[Title 45 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2016 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 45
Public Welfare
________________________
Part 1200 to End
Revised as of October 1, 2016
Containing a codification of documents of general
applicability and future effect
As of October 1, 2016
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
Legal Status and Use of Seals and Logos
The seal of the National Archives and Records Administration
(NARA) authenticates the Code of Federal Regulations (CFR) as
the official codification of Federal regulations established
under the Federal Register Act. Under the provisions of 44
U.S.C. 1507, the contents of the CFR, a special edition of the
Federal Register, shall be judicially noticed. The CFR is
prima facie evidence of the original documents published in
the Federal Register (44 U.S.C. 1510).
It is prohibited to use NARA's official seal and the stylized Code
of Federal Regulations logo on any republication of this
material without the express, written permission of the
Archivist of the United States or the Archivist's designee.
Any person using NARA's official seals and logos in a manner
inconsistent with the provisions of 36 CFR part 1200 is
subject to the penalties specified in 18 U.S.C. 506, 701, and
1017.
Use of ISBN Prefix
This is the Official U.S. Government edition of this publication
and is herein identified to certify its authenticity. Use of
the 0-16 ISBN prefix is for U.S. Government Publishing Office
Official Editions only. The Superintendent of Documents of the
U.S. Government Publishing Office requests that any reprinted
edition clearly be labeled as a copy of the authentic work
with a new ISBN.
U . S . G O V E R N M E N T P U B L I S H I N G O F F I C E
------------------------------------------------------------------
U.S. Superintendent of Documents Washington, DC
20402-0001
http://bookstore.gpo.gov
Phone: toll-free (866) 512-1800; DC area (202) 512-1800
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 45:
SUBTITLE B--Regulations Relating to Public Welfare
(Continued)
Chapter XII--Corporation for National and Community
Service 5
Chapter XIII--Administration for Children and
Families, Department of Health and Human Services 73
Chapter XVI--Legal Services Corporation 459
Chapter XVII--National Commission on Libraries and
Information Science 563
Chapter XVIII--Harry S. Truman Scholarship
Foundation 583
Chapter XXI--Commission of Fine Arts 603
Chapter XXIII--Arctic Research Commission 625
Chapter XXIV--James Madison Memorial Fellowship
Foundation 635
Chapter XXV--Corporation for National and Community
Service 655
Finding Aids:
Table of CFR Titles and Chapters........................ 893
Alphabetical List of Agencies Appearing in the CFR...... 913
List of CFR Sections Affected........................... 923
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 45 CFR 1201.1 refers
to title 45, part 1201,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, October 1, 2016), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not accidentally dropped due to a printing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001,
or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page vii]]
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, 8601 Adelphi Road, College Park, MD
20740-6001 or e-mail [email protected].
SALES
The Government Publishing Office (GPO) processes all sales and
distribution of the CFR. For payment by credit card, call toll-free,
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or
fax your order to 202-512-2104, 24 hours a day. For payment by check,
write to: US Government Publishing Office - New Orders, P.O. Box 979050,
St. Louis, MO 63197-9000.
ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of
CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers of the Presidents of the United
States, Compilation of Presidential Documents and the Privacy Act
Compilation are available in electronic format via www.ofr.gov. For more
information, contact the GPO Customer Contact Center, U.S. Government
Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-
mail, [email protected].
The Office of the Federal Register also offers a free service on the
National Archives and Records Administration's (NARA) World Wide Web
site for public law numbers, Federal Register finding aids, and related
information. Connect to NARA's web site at www.archives.gov/federal-
register.
The e-CFR is a regularly updated, unofficial editorial compilation
of CFR material and Federal Register amendments, produced by the Office
of the Federal Register and the Government Publishing Office. It is
available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register.
October 1, 2016.
[[Page ix]]
THIS TITLE
Title 45--Public Welfare is composed of four volumes. The parts in
these volumes are arranged in the following order: Parts 1-199, 200-499,
500-1199, and 1200 to end. Volume one (parts 1-199) contains all current
regulations issued under subtitle A--Department of Health and Human
Services. Volume two (parts 200-499) contains all current regulations
issued under subtitle B--Regulations Relating to Public Welfare, chapter
II--Office of Family Assistance (Assistance Programs), Administration
for Children and Families, Department of Health and Human Services,
chapter III--Office of Child Support Enforcement (Child Support
Enforcement Program), Administration for Children and Families,
Department of Health and Human Services, and chapter IV--Office of
Refugee Resettlement, Administration for Children and Families,
Department of Health and Human Services. Volume three (parts 500-1199)
contains all current regulations issued under chapter V--Foreign Claims
Settlement Commission of the United States, Department of Justice,
chapter VI--National Science Foundation, chapter VII--Commission on
Civil Rights, chapter VIII--Office of Personnel Management, chapter IX--
Denali Commission, chapter X--Office of Community Services,
Administration for Children and Families, Department of Health and Human
Services, and chapter XI--National Foundation on the Arts and the
Humanities. Volume four (part 1200 to end) contains all current
regulations issued under chapter XII--Corporation for National and
Community Service, chapter XIII--Administration for Children and
Families, Department of Health and Human Services, chapter XVI--Legal
Services Corporation, chapter XVII--National Commission on Libraries and
Information Science, chapter XVIII--Harry S Truman Scholarship
Foundation, chapter XXI--Commission of Fine Arts, chapter XXIII--Arctic
Research Commission, chapter XXIV--James Madison Memorial Fellowship
Foundation, and chapter XXV--Corporation for National and Community
Service. The contents of these volumes represent all of the current
regulations codified under this title of the CFR as of October 1, 2016.
