasury will notify the
complainant when the complaint falls
outside the jurisdiction of these
regulations, and will state the reason(s)
why it is outside the jurisdiction of
these regulations.
§ 23.43
Mediation.
(a) Treasury will promptly refer to a
mediation agency designated by the
Secretary of the Department of Health
and Human Services (HHS) all sufficient
complaints that:
(1) Fall within the jurisdiction of the
Act and these regulations, unless the age
distinction complained of is clearly
within an exception; and,
(2) Contain all information necessary
for further processing.
(b) Both the complainant and the
recipient shall participate in the
mediation process to the extent
necessary to reach an agreement or
make an informed judgment that an
agreement is not possible.
(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 Treasury. Treasury will
take no further action on the complaint
unless the complainant or the recipient
fails to comply with the agreement.
(d) The mediator shall protect the
confidentially of all information
obtained in the course of the mediation
process. No mediator shall testify in any
adjudicative proceeding, produce any
document, or otherwise disclose any
information obtained in the course of
the mediation process without prior
approval of the head of the mediation
agency.
(e)(1) The mediation will proceed for
a maximum of 60 days after a complaint
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47111
is filed with Treasury. Mediation ends
if:
(i) 60 days elapse from the time the
complaint is filed; or
(ii) Prior to the end of that 60-day
period, an agreement is reached; or
(iii) Prior to the end of that 60-day
period, the mediator determines that an
agreement cannot be reached.
(2) This 60-day period may be
extended by the mediator, with the
concurrence of Treasury, for not more
than 30 days if the mediator determines
that agreement likely will be reached
during such extended period.
(f) The mediator shall notify Treasury
when mediation is not successful and
Treasury will continue processing the
complaint.
§ 23.44
Investigation.
(a) Informal investigation. (1)
Treasury will investigate complaints
that are unresolved after mediation or
are reopened because of a violation of a
mediation agreement.
(2) As part of the initial investigation,
Treasury 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. Treasury may seek the
assistance of any involved State agency.
(3) Any settlement agreement will be
put in writing and the parties will sign
it.
(4) The settlement shall not affect the
operation of any other enforcement
effort of Treasury, including compliance
reviews and investigation of other
complaints that may involve the
recipient.
(5) The settlement is not a finding of
discrimination against a recipient.
(b) Formal investigation. If Treasury
cannot resolve the complaint through
informal investigation, it will begin to
develop formal findings through further
investigation of the complaint. If the
investigation indicates a violation of
these regulations, Treasury will attempt
to obtain voluntary compliance. If
Treasury cannot obtain voluntary
compliance, it will begin enforcement as
described in § 23.46
§ 23.45 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
Treasury’s investigation, conciliation,
and enforcement process.
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§ 23.46
Federal Register / Vol. 82, No. 195 / Wednesday, October 11, 2017 / Rules and Regulations
Compliance procedures.
(a) Treasury may enforce the Act and
these regulations through:
(1) Termination of a recipient’s
Federal financial assistance from
Treasury 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 an
administrative law judge.
(2) Any other means authorized by
law, including but not limited to:
(i) Referral to the Department of
Justice for proceedings to enforce any
rights of the United States or obligations
of the recipient created by the Act or
these regulations;
(ii) Referral to the Equal Employment
Opportunity Commission, Department
of Labor, the Department of Health and
Human Services, or the Department of
Education, as applicable; and
(iii) Use of any requirement of or
referral to any Federal, State, or local
government agency that will have the
effect of correcting a violation of the Act
or these regulations.
(b) Treasury will limit any
termination under paragraph (a)(1) of
this section to the particular recipient
and particular program or activity or
part of such program or activity
Treasury finds in violation of these
regulations. Treasury will not base any
part of a termination on a finding with
respect to any program or activity of the
recipient that does not receive Federal
financial assistance from Treasury.
(c) Treasury will take no action under
paragraph (a) of this section until:
(1) The Secretary has advised the
recipient of its failure to comply with
the Act and these regulations and has
determined that voluntary compliance
cannot be obtained.
(2) Thirty days have elapsed after the
Secretary has sent a written report of the
circumstances and grounds of the action
to the committees of 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) Treasury also may defer granting
new Federal financial assistance to a
recipient when a hearing under
paragraph (a)(1) of this section is
initiated.
(1) New Federal financial assistance
from Treasury includes all assistance for
which Treasury requires an application
or approval, including renewal or
continuation of existing activities, or
authorization of new activities, during
the deferral period. New Federal
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20:04 Oct 10, 2017
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financial assistance from Treasury does
not include increases in funding as a
result of changed computation of
formula awards or assistance approved
prior to the beginning of a hearing under
paragraph (a)(1) of this section.
(2) Treasury will not begin a deferral
until the recipient has received a notice
of an opportunity for a hearing under
paragraph (a)(1) of this section. Treasury
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 the Secretary. Treasury
will not continue a deferral for more
than 30 days after the close of the
hearing, unless the hearing results in a
finding against the recipient.
(3) Treasury will limit any deferral to
the particular recipient and particular
program or activity or part of such
program or activity Treasury finds in
violation of these regulations. Treasury
will not base any part of a deferral on
a finding with respect to any program or
activity of the recipient that does not,
and would not in connection with the
new funds, receive Federal financial
assistance from Treasury.
§ 23.50 Exhaustion of administrative
remedies.
Where Treasury finds a recipient has
discriminated on the basis of age in
violation of the Act or this part, the
recipient shall take any remedial action
that Treasury may require to overcome
the effects of the discrimination.
(a) A complainant may file a civil
action following the exhaustion of
administrative remedies under the Act.
Administrative remedies are exhausted
if:
(1) 180 days have elapsed since the
complainant filed the complaint and
Treasury has made no finding with
regard to the complainant; or
(2) Treasury issues any finding in
favor of the recipient.
(b) If Treasury fails to make a finding
within 180 days or issues a finding in
favor of the recipient, Treasury shall:
(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 found or transacts
business;
(ii) That a complainant prevailing in
a civil action has the right to be awarded
the costs of the action, including
reasonable attorney’s fee, 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, the Secretary of HHS, the
Attorney General of the United States,
and the recipient.
(iv) That the notice must state: The
alleged violation of the Act; the relief
requested; the court in which the
complainant is bringing the action; and
whether or not attorney’s fees are
demanded in the event the complainant
prevails; and
(v) That the complainant may not
bring an action if the same alleged
violation of the Act by the same
recipient is the subject of a pending
action in any court of the United States.
§ 23.49 Alternate funds disbursal
procedure.
Kody H. Kinsley,
Assistant Secretary for Management.
(a) When Treasury withholds funds
from a recipient under these regulations,
the Secretary may disburse the withheld
funds directly to an alternate recipient,
where appropriate: Any public or nonprofit private organization or agency, or
State or political subdivision of the
State.
(b) The Secretary 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
Federal financial assistance.
[FR Doc. 2017–21905 Filed 10–10–17; 8:45 am]
§ 23.47 Hearings, decisions, posttermination proceedings.
Treasury procedural provisions for
hearings, decisions, and posttermination proceedings applicable to
Title VI of the Civil Rights Act of 1964
and its implementing regulations within
Title 31 of the CFR shall apply to
Treasury enforcement of these
regulations.
§ 23.48
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Remedial action by recipient.
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BILLING CODE 4810–25–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2017–0963]
Drawbridge Operation Regulation;
Sacramento River, Sacramento, CA
AGENCY:
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Coast Guard, DHS.
11OCR1
Agencies
[Federal Register Volume 82, Number 195 (Wednesday, October 11, 2017)]
[Rules and Regulations]
[Pages 47107-47112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21905]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
31 CFR Part 23
RIN 1505-AC51
Nondiscrimination on the Basis of Age in Programs and Activities
Receiving Federal Financial Assistance From the Department of the
Treasury
AGENCY: Department of the Treasury.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule sets out the Department of the Treasury's
(Treasury) rules for implementing the Age Discrimination Act of 1975,
as amended (the Act). The Act prohibits discrimination on the basis of
age in programs and activities receiving Federal financial assistance.
The Act, which applies to persons of all ages, permits the use of
certain age distinctions and factors other than age that meet the Act's
requirements. This final rule follows publication of an August 4, 2015,
proposed rule and takes into account the comments received.
DATES: Effective November 13, 2017.
FOR FURTHER INFORMATION CONTACT: Mariam G. Harvey, Director, Office of
Civil Rights and Diversity, Department of the Treasury, (202) 622-0316
(voice).
SUPPLEMENTARY INFORMATION:
I. Background
The Age Discrimination Act of 1975, 42 U.S.C. 6101-6107 (``the
Act''), which Congress enacted as part of amendments to the Older
Americans Act (Pub. L. 94-135, 89 Stat. 713, 728), prohibits
discrimination on the basis of age in programs and activities receiving
Federal financial assistance. The Civil Rights Restoration Act of 1987
(Pub. L. 100-259, 102 Stat. 28, 31 (1988)) amended the Act and other
civil rights statutes to define ``program or activity'' to mean all of
the operations of specified entities, any part of which is extended
Federal financial assistance. See 42 U.S.C. 6107(4).
The Act applies to discrimination at all age levels. The Act also
contains specific exceptions that permit the use of certain age
distinctions and factors other than age that meet the Act's
requirements.