For this volume, Susannah C. Hurley was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 45--PUBLIC WELFARE
(This book contains part 1200 to end)
--------------------------------------------------------------------
SUBTITLE B--Regulations Relating to Public Welfare (Continued)
Part
chapter xii--Corporation for National and Community Service. 1201
chapter xiii--Office of Human Development Services,
Department of Health and Human Services................... 1301
chapter xvi--Legal Services Corporation..................... 1600
chapter xvii--National Commission on Libraries and
Information Science....................................... 1700
chapter xviii--Harry S. Truman Scholarship Foundation....... 1800
chapter xxi--Commission of Fine Arts........................ 2101
chapter xxiii--Arctic Research Commission................... 2301
chapter xxiv--James Madison Memorial Fellowship Foundation.. 2400
chapter xxv--Corporation for National and Community Service. 2505
[[Page 3]]
SUBTITLE B--Regulations Relating to Public Welfare (Continued)
[[Page 5]]
CHAPTER XII--CORPORATION FOR NATIONAL AND COMMUNITY SERVICE
--------------------------------------------------------------------
Part Page
1200 [Reserved]
1201 Production or disclosure of official
information in response to court orders,
subpoenas, notices of depositions,
requests for admissions,
interrogatories, or in connection with
Federal or State litigation............. 7
1203 Nondiscrimination in federally assisted
programs--Effectuation of title VI of
the Civil Rights Act of 1964............ 11
1206 Grants and contracts--Suspension and
termination and denial of application
for refunding........................... 20
1210-1211 [Reserved]
1212
Volunteer agencies procedures for National grant volunteers [Reserved]
1214 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by ACTION.......... 31
1216 Nondisplacement of employed workers and
nonimpairment of contracts for service.. 36
1217-1219 [Reserved]
1220 Payment of volunteer legal expenses......... 37
1222 [Reserved]
1225 Volunteer discrimination complaint procedure 40
1226 Prohibitions on electoral and lobbying
activities.............................. 47
1230 New restrictions on lobbying................ 50
1232 Nondiscrimination on basis of handicap in
programs or activities receiving Federal
financial assistance.................... 62
1233 Intergovernmental review of ACTION programs. 69
1235 Locally generated contributions in Older
American Volunteer Programs............. 71
1236-1299 [Reserved]
[[Page 7]]
PART 1200 [RESERVED]
PART 1201_PRODUCTION OR DISCLOSURE OF OFFICIAL INFORMATION
IN RESPONSE TO COURT ORDERS, SUBPOENAS, NOTICES OF DEPOSITIONS,
REQUESTS FOR ADMISSIONS INTERROGATORIES, OR IN CONNECTION WITH
FEDERAL OR STATE LITIGATION--Table of Contents
Sec.
1201.1 Definitions.
1201.2 Scope.
1201.3 Service of summonses and complaints.
1201.4 Service of subpoenas, court orders, and other demands or requests
for official information or action.
1201.5 Testimony and production of documents prohibited unless approved
by appropriate Corporation officials.
1201.6 Procedure when testimony or production of documents is sought.
1201.7 Procedure when response is required prior to receiving
instructions.
1201.8 Procedure in the event of an adverse ruling.
1201.9 Considerations in determining whether the Corporation will comply
with a demand or request.
1201.10 Prohibition on providing expert or opinion testimony.
1201.11 Authority.
Authority: 42 U.S.C. 12501 et seq.
Source: 63 FR 4598, Jan. 30, 1998, unless otherwise noted.
Sec. 1201.1 Definitions.
(a) Corporation Employee means the Chief Executive Officer of the
Corporation and all employees, former employees, National Civilian
Community Corps Members (hereinafter sometimes known as ``Corps
Members''), and VISTA Volunteers (hereinafter sometimes also known as
``AmeriCorps*VISTA Members''), who are or were subject to the
supervision, jurisdiction, or control of the Chief Executive Officer,
except as the Corporation may otherwise determine in a particular case.
(b) Litigation encompasses all pre-trial, trial, and post-trial
stages of all judicial or administrative actions, hearings,
investigations, or similar proceedings before courts, commissions,
boards, or other judicial or quasi-judicial bodies or tribunals, whether
criminal, civil, or administrative in nature.
(c) Official Information means all information of any kind, however
stored, that is in the custody and control of the Corporation, relates
to information in the custody and control of the Corporation, or was
acquired by individuals connected with the Corporation as part of their
official status within the Corporation while such individuals are
employed by, or serve on behalf of, the Corporation.
Sec. 1201.2 Scope.
(a) This part states the procedures followed with respect to:
(1) Service of summonses and complaints or other requests or demands
directed to the Corporation or to any Corporation employee in connection
with Federal or State litigation arising out of, or involving the
performance of, official activities of the Corporation; and
(2) Oral or written disclosure, in response to subpoenas, orders, or
other requests or demands from Federal or by State judicial or quasi-
judicial authority, whether civil or criminal, or in response to
requests for depositions, affidavits, admissions, responses to
interrogatories, document production, or other litigation-related
matters of:
(i) Any material contained in the files of the Corporation; or
(ii) Any information acquired:
(A) When the subject of the request is currently a Corporation
employee or was a Corporation employee; or
(B) As part of the performance of the person's duties or by virtue
of the person's position.
(b) Sections 1201.3 through 1201.10 do not apply to:
(1) Testimony or records provided in accordance with the Office of
Personnel Management regulations implementing 5 U.S.C. 6322.
(2) Requests for, and release of, records under the Freedom of
Information Act, 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a.
(3) Disclosures to the Office of Inspector General or requests by
the Office of Inspector General for official information or records.