The Act required the former Department of Health, Education, and
Welfare (HEW) to issue general, government-wide regulations, setting
standards to be followed by all Federal agencies implementing the Act.
These government-wide regulations, which were issued on June 12, 1979
(44 FR 33768), and became effective on July 1, 1979, require each
Federal agency providing financial assistance to any program or
activity to publish proposed regulations implementing the Act, and to
submit final agency regulations to HEW (now the Department of Health
and Human Services (HHS)), before publication in the Federal Register.
See 45 CFR 90.31.
The Act became effective on the effective date of HEW's final
government-wide regulations (i.e., July 1, 1979). Treasury has enforced
the provisions of the Act since that time. As a practical matter, the
absence of Treasury-specific age regulations has not had an impact on
Treasury's legal authority to enforce prohibitions against
discrimination on the basis of age in programs or activities receiving
Federal financial assistance from Treasury. Specifically, persons
alleging age discrimination have not been hampered in their ability to
file complaints nor has Treasury's Office of Civil Rights and
Diversity's (OCRD) ability to process these complaints been affected.
On August 4, 2015 (80 FR 46208), the Department issued a notice of
proposed rulemaking and invited comments on all aspects of the
proposal.
II. Overview of Final Rule
This rule is designed to fulfill the statutory and regulatory
obligations of Treasury to issue a regulation implementing the Act that
conforms to the government-wide regulations at 45 CFR part 90. The rule
carries out the Act's prohibition of discrimination based on age in
programs and activities receiving financial assistance from Treasury
and provides appropriate investigative, conciliation, and enforcement
procedures. OCRD, part of the Office of the Assistant Secretary for
Management, will conduct Treasury enforcement. OCRD enforces all civil
rights laws applicable to entities receiving financial assistance from
Treasury.
The rule is not intended to alter the legal standards found in the
Act or the government-wide regulations, which are applicable to
recipients of Federal financial assistance from Treasury under other
statutes. Treasury does not provide financial assistance within the
meaning of these rules merely by disbursing a payment on behalf of
another Federal agency. The rule closely follows the wording and format
of rules issued by other Federal agencies to implement the Act. In
particular, Treasury modeled much of its proposal on the agency-
specific regulations issued by HHS, the lead Federal agency
coordinating implementation of the Act (45 CFR part 91; 47 FR 57850,
Dec. 28, 1982); and the Department of Education (ED) (34 CFR part 110;
58 FR 40194, July 27, 1993). The government-wide, HHS, and ED rules
were subjected to extensive public scrutiny, and the public comments
were considered in finalizing those rules. Readers may review the HHS
and ED Federal Register publications for historical and explanatory
material regarding the Act, the government-wide regulations, and the
provisions of the HHS and ED implementing regulations.
In general, the final rule mirrors the government-wide regulations
at 45 CFR part 90 and HHS's and ED's regulations implementing the Act,
with modifications to aid consistency and clarify the Treasury specific
provisions. Subpart A sets forth the rule's purpose, applications, and
definitions. Subpart B contains the standards for determining age
discrimination. Subpart C comprises the duties and responsibilities of
Treasury recipients. Subpart D establishes the procedures for
investigations, conciliation and enforcement. For a complete discussion
of the proposal, see the August 4, 2015, proposed rule at 80 FR 46208.
III. Summary of Public Comments and Explanation of Revisions
Treasury received three comments on the proposed rule which
generally supported the rule. One commenter suggested revisions that
are discussed below.
The commenter suggested there could be confusion in the employer
community and among employees who may not be aware that the Age
Discrimination Act (Age Act), and the Age Discrimination in Employment
Act (ADEA) are separate statutes with
[[Page 47108]]
different purposes, procedures, and remedies. In response to this
comment, Treasury added a reference to the Age Act, 42 U.S.C. 6103
(c)(2) to the rule, specifically stating that the rule does not in any
way affect the Equal Employment Opportunity Commission's regulations
implementing the ADEA at 29 CFR 1625, 1626, and 1627.
The commenter noted that the proposed rule purported to apply to
programs under the Comprehensive Employment and Training Act (CETA) (29
U.S.C. 801, et seq.), but those programs are no longer in effect.
Treasury has revised Sec. 23.3(b)(2) to eliminate the reference to
CETA.
The commenter suggested that the rule, at Sec. 23.46(a)(2)(ii),
should make more clear that referrals will be made to the EEOC with
respect to violations of the ADEA. Treasury edited the rule to add
specifically that referrals will be made to the EEOC, Labor, HHS or
Education as applicable. The general reference in Sec. 23.46(a)(2)(ii)
to any Federal, State, or local government agency remains since
referrals could be made to other agencies as well.
The commenter suggested that the ADEA be added to the definitions
section in Sec. 23.4. In response to this comment, Treasury added the
ADEA to the definitions section.
The commenter noted that the Supreme Court held in General Dynamics
Land Systems, Inc. v. Cline, 540 U.S. 581, 600 (2004) that ``the [ADEA]
does not mean to stop an employer from favoring an older employee over
a younger one,'' and suggested that Treasury consider whether Cline
warrants any revisions to its Age Act regulation. Treasury has reviewed
the statute and case law and has concluded that, unlike the ADEA, the
Age Act does not limit its protection to a specific age group. The Age
Act also provides exceptions from age discrimination requirements for
normal operation or to meet statutory objectives of any program or
activity (see Sec. Sec. 23.13 and Sec. 23.14). Therefore, Treasury
did not adopt any revisions in response to this comment.
Another comment noted that Sec. Sec. 23.13 and 23.14 discuss the
defenses of 42 U.S.C. 6103(b)(1) (A) and (B), that the defense in
subparagraph (A) appears to be functionally similar to the ``bona fide
occupational qualification'' (BFOQ) defense set out in Sec. 4(f)(1) of
the ADEA, 29 U.S.C. 623(f)(1), and that the language of the defense in
subparagraph (B) is identical to the ``reasonable factors other than
age'' (RFOA) defense set out in the same ADEA section. The commenter
then noted that the EEOC regulations at 29 CFR 1625.6 and 1625.7
address the BFOQ and RFOA defenses and suggested that Treasury consider
whether any points made in the EEOC's BFOQ or RFOA regulations should
be adapted for inclusion in the Age Act regulation. The commenter also
cited the Supreme Court's decision in Smith v. City of Jackson, 544
U.S. 228 (2005), and note that this case caused the EEOC to revise the
EEOC's ``reasonable factor other than age'' regulation. See 29 CFR
1625.7. It suggested that Treasury consider whether Smith warrants a
revision of Sec. 23.14.
Treasury considered adopting the EEOC's regulations for BFOQ and
RFOA under the ADEA, but the legislative intent of the two statutes
(ADEA and Age Act) is different. The ADEA was designed to protect older
workers, while the Age Act was intended to prohibit all kinds of
unreasonable age discrimination. In addition, adopting EEOC's BFOQ and
RFOA factors, and applying them outside of the employment arena could
create confusion with the ADEA. For these reasons, Treasury decided not
to adopt the EEOC's regulations for BFOQ and RFOA for inclusion in our
Age Act regulation.
The commenter noted that Sec. Sec. 23.43(c) and 23.44(a)(3)
discuss mediation agreements and, if the settlement purports to include
rights under the ADEA, section 7(f) of the ADEA, 29 U.S.C. 626(f), sets
out specific rules for the waiver of rights and claims under the ADEA.
See 29 CFR 1625.22. Treasury considered this comment, but because the
regulations do not cover employment, see Sec. 23.3(b)(2)), Treasury
does not anticipate settlements will include rights under the ADEA and
has made no revisions.
IV. Regulatory Procedures
Executive Order 12866
This rule is not a ''significant regulatory action'' under
Executive Order 12866. Therefore, no regulatory impact analysis has
been prepared.
Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.),
it is hereby certified that this rule would not have a significant
economic impact on a substantial number of small entities. The rule
will clarify existing requirements for entities receiving financial
assistance from Treasury. The requirements prohibiting age
discrimination by recipients of Federal financial assistance that are
in the Act and the government-wide regulations have been in effect
since 1979. In addition, entities receiving financial assistance from
Treasury have been expressly informed of their obligations to comply
with the Act by the offices administering the assisted programs.
Because the rule does not substantively change existing obligations on
recipients, but merely clarifies such duties, Treasury certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Consequently, a regulatory flexibility
analysis is not required.
Unfunded Mandates Reform Act
Section 202 of the Unfunded Mandates Reform Act of 1995 (Unfunded
Mandates Act) requires an agency to prepare a budgetary impact
statement before promulgating a rule that includes a Federal mandate
that may result in expenditure by State, local, and tribal governments,
in the aggregate, or by the private sector, of $100 million or more in
any one year. If a budgetary impact statement is required, section 205
of the Unfunded Mandates Act also requires an agency to identify and
consider a reasonable number of regulatory alternatives before
promulgating a rule. This rule will not result in expenditures by
State, local or tribal governments or by the private sector of $100
million or more. Accordingly, the Department has not prepared a
budgetary impact statement or specifically addressed the regulatory
alternatives considered.
List of Subjects in 31 CFR Part 23
Aged, Discrimination against aged.