(c) The procedures in this part apply to Corporation employees and
official
[[Page 8]]
information within the Corporation Office of Inspector General. However,
any determinations or other actions to be made by the General Counsel
under this part, relating to employees or official information within
the Office of Inspector General, shall be made by the Inspector General.
[63 FR 4598, Jan. 30, 1998, as amended at 63 FR 64199, Nov. 19, 1998]
Sec. 1201.3 Service of summonses and complaints.
(a) Only the Corporation's General Counsel or his/her designee
(hereinafter ``General Counsel''), is authorized to receive and accept
summonses or complaints sought to be served upon the Corporation or its
employees. All such documents should be delivered or addressed to
General Counsel, Corporation for National and Community Service, 250 E
Street SW., Washington, DC 20525.
(b) In the event any summons or complaint is delivered to a
Corporation Employee other than in the manner specified in this part,
such attempted service shall be ineffective, and the recipient thereof
shall either decline to accept the proffered service or return such
document under cover of a written communication that refers the person
attempting to effect service to the procedures set forth in this part.
(c) Except as otherwise provided in Sec. 1201.4(c), the Corporation
is not an authorized agent for service of process with respect to civil
litigation against Corporation Employees purely in their personal, non-
official capacity. Copies of summonses or complaints directed to
Corporation Employees in connection with legal proceedings arising out
of the performance of official duties may, however, be served upon the
General Counsel.
[63 FR 4598, Jan. 30, 1998, as amended at 81 FR 12600, Mar. 10, 2016]
Sec. 1201.4 Service of subpoenas, court orders, and other demands or
requests for official information or action.
(a) Except in cases in which the Corporation is represented by legal
counsel who have entered an appearance or otherwise given notice of
their representation, only the General Counsel is authorized to receive
and accept subpoenas, or other demands or requests directed to any
component of the Corporation or Corporation Employees, whether civil or
criminal in nature, for:
(1) Material, including documents, contained in the files of the
Corporation;
(2) Information, including testimony, affidavits, declarations,
admissions, response to interrogatories, or informal statements,
relating to material contained in the files of the Corporation or which
any Corporation employee acquired in the course and scope of the
performance of official duties;
(3) Garnishment or attachment of compensation of Corporation
Employees; or
(4) The performance or non-performance of any official Corporation
duty.
(b) In the event that any subpoena, demand, or request is sought to
be delivered to a Corporation Employee other than in the manner
prescribed in paragraph (a) of this section, such attempted service
shall be ineffective. Such Corporation Employee shall, after
consultation with the General Counsel, decline to accept the subpoena,
and demand or request the return of it under cover of a written
communication referring to the procedures prescribed in this part.
(c) Except as otherwise provided in this part, the Corporation is
not an agent for service or otherwise authorized to accept on behalf of
Corporation Employees any subpoenas, show-cause orders, or similar
compulsory process of federal or state courts, or requests from private
individuals or attorneys, which are not related to the employees'
official duties except upon the express, written authorization of the
individual Corporation Employee to whom such demand or request is
directed.
(d) Acceptance of such documents by the General Counsel does not
constitute a waiver of any defenses that might otherwise exist with
respect to service under the Federal Rules of Civil or Criminal
Procedure at 28 U.S.C. Appendix, Rules 4-6 or 18 USC Appendix or other
applicable rules.
[[Page 9]]
Sec. 1201.5 Testimony and production of documents prohibited unless
approved by appropriate Corporation officials.
(a) Unless authorized to do so by the General Counsel, no
Corporation Employee shall, in response to a demand or request in
connection with any litigation, whether criminal or civil, provide oral
or written testimony by deposition, declaration, affidavit, or otherwise
concerning any information acquired:
(1) While such person was a Corporation Employee;
(2) As part of the performance of that person's official duties; or
(3) By virtue of that person's official status.
(b) No Corporation Employee shall, in response to a demand or
request in connection with any litigation, produce for use at such
proceedings any document or any other material acquired as part of the
performance of that individual's duties or by virtue of that
individual's official status, unless authorized to do so by the General
Counsel.
Sec. 1201.6 Procedure when testimony or production of documents
is sought.
(a) If Official Information is sought, either through testimony or
otherwise, the party seeking such information must (except as otherwise
required by federal law or authorized by the General Counsel) set forth
in writing with as much specificity as possible, the nature and
relevance of the Official Information sought. The party must identify
the record or reasonably describe it in terms of date, format, subject
matter, the offices originating or receiving the record, and the names
of all persons to whom the record is known to relate. Corporation
Employees may produce, disclose, release, comment upon, or testify
concerning only those matters that were specified in writing and
properly approved by the General Counsel. The General Counsel may waive
this requirement in appropriate circumstances.
(b) To the extent it deems necessary or appropriate, the Corporation
may also require from the party seeking such testimony or documents a
schedule of all reasonably foreseeable demands, including but not
limited to the names of all current and former Corporation Employees
from whom discovery will be sought, areas of inquiry, expected duration
of proceedings requiring oral testimony, and identification of
potentially relevant documents.
(c) The General Counsel will notify the Corporation Employee and
such other persons as circumstances may warrant of the decision
regarding compliance with the request or demand.
(d) The General Counsel will consult with the Department of Justice
regarding legal representation for Corporation Employees in appropriate
cases.
Sec. 1201.7 Procedure when response to demand is required prior to
receiving instructions.