For the reasons stated in the preamble, the Department of the
Treasury amends subtitle A of title 31 of the CFR by adding part 23 to
read as follows:
PART 23--NONDISCRIMINATION ON THE BASIS OF AGE IN PROGRAMS AND
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE FROM THE
DEPARTMENT OF THE TREASURY
Subpart A--General
Sec.
23.1 What is the purpose of the Age Discrimination Act of 1975?
23.2 What is the purpose of Treasury's discrimination regulations?
23.3 To what programs does this part apply?
23.4 Definitions of terms used in this part.
Subpart B--Standards for Determining Age Discrimination
23.11 Rules against age discrimination.
23.12 Definitions of ``normal operation'' and ``statutory
objective.''
23.13 Exceptions to the rules against age discrimination: Normal
operation or
[[Page 47109]]
statutory objective of any program or activity.
23.14 Exceptions to the rules against age discrimination: Reasonable
factors other than age.
23.15 Burden of proof.
23.16 Affirmative action by recipients.
23.17 Special benefits for children and the elderly.
23.18 Age distinctions contained in Treasury's regulations.
Subpart C--Duties of Treasury Recipients
23.31 General responsibilities.
23.32 Notice to subrecipients and beneficiaries.
23.33 Assurance of compliance and recipient assessment of age
distinctions.
23.34 Information requirements.
Subpart D--Investigations, Conciliation, and Enforcement Procedures
23.41 Compliance reviews.
23.42 Complaints.
23.43 Mediation.
23.44 Investigation.
23.45 Prohibition against intimidation or retaliation.
23.46 Compliance procedures.
23.47 Hearings, decisions, post-termination proceedings.
23.48 Remedial action by recipient.
23.49 Alternate funds disbursal procedure.
23.50 Exhaustion of administrative remedies.
Authority: Age Discrimination Act of 1975, as amended, 42
U.S.C. 6101 et seq. (45 CFR part 90)
Subpart A--General
Sec. 23.1 What is the purpose of the Age Discrimination Act of 1975?
The Age Discrimination Act of 1975, as amended, is designed to
prohibit discrimination on the basis of age in programs or activities
receiving Federal financial assistance. The Act also permits federally
assisted programs and activities, and recipients of Federal funds, to
continue to use certain age distinctions and factors other than age
that meet the requirements of the Act and these regulations.
Sec. 23.2 What is the purpose of Treasury's age discrimination
regulations?
The purpose of these regulations is to set out Treasury's policies
and procedures under the Age Discrimination Act of 1975 and the general
age discrimination regulations at 45 CFR part 90. The Act and the
general regulations prohibit discrimination on the basis of age in
programs or activities receiving Federal financial assistance. The Act
and the general regulations permit federally assisted programs and
activities, and recipients of Federal funds, to continue to use age
distinctions and factors other than age that meet the requirements of
the Act and its implementing regulations. These regulations do not
apply to actions arising under the Age Discrimination in Employment Act
of 1967, Public Law 90-202, 29 U.S.C. 621 through 634 (ADEA), and do
not in any way affect the Equal Employment Opportunity Commission's
regulations implementing the ADEA at 29 CFR 1625, 1626, and 1627.
Sec. 23.3 To what programs does this part apply?
(a) This part applies to any program or activity receiving Federal
financial assistance from Treasury.
(b) The regulations in this part 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 that:
(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 to target groups in age-
related terms; or
(2) Any employment practice of any employer, employment agency,
labor organization, or any labor-management joint apprenticeship
training program.
Sec. 23.4 Definition of terms used in this part.
As used in these regulations, the term:
Act means the Age Discrimination Act of 1975, as amended, 42 U.S.C.
6101-6107.
Action means any act, activity, policy, rule, standard, or method
of administration; or the use of any policy, rule, standard, or method
of administration.
ADEA means the Age Discrimination in Employment Act of 1967, which
forbids employment discrimination against anyone 40 years of age or
older.
Age means how old a person is, or the number of years from the date
of a person's birth.
Age distinction means any action using age or an age-related term.
Age-related term means a word or words that necessarily imply a
particular age or range of ages (for example, ``children,'' ``adult,''
``older persons,'' but not ``student'').
Federal financial assistance means any grant, entitlement, loan,
cooperative agreement, contract (other than a procurement contract or a
contract of insurance or guaranty), or any other arrangement by which
Treasury provides assistance in the form of:
(1) Funds; or
(2) Services of Federal personnel; or
(3) Real and personal property or any interest in or use or
property, including:
(i) Transfers or leases of property for less than fair market value
or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of property if
the federal share of its fair market value is not returned to the
Federal Government.