(a) If a response to a demand or request for Official Information
pursuant to litigation is required before the General Counsel renders a
decision, the Corporation will request that either a Department of
Justice attorney or a Corporation attorney designated for the purpose:
(1) Appear, if feasible, with the employee upon whom the demand has
been made;
(2) Furnish the court or other authority with a copy of the
regulations contained in this part;
(3) Inform the court or other authority that the demand or request
has been or is being, as the case may be, referred for the prompt
consideration of the General Counsel; and
(4) Respectfully request the court or authority to stay the demand
or request pending receipt of the requested instructions.
(b) In the event that an immediate demand or request for production
or disclosure is made in circumstances that would preclude the proper
designation or appearance of a Department of Justice or Corporation
attorney on behalf of the Corporation employee, the Corporation Employee
shall respectfully request the court or other authority for a reasonable
stay of proceedings for the purpose of obtaining instructions from the
Corporation.
[[Page 10]]
Sec. 1201.8 Procedure in the event of an adverse ruling.
If the court or other authority declines to stay the effect of the
demand or request in response to a request made pursuant to Sec.
1201.7, or if the court or other authority rules that the demand or
request must be complied with irrespective of the Corporation's
instructions not to produce the material or disclose the information
sought, the Corporation Employee upon whom the demand or request has
been made shall, if so directed by the General Counsel, respectfully
decline to comply with the demand or request, citing United States ex
rel. Touhy v. Ragen, 340 U.S. 462 (1951), and the regulations in this
part.
Sec. 1201.9 Considerations in determining whether the Corporation
will comply with a demand or request.
(a) In deciding whether to comply with a demand or request,
Corporation officials and attorneys are encouraged to consider:
(1) Whether such compliance would be unduly burdensome or otherwise
inappropriate under the applicable rules of discovery or the rules of
procedure governing the case or matter in which the demand arose;
(2) Whether compliance is appropriate under the relevant substantive
law concerning privilege or disclosure of information;
(3) The public interest;
(4) The need to conserve the time of Corporation Employees for the
conduct of official business;
(5) The need to avoid spending the time and money of the United
States for private purposes;
(6) The need to maintain impartiality between private litigants in
cases where a government interest is not implicated;
(7) Whether compliance would have an adverse effect on performance
by the Corporation of its mission and duties; and
(8) The need to avoid involving the Corporation in controversial
issues not related to its mission.
(b) Among those demands and requests in response to which compliance
may not ordinarily be authorized are those when compliance would:
(1) Violate a statute, a rule of procedure, a specific regulation,
or an executive order;
(2) Reveal information properly classified in the interest of
national security;
(3) Reveal confidential commercial or financial information or trade
secrets without the owner's consent;
(4) Reveal the internal deliberative processes of the Executive
Branch; or
(5) Potentially impede or prejudice an ongoing law enforcement
investigation.
Sec. 1201.10 Prohibition on providing expert or opinion testimony.
(a) Except as provided in this section, Corporation Employees shall
not provide opinion or expert testimony based upon information that they
acquired in the scope and performance of their official Corporation
duties, except on behalf of the United States or a party represented by
the Department of Justice.
(b) Upon a showing by the requester of exceptional need or unique
circumstances and that the anticipated testimony will not be adverse to
the interests of the United States, the General Counsel, in the exercise
of discretion, may grant special, written authorization for Corporation
Employees to appear and testify as expert witnesses at no expense to the
United States.
(c) If, despite the final determination of the General Counsel, a
court of competent jurisdiction or other appropriate authority orders
the appearance and expert or opinion testimony of a Corporation Employee
such individual shall immediately inform the General Counsel of such
order. If the General Counsel determines that no further legal review of
or challenge to the court's order will be made, the Corporation Employee
shall comply with the order. If so directed by the General Counsel,
however, the individual shall respectfully decline to testify.
Sec. 1201.11 Authority.
The Corporation receives authority to change its governing
regulations from the National and Community Service Act of 1990 as
amended (42 U.S.C. 12501 et seq.).
[[Page 11]]
PART 1203_NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS_EFFECTUATION
OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964--Table of Contents
Sec.
1203.1 Purpose.
1203.2 Application of this part.
1203.3 Definitions.
1203.4 Discrimination prohibited.
1203.5 Assurances required.
1203.6 Compliance information.
1203.7 Conduct of investigations.
1203.8 Procedure for effecting compliance.
1203.9 Hearings.
1203.10 Decisions and notices.
1203.11 Judicial review.
1203.12 Effect on other regulations, forms, and instructions.
Appendix A to Part 1203--Programs to Which This Part Applies
Appendix B to Part 1203--Programs to Which This Part Applies When a
Primary Objective of the Federal Financial Assistance Is To
Provide Employment
Authority: Sec. 602, 78 Stat. 252; 42 U.S.C. 2000d-1.
Source: 39 FR 27322, July 26, 1974, unless otherwise noted.
Sec. 1203.1 Purpose.
The purpose of this part is to effectuate the provisions of title VI
of the Civil Rights Act of 1964 (hereafter referred to as title VI), to
the end that a person in the United States shall not, on the ground of
race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under a program or activity receiving Federal financial assistance from
ACTION.
Sec. 1203.2 Application of this part.
(a) This part applies to each program for which Federal financial
assistance is authorized under a law administered by ACTION, including
the types of Federal financial assistance listed in appendix A to this
part. It also applies to money paid, property transferred, or other
Federal financial assistance extended after the effective date of this
part pursuant to an application approved before that effective date.
This part does not apply to:
(1) Federal financial assistance by way of insurance or guaranty
contracts;
(2) Money paid, property transferred, or other assistance extended
before the effective date of this part, except when the assistance was
subject to the title VI regulations of an agency whose responsibilities
are now exercised by ACTION;
(3) Assistance to any individual who is the ultimate beneficiary; or
(4) Employment practices, under a program, of an employer,
employment agency, or labor organization, except to the extent described
in Sec. 1203.4(c).
The fact that a type of Federal financial assistance is not listed in
Appendix A to this part does not mean, if title VI is otherwise
applicable, that a program is not covered. Other types of Federal
financial assistance under statutes now in force or hereinafter enacted
may be added to Appendix A to this part.
(b) In a program receiving Federal financial assistance in the form,
or for the acquisition, of real property or an interest in real
property, to the extent that rights to space on, over, or under that
property are included, the nondiscrimination requirement of this part
extends to a facility located wholly or in part in that space.
[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]
Sec. 1203.3 Definitions.
Unless the context requires otherwise, in this part:
(a) Applicant means a person who submits an application, request, or
plan required to be approved by ACTION, or by a primary recipient, as a
condition to eligibility for Federal financial assistance, and
``application'' means that application, request, or plan.
(b) Facility includes all or any part of structures, equipment, or
other real or personal property or interests therein, and the provision
of facilities includes the construction, expansion, renovation,
remodeling, alteration, or acquisition of facilities.
(c) Federal financial assistance includes:
(1) Grants and loans of Federal funds;
(2) The grant or donation of Federal property and interests in
property;
(3) The detail of Federal personnel;
[[Page 12]]
(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 the
property without consideration or at a nominal consideration, or at a
consideration which is reduced for the purpose of assisting the
recipient, or in recognition of the public interest to be served by the
sale or lease to the recipient; and
(5) A Federal agreement, arrangement, or other contract which has as
one of its purposes the provision of assistance.
(d) Primary recipient means a recipient that is authorized or
required to extend Federal financial assistance to another recipient.
(e) Program or activity and program mean all of the operations of
any entity described in paragraphs (e)(1) through (4) of this section,
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) Which 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 which is established by two or more of the
entities described in paragraph (e)(1), (2), or (3) of this section.
(f) Recipient may mean any State, the District of Columbia, the
Commonwealth of Puerto Rico, a territory or possession of the United
States, or any political subdivision thereof, or instrumentality
thereof, any public or private agency, institution, or organization, or
other entity, or any individual in any State, the District of Columbia,
the Commonwealth of Puerto Rico, or territory or possession of the
United States, to whom Federal financial assistance is extended,
directly or through another recipient, including any successor,
assignee, or transferee thereof, but the term does not include any
ultimate beneficiary.
(g) Director means the Director of ACTION or any person to whom he
has delegated his authority in the matter concerned.
[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]
Sec. 1203.4 Discrimination prohibited.
(a) General. A person in the United States shall not, on the ground
of race, color, or national origin be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under, a program to which this part applies.
(b) Specific discriminatory actions prohibited. (1) A recipient to
which this part applies may not, directly or through contractual or
other arrangements, on the ground of race, color, or national origin--
(i) Deny a person a service, financial aid, or other benefit
provided under the program;
(ii) Provide a service, financial aid, or other benefit to a person
which is different, or is provided in a different manner, from that
provided to others under the program;
(iii) Subject a person to segregation or separate treatment in any
matter related to his receipt of a service, financial aid, or other
benefit under the program;
(iv) Restrict a person in any way in the enjoyment of an advantage
or
[[Page 13]]
privilege enjoyed by others receiving a service, financial aid, or other
benefit under the program;
(v) Treat a person differently from others in determining whether he
satisfies an admission, enrollment, quota, eligibility, membership, or
other requirement or condition which persons must meet in order to be
provided a service, financial aid, or other benefit provided under the
program;
(vi) Deny a person an opportunity to participate in the program
through the provision of services or otherwise or afford him an
opportunity to do so which is different from that afforded others under
the program; or
(vii) Deny a person the opportunity to participate as a member of a
planning or advisory body which is an integral part of the program.
(2) A recipient, in determining the types of services, financial
aid, or other benefits, or facilities which will be provided under a
program or the class of persons to whom, or the situations in which, the
services, financial aid, other benefits, or facilities will be provided
under a program, or the class of persons to be afforded an opportunity
to participate in a program, may not, directly or through contractual or
other arrangements, utilize criteria or methods of administration which
have the effect of subjecting persons to discrimination because of their
race, color, or national origin, or have the effect of defeating or
substantially impairing accomplishment of the objectives of the program
with respect to individuals of a particular race, color, or national
origin.
(3) 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.
(4)(i) In administering a program regarding which the recipient had
previously discriminated against persons on the ground of race, color,
or national origin, the recipient shall take affirmative action to
overcome the effects of prior discrimination.
(ii) Even in the absence of prior discrimination a recipient in
administering a program may take affirmative action to overcome the
effect of conditions which resulted in limiting participation by persons
of a particular race, color, or national origin.
(c) Employment practices. (1) When a primary objective of the
Federal financial assistance to which this part applies is to provide
employment, a recipient or other party subject to this part shall not,
directly or through contractual or other arrangements, subject a person
to discrimination on the ground of race, color, or national origin in
its employment practices under the program (including recruitment or
recruitment advertising, hiring, firing, upgrading, promotion, demotion,
transfer, layoff, termination, rates of pay, or other forms of
compensation or benefits, selection for training or apprenticeship, use
of facilities, and treatment of employees). A recipient shall take
affirmative action to insure that applicants are employed, and employees
are treated during employment, without regard to race, color, or
national origin. The requirements applicable to construction employment
under a program are those specified in or pursuant to part III of
Executive Order 11246 or any Executive order which supersedes it.
(2) Federal financial assistance to programs under laws funded or
administered by ACTION which have as a primary objective the providing
of employment include those set forth in Appendix B to this part.