Program or activity means all of the operations of any entity
described in paragraphs (1) through (4) of this definition, any part of
which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other
State or local government entity) to which the assistance is extended,
in the case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution,
or a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) That is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity that is established by two or more of the
entities described in paragraph (1), (2), or (3) of this definition.
Recipient means any State or its political subdivision, any
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 the ultimate beneficiary of the assistance.
Secretary means the Secretary of the Treasury, or his or her
designee.
Subrecipient means any of the entities in the definition of
recipient to which a
[[Page 47110]]
recipient extends or passes on Federal financial assistance. A
subrecipient is generally regarded as a recipient of Federal financial
assistance and has all the duties of a recipient in these regulations.
Treasury means the United States Department of the Treasury.
United States means the fifty states, the District of Columbia,
Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the
Trust Territory of the Pacific Islands, the Northern Marianas, and the
territories and possessions of the United States.
Subpart B--Standards for Determining Age Discrimination
Sec. 23.11 Rules against age discrimination.
The rules stated in this section are limited by the exceptions
contained in Sec. Sec. 23.13 and 23.14.
(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 that 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.
(c) Non-exhaustive list. The specific forms of age discrimination
listed in paragraph (b) of this section do not necessarily constitute a
complete list.
Sec. 23.12 Definitions of ``normal operation'' and ``statutory
objective.''
For purposes of Sec. Sec. 23.13 and 23.14, the terms ``normal
operation'' and ``statutory objective'' shall have the following
meaning:
(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 statute, State statute, or local
statute or ordinance adopted by an elected, general purpose legislative
body.
Sec. 23.13 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. 23.11, 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 or
the achievement of any statutory objective of a program or activity,
if:
(a) Age is used as a measure or approximation of one or more other
characteristics; and
(b) The other characteristic(s) must be measured or approximated
for the normal operation of the program or activity to continue, or to
achieve any statutory objective of the program or activity; and
(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. 23.14 Exceptions to the rules against age discrimination:
Reasonable factors other than age.
A recipient is permitted to take an action otherwise prohibited by
Sec. 23.11 that 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. 23.15 Burden of proof.
The burden of proving that an age distinction or other action falls
within the exceptions outlined in Sec. Sec. 23.13 and 23.14 is on the
recipient of Federal financial assistance.
Sec. 23.16 Affirmative action by recipient.
Even in the absence of a finding of discrimination, a recipient may
take affirmative action to overcome the effects of conditions that
resulted in limited participation in the recipient's program or
activity on the basis of age.
Sec. 23.17 Special benefits for children and the elderly.
If a recipient's operation of a program or activity provides
special benefits to the elderly or to children, such use of age
distinctions shall be presumed to be necessary to the normal operation
of the program or activity, notwithstanding the provisions of Sec.
23.13.
Sec. 23.18 Age distinctions contained in Treasury regulations.
Any age distinctions contained in a rule or regulation issued by
Treasury shall be presumed to be necessary to the achievement of a
statutory objective of the program or activity to which the rule or
regulation applies, notwithstanding the provisions of Sec. 23.13.
Subpart C--Duties of Treasury Recipients
Sec. 23.31 General responsibilities.
Each Treasury recipient has primary responsibility to ensure that
its programs and activities are in compliance with the Act and these
regulations, and shall take steps to eliminate violations of the Act. A
recipient also has responsibility to maintain records, provide
information, and afford Treasury access to its records to the extent
Treasury finds necessary to determine whether the recipient is in
compliance with the Act and these regulations.
Sec. 23.32 Notice to subrecipients and beneficiaries.
(a) Where a recipient passes on Federal financial assistance from
Treasury to subrecipients, the recipient shall provide the
subrecipients written notice of their obligations under the Act and
these regulations.
(b) Each recipient shall make necessary information about the Act
and these regulations available to its program beneficiaries to inform
them about the protections against discrimination provided by the Act
and these regulations.
Sec. 23.33 Assurance of compliance and recipient assessment of age
distinctions.
(a) Written assurance. Each recipient of Federal financial
assistance from Treasury shall sign a written assurance as specified by
Treasury that it will comply with the Act and these regulations.
(b) Recipient assessment of age distinctions. (1) As part of a
compliance review under Sec. 23.41 or a complaint investigation under
Sec. 23.44, Treasury may require a recipient employing the equivalent
of 15 or more employees to complete a written self-evaluation, in a
manner specified by the responsible Department official, of any age
distinction imposed in its program or activity receiving Federal
financial assistance from Treasury to assess the recipient's compliance
with the Act.
(2) Whenever an assessment indicates a violation of the Act or the
Treasury regulations, the recipient shall take corrective action.
[[Page 47111]]
Sec. 23.34 Information requirements.