(3) Where a primary objective of the Federal financial assistance is
not to provide employment, but discrimination on the ground of race,
color, or national origin in the employment practices of the recipient
tends, on the ground of race, color, or national origin, to exclude
persons from participation in, to deny them the benefits of, or to
subject them to discrimination under any program to which this part
applies, the provisions of paragraph (c)(1) of this section apply to the
employment practices of the recipient to the extent necessary to assure
equality of opportunity to and nondiscriminatory treatment of
beneficiaries.
(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
[[Page 14]]
of, or subjecting them to discrimination under, a program to which this
part applies, on the ground of race, color, or national origin; or with
the purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of title VI of this part.
[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]
Sec. 1203.5 Assurances required.
(a) General. (1) An application for Federal financial assistance to
which this part applies, except an application to which paragraph (d) of
this section applies, and every application for Federal financial
assistance to provide a facility shall, as a condition to its approval
and the extension of Federal financial assistance pursuant to the
application, contain or be accompanied by, assurances that the program
will be conducted or the facility operated in compliance with the
requirements imposed by or pursuant to this part. Every award of Federal
financial assistance shall require the submission of these assurances.
In the case where the Federal financial assistance is to provide or is
in the form of personal property, or real property or interest therein
or structures thereon, the assurances shall obligate the recipient, or,
in the case of a subsequent transfer, the transferee, for the period
during which the property is used for a purpose for which the Federal
financial assistance is extended or for another purpose involving the
provision of similar services or benefits, or for as long as the
recipient retains ownership or possession of the property, whichever is
longer. In other cases, the assurances obligate the recipient for the
period during which the Federal financial assistance is extended to the
program. In the case where the assistance is sought for the construction
of a facility or part of a facility, the assurances shall extend to the
entire facility and to the facilities operated in connection therewith.
ACTION shall specify the form of the foregoing assurances and the extent
to which like assurances will be required of subgrantees, contractors
and subcontractors, transferees, successors in interest, and other
participants. The assurances shall include provisions which give the
United States the right to seek judicial enforcement.
(2) When Federal financial assistance is provided in the form of a
transfer of real property, structures, or improvements thereon, or
interest therein, from the Federal Government, the instrument effecting
or recording the transfer shall contain a covenant running with the land
assuring nondiscrimination for the period during which the real property
is used for a purpose involving the provision of similar services or
benefits. When no transfer of property of interest therein from the
Federal Government is involved, but property is acquired or improved
with Federal financial assistance, the recipient shall agree to include
a covenant in any subsequent transfer of the property. When the property
is obtained from the Federal Government, the covenant may also include a
condition coupled with a right to be reserved by ACTION to revert title
to the property in the event of a breach of the covenant where, in the
discretion of ACTION, such a condition and right of reverter is
appropriate to the statute under which the real property is obtained and
to the nature of the grant and the grantee. In the event a transferee of
real property proposes to mortgage or otherwise encumber the real
property as security for financing construction of new, or improvement
of existing, facilities on property for the purposes for which the
property was transferred, ACTION may agree, on request of the transferee
and if necessary to accomplish the financing, and on conditions as he
deems appropriate, to subordinate a right of reversion to the lien of a
mortgage or other encumbrance.
(b) Assurances from Government agencies. In the case of an
application from a department, agency, or office of a State or local
government for Federal financial assistance for a specified purpose, the
assurance required by this section shall extend to any other department,
agency, or office of the same governmental unit if the policies of the
other department, agency, or office will substantially affect the
project for which Federal financial assistance is requested.
[[Page 15]]
(c) Assurance from academic and other institutions. (1) In the case
of an application for Federal financial assistance by an academic
institution, the assurance required by this section extends to admission
practices and to all other practices relating to the treatment of
students.
(2) The assurance required by an academic institution, detention or
correctional facility, or any other institution or facility, relating 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 these individuals, is applicable to the entire institution
or facility.
(d) Continuing Federal financial assistance. Every application by a
State or a State agency for continuing Federal financial assistance to
which this part applies (including the types of Federal financial
assistance listed in Appendix A to this part) shall as a condition to
its approval and the extension of Federal financial assistance pursuant
to the application:
(1) Contain or be accompanied by a statement that the program is
(or, in the case of a new program, will be) conducted in compliance with
the requirements imposed by or pursuant to this part, and
(2) Provide or be accompanied by provision for methods of
administration for the program as are found by ACTION to give reasonable
guarantee that the applicant and all recipients of Federal financial
assistance under the program will comply with the requirements imposed
by or pursuant to this part.
(Approved by the Office of Management and Budget under control number
3001-0016, paragraph (a)(1))
[39 FR 27322, July 26, 1974, as amended at 47 FR 3553, Jan. 26, 1982; 68
FR 51387, Aug. 26, 2003]
Sec. 1203.6 Compliance information.
(a) Cooperation and assistance. ACTION, to the fullest extent
practicable, shall 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 records and submit
to ACTION timely, complete, and accurate compliance reports at the
times, and in the form and containing the information ACTION may
determine necessary to enable it to ascertain whether the recipient has
complied or is complying with this part. In the case in which a primary
recipient extends Federal financial assistance to other recipients, the
other recipients shall also submit compliance reports to the primary
recipient as may be necessary to enable the primary recipient to carry
out its obligations under this part. In general, recipients should have
available for ACTION racial and ethnic data showing the extent to which
members of minority groups are beneficiaries of federally assisted
programs.
(c) Access to sources of information. Each recipient shall permit
access by ACTION during normal business hours to its books, records,
accounts, and other sources of information, and its facilities as may be
pertinent to ascertain compliance with this part. When information
required of a recipient is in the exclusive possession of an other
agency, institution, or person and this agency, institution, or person
fails or refuses to furnish this information, the recipient shall so
certify in its report and shall set forth what efforts it has made to
obtain the information.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons the information regarding the provisions of this part
and its applicability to the program for which the recipient received
Federal financial assistance, and make this information available to
them in the manner, as ACTION finds necessary, to apprise the persons of
the protections against discrimination assured them by title VI and this
part.
[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]
Sec. 1203.7 Conduct of investigations.
(a) Periodic compliance reviews. ACTION may from time to time review
the practices of recipients to determine
[[Page 16]]
whether they are complying with this part.
(b) Complaints. Any person who believes himself or any specific
class of persons to be subjected to discrimination prohibited by this
part may by himself or by a representative file with ACTION a written
complaint. A complaint shall be filed not later than 180 days after the
date of the alleged discrimination, unless the time for filing is
extended by ACTION.
(c) Investigations. ACTION will make a prompt investigation whenever
a compliance review, report, complaint, or other information indicates a
possible failure to comply with this part. The investigation will
include, when appropriate, a review of the pertinent practices and
policies of the recipient, the circumstances under which the possible
noncompliance with this part occurred, and other factors relevant to a
determination as to whether the recipient has failed to comply with this
part.
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
part, ACTION will so inform the recipient and the matter will be
resolved by voluntary means whenever possible. If it has been determined
that the matter cannot be resolved by voluntary means, action will be
taken as provided for in Sec. 1203.8.
(2) If an investigation does not warrant action pursuant to
paragraph (d)(1) of this section, ACTION will so inform, in writing, the
recipient and the complainant, if any.
(e) Intimidatory or retaliatory acts prohibited. A recipient or
other person shall not intimidate, threaten, coerce, or discriminate
against an individual for the purpose of interfering with a right or
privilege secured by section 601 of title VI of this part, or because he
has made a complaint, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this part. The
identity of complainants shall be kept confidential, except to the
extent necessary to carry out the purposes of this part, including the
conduct of an investigation, hearing, or judicial proceeding arising
thereunder.
Sec. 1203.8 Procedure for effecting compliance.
(a) General. (1) If there appears to be a failure or threatened
failure to comply with this part, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part may be effected by the suspension or termination of or refusal
to grant or to continue Federal financial assistance or by other means
authorized by law.
(2) Other means may include, but are not limited to:
(i) A reference to the Department of Justice with a recommendation
that appropriate proceedings be brought to enforce the rights of the
United States under a law of the United States (including other titles
of the Civil Rights Act of 1964) or an assurance or other contractual
undertaking, and
(ii) An applicable proceeding under State or local law.
(b) Noncompliance with Sec. 1203.5. If an applicant fails or
refuses to furnish an assurance required under Sec. 1203.5 or otherwise
fails or refuses to comply with a requirement imposed by or pursuant to
that section, Federal financial assistance may be refused in accordance
with the procedures of paragraph (c) of this section. ACTION shall not
be required to provide assistance in that case during the pendency of
the administrative proceedings under this paragraph. Subject, however,
to Sec. 1203.12, ACTION shall continue assistance during the pendency
of the proceedings where the assistance is due and payable pursuant to
an application approved prior to the effective date of this part.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. An order suspending, terminating, or refusing to
grant or to continue Federal financial assistance shall not become
effective until--
(1) ACTION has advised the applicant or recipient of his failure to
comply and has determined that compliance cannot be secured by informal
voluntary means;
(2) There has been an express finding on the record, after
opportunity for hearing, of a failure by the applicant or recipient to
comply with a requirement imposed by or pursuant to this part;
[[Page 17]]
(3) The action has been approved by the Director pursuant to Sec.
1203.10(e); and
(4) The expiration of 30 days after the Director has filed with the
committee of the House and the committee of the Senate having
legislative jurisdiction over the program involved, a full written
report of the circumstances and the grounds for the action.
An action to suspend or terminate or refuse to grant or to continue
Federal financial assistance shall be limited to the particular
political entity, or part thereof, or other applicant or recipient as to
whom a finding has been made and shall be limited in its effect to the
particular program, or part thereof, in which the noncompliance has been
so found.
(d) Other means authorized by law. An action to effect compliance
with title VI by other means authorized by law shall not be taken by
ACTION until--
(1) ACTION has determined that compliance cannot be secured by
voluntary means;
(2) The recipient or other person has been notified of its failure
to comply and of the action to be taken to effect compliance; and
(3) The expiration of at least 10 days from the mailing of a notice
to the recipient or person. During this period of at least 10 days,
additional efforts shall be made to persuade the recipient or other
person to comply with the regulation and to take corrective action as
may be appropriate.
Sec. 1203.9 Hearings.
(a) Opportunity for hearing. When an opportunity for a hearing is
required by Sec. 1203.8(c), reasonable notice shall be given by
registered or certified mail, return receipt requested, to the affected
applicant or recipient. This notice shall advise the applicant or
recipient of the action proposed to be taken, the specific provision
under which the proposed action against it is to be taken, and the
matters of fact or law asserted as the basis for this action, and
either:
(1) Fix a date not less than 20 days after the date of notice within
which the applicant or recipient may request of ACTION that the matter
be scheduled for hearing; or
(2) Advise the applicant or recipient that the matter in question
has been set down for hearing at a stated time and place. The time and
place so fixed shall be reasonable and subject to change for cause. The
complainant, if any, shall be advised of the time and place of the
hearing. An applicant or recipient may waive a hearing and submit
written information and argument for the record. The failure of an
applicant or recipient to request a hearing under this paragraph or to
appear at a hearing for which a date has been set is deemed to be a
waiver of the right to a hearing under section 602 of title VI and Sec.