Each recipient shall:
(a) Keep records in a form and containing information that Treasury
determines may be necessary to ascertain whether the recipient is
complying with the Act and these regulations.
(b) Provide to Treasury, upon request, information and reports that
Treasury determines are necessary to ascertain whether the recipient is
complying with the Act and these regulations.
(c) Permit reasonable access by Treasury to the books, records,
accounts, and other recipient facilities and sources of information to
the extent Treasury determines is necessary to ascertain whether the
recipient is complying with the Act and these regulations.
Subpart D--Investigation, Conciliation, and Enforcement Procedures
Sec. 23.41 Compliance reviews.
(a) Treasury may conduct compliance reviews and pre-award reviews
or use other similar procedures that will permit it to investigate and
correct violations of the Act and these regulations. Treasury may
conduct these reviews even in the absence of a complaint against a
recipient. The reviews may be as comprehensive as necessary to
determine whether a violation of the Act or these regulations has
occurred.
(b) If a compliance review or pre-award review indicates a
violation of the Act or these regulations, Treasury will attempt to
achieve voluntary compliance. If voluntary compliance cannot be
achieved, Treasury will arrange for enforcement as described in Sec.
23.46.
Sec. 23.42 Complaints.
(a) Any person, individually or as a member of a class or on behalf
of others, may file a complaint with Treasury, alleging discrimination
prohibited by the Act or these regulations based on an action occurring
on or after July 1, 1979. A complainant shall file a complaint within
180 days from the date the complainant first had knowledge of the
alleged act of discrimination. However, for good cause shown, Treasury
may extend this time limit.
(b) Treasury will consider the date a complaint is filed to be the
date upon which the complaint is sufficient to be processed.
(c) Treasury will attempt to facilitate the filing of complaints
wherever possible, including taking the following measures:
(1) Accepting as a sufficient complaint any written statement that
identifies the parties involved and the date the complainant first had
knowledge of the alleged violation, describes generally the action or
practice complained of, and is signed by the complainant.
(2) Freely permitting a complainant to add information to the
complaint to meet the requirements of a sufficient complaint.
(3) Notifying the complainant and the recipient of their rights and
obligations under the complaint procedure, including the right to have
a representative at all stages of the complaint resolution process.
(4) Notifying the complainant and the recipient (or their
representatives) of their right to contact Treasury for information and
assistance regarding the complaint resolution process.
(d) Treasury will notify the complainant when the complaint falls
outside the jurisdiction of these regulations, and will state the
reason(s) why it is outside the jurisdiction of these regulations.
Sec. 23.43 Mediation.
(a) Treasury will promptly refer to a mediation agency designated
by the Secretary of the Department of Health and Human Services (HHS)
all sufficient complaints that:
(1) Fall within the jurisdiction of the Act and these regulations,
unless the age distinction complained of is clearly within an
exception; and,
(2) Contain all information necessary for further processing.
(b) Both the complainant and the recipient shall participate in the
mediation process to the extent necessary to reach an agreement or make
an informed judgment that an agreement is not possible.
(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 Treasury. Treasury will take no further action
on the complaint unless the complainant or the recipient fails to
comply with the agreement.
(d) The mediator shall protect the confidentially of all
information obtained in the course of the mediation process. No
mediator shall testify in any adjudicative proceeding, produce any
document, or otherwise disclose any information obtained in the course
of the mediation process without prior approval of the head of the
mediation agency.
(e)(1) The mediation will proceed for a maximum of 60 days after a
complaint is filed with Treasury. Mediation ends if:
(i) 60 days elapse from the time the complaint is filed; or
(ii) Prior to the end of that 60-day period, an agreement is
reached; or
(iii) Prior to the end of that 60-day period, the mediator
determines that an agreement cannot be reached.
(2) This 60-day period may be extended by the mediator, with the
concurrence of Treasury, for not more than 30 days if the mediator
determines that agreement likely will be reached during such extended
period.
(f) The mediator shall notify Treasury when mediation is not
successful and Treasury will continue processing the complaint.
Sec. 23.44 Investigation.
(a) Informal investigation. (1) Treasury will investigate
complaints that are unresolved after mediation or are reopened because
of a violation of a mediation agreement.
(2) As part of the initial investigation, Treasury 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. Treasury may seek the assistance of any involved State
agency.
(3) Any settlement agreement will be put in writing and the parties
will sign it.
(4) The settlement shall not affect the operation of any other
enforcement effort of Treasury, including compliance reviews and
investigation of other complaints that may involve the recipient.
(5) The settlement is not a finding of discrimination against a
recipient.
(b) Formal investigation. If Treasury cannot resolve the complaint
through informal investigation, it will begin to develop formal
findings through further investigation of the complaint. If the
investigation indicates a violation of these regulations, Treasury will
attempt to obtain voluntary compliance. If Treasury cannot obtain
voluntary compliance, it will begin enforcement as described in Sec.
23.46
Sec. 23.45 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 Treasury's investigation, conciliation, and enforcement
process.
[[Page 47112]]
Sec. 23.46 Compliance procedures.
(a) Treasury may enforce the Act and these regulations through:
(1) Termination of a recipient's Federal financial assistance from
Treasury 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 an administrative law
judge.
(2) Any other means authorized by law, including but not limited
to:
(i) Referral to the Department of Justice for proceedings to
enforce any rights of the United States or obligations of the recipient
created by the Act or these regulations;
(ii) Referral to the Equal Employment Opportunity Commission,
Department of Labor, the Department of Health and Human Services, or
the Department of Education, as applicable; and
(iii) Use of any requirement of or referral to any Federal, State,
or local government agency that will have the effect of correcting a
violation of the Act or these regulations.
(b) Treasury will limit any termination under paragraph (a)(1) of
this section to the particular recipient and particular program or
activity or part of such program or activity Treasury finds in
violation of these regulations. Treasury will not base any part of a
termination on a finding with respect to any program or activity of the
recipient that does not receive Federal financial assistance from
Treasury.
(c) Treasury will take no action under paragraph (a) of this
section until:
(1) The Secretary has advised the recipient of its failure to
comply with the Act and these regulations and has determined that
voluntary compliance cannot be obtained.
(2) Thirty days have elapsed after the Secretary has sent a written
report of the circumstances and grounds of the action to the committees
of 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) Treasury also may defer granting new Federal financial
assistance to a recipient when a hearing under paragraph (a)(1) of this
section is initiated.
(1) New Federal financial assistance from Treasury includes all
assistance for which Treasury 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 Treasury does not include increases
in funding as a result of changed computation of formula awards or
assistance approved prior to the beginning of a hearing under paragraph
(a)(1) of this section.
(2) Treasury will not begin a deferral until the recipient has
received a notice of an opportunity for a hearing under paragraph
(a)(1) of this section. Treasury 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 the Secretary. Treasury will not continue a deferral for
more than 30 days after the close of the hearing, unless the hearing
results in a finding against the recipient.
(3) Treasury will limit any deferral to the particular recipient
and particular program or activity or part of such program or activity
Treasury finds in violation of these regulations. Treasury will not
base any part of a deferral on a finding with respect to any program or
activity of the recipient that does not, and would not in connection
with the new funds, receive Federal financial assistance from Treasury.
Sec. 23.47 Hearings, decisions, post-termination proceedings.
Treasury procedural provisions for hearings, decisions, and post-
termination proceedings applicable to Title VI of the Civil Rights Act
of 1964 and its implementing regulations within Title 31 of the CFR
shall apply to Treasury enforcement of these regulations.
Sec. 23.48 Remedial action by recipient.
Where Treasury finds a recipient has discriminated on the basis of
age in violation of the Act or this part, the recipient shall take any
remedial action that Treasury may require to overcome the effects of
the discrimination.
Sec. 23.49 Alternate funds disbursal procedure.
(a) When Treasury withholds funds from a recipient under these
regulations, the Secretary may disburse the withheld funds directly to
an alternate recipient, where appropriate: Any public or non-profit
private organization or agency, or State or political subdivision of
the State.
(b) The Secretary 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 Federal financial assistance.
Sec. 23.50 Exhaustion of administrative remedies.
(a) A complainant may file a civil action following the exhaustion
of administrative remedies under the Act. Administrative remedies are
exhausted if:
(1) 180 days have elapsed since the complainant filed the complaint
and Treasury has made no finding with regard to the complainant; or
(2) Treasury issues any finding in favor of the recipient.
(b) If Treasury fails to make a finding within 180 days or issues a
finding in favor of the recipient, Treasury shall:
(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 found
or transacts business;
(ii) That a complainant prevailing in a civil action has the right
to be awarded the costs of the action, including reasonable attorney's
fee, 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, the Secretary of
HHS, the Attorney General of the United States, and the recipient.
(iv) That the notice must state: The alleged violation of the Act;
the relief requested; the court in which the complainant is bringing
the action; and whether or not attorney's fees are demanded in the
event the complainant prevails; and
(v) That the complainant may not bring an action if the same
alleged violation of the Act by the same recipient is the subject of a
pending action in any court of the United States.
Kody H. Kinsley,
Assistant Secretary for Management.
[FR Doc. 2017-21905 Filed 10-10-17; 8:45 am]
BILLING CODE 4810-25-P