1203.8(c) and consent to the making of a decision on the basis of the
information available.
(b) Time and place of hearing. Hearings shall be held at the offices
of ACTION in Washington, DC, at a time fixed by ACTION unless it
determines that the convenience of the applicant or recipient or of
ACTION requires that another place be selected. Hearings shall be held
before the Director, or at his discretion, before a hearing examiner
appointed in accordance with section 3105 of title 5, United States
Code, or detailed under section 3344 of title 5, United States Code.
(c) Right to counsel. In all proceedings under this section, the
applicant or recipient and ACTION have the right to be represented by
counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and
an administrative review thereof shall be conducted in conformity with
sections 554 through 557 of title 5, United States Code, and in
accordance with the rules of procedure as are proper (and not
inconsistent with this section) relating to the conduct of the hearing,
giving of notices subsequent to those provided for in paragraph (a) of
this section, taking of testimony, exhibits, arguments, and briefs,
requests for findings, and other related matters. Both ACTION and the
applicant or recipient are entitled to introduce relevant evidence on
the issues as stated in the notice for hearing or as determined by the
officer conducting the hearing at the outset of or during the hearing.
(2) Technical rules of evidence do not apply to hearings conducted
pursuant
[[Page 18]]
to this part, but rules or principles designed to assure production of
the most credible evidence available and to subject testimony to test by
cross-examination shall be applied where determined reasonably necessary
by the officer conducting the hearing. The hearing officer may exclude
irrelevant, immaterial, or unduly repetitious evidence. Documents and
other evidence offered or taken for the record shall be open to
examination by the parties and opportunity shall be given to refute
facts and arguments advanced on either side of the issues. A transcript
shall be made of the oral evidence except to the extent the substance
thereof is stipulated for the record. Decisions shall be based on the
hearing record and written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more Federal statutes, authorities, or other
means by which Federal financial assistance is extended and to which
this part applies, or noncompliance with this part and the regulations
of one or more other Federal departments or agencies issued under title
VI, ACTION may, by agreement with the other departments or agencies,
when applicable, provide for the conduct of consolidated or joint
hearings, and for the application to these hearings of rules or
procedures not inconsistent with this part. Final decisions in these
cases, insofar as this regulation is concerned, shall be made in
accordance with Sec. 1203.10.
[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]
Sec. 1203.10 Decisions and notices.
(a) Procedure on decisions by hearing examiner. If the hearing is
held by a hearing examiner, the hearing examiner shall either make an
initial decision, if so authorized, or certify the entire record
including his recommended findings and proposed decision to the Director
for a final decision, and a copy of the initial decision or
certification shall be mailed to the applicant or recipient. When the
initial decision is made by the hearing examiner, the applicant or
recipient may, within 30 days after the mailing of a notice of initial
decision, file with the Director his exceptions to the initial decision,
with his reasons therefor. In the absence of exceptions, the Director
may, on his own motion, within 45 days after the initial decision, serve
on the applicant or recipient a notice that he will review the decision.
On the filing of the exceptions or of notice of review, the Director
shall review the initial decision and issue his own decision thereon
including the reasons therefor. In the absence of either exceptions or a
notice of review the initial decision, subject to paragraph (e) of this
section, shall constitute the final decision of the Director.
(b) Decisions on record or review by the Director. When a record is
certified to the Director for decision or the Director reviews the
decision of a hearing examiner pursuant to paragraph (a) of this
section, or when the Director conducts the hearing, the applicant or
recipient shall be given reasonable opportunity to file with it briefs
or other written statements of the recipient's contentions, and a
written copy of the final decision of the Director will be sent to the
applicant or recipient and to the complainant, if any.
(c) Decisions on record where a hearing is waived. When a hearing is
waived pursuant to Sec. 1203.9, a decision shall be made by ACTION on
the record and a written copy of the decision shall be sent to the
applicant or recipient, and to the complainant, if any.
(d) Rulings required. Each decision of a hearing examiner or the
Director shall set forth a ruling on each finding, conclusion, or
exception presented, and shall identify the requirement or requirements
imposed by or pursuant to this part with which it is found that the
applicant or recipient has failed to comply.
(e) Approval by ACTION. A final decision by an official of ACTION
other than by the Director, which provides for the suspension or
termination of, or the refusal to grant or continue Federal financial
assistance, or the imposition of any other sanction available under this
part or title VI, shall
[[Page 19]]
promptly be transmitted to the Director, who may approve the decision,
vacate it, or remit or mitigate a sanction imposed.
(f) Content of orders. The final decision may provide for suspension
or termination of, or refusal to grant or continue Federal financial
assistance, in whole or in part, to which this regulation applies, and
may contain the terms, conditions, and other provisions as are
consistent with and will effectuate the purposes of title VI and this
part, including provisions designed to assure that Federal financial
assistance to which this regulation applies will not thereafter be
extended to the applicant or recipient determined by the decision to be
in default in its performance of an assurance given by it under this
part, or to have otherwise failed to comply with this part, unless and
until it corrects its noncompliance and satisfies ACTION that it will
fully comply with this part.
(g) Post-termination proceedings. (1) An applicant or recipient
adversely affected by an order issued under paragraph (f) of this
section shall be restored to full eligibility to receive Federal
financial assistance if it satisfies the terms and conditions of the
order for eligibility, or if it brings itself into compliance with this
part and provides reasonable assurance that it will fully comply with
this part.
(2) An applicant or recipient adversely affected by an order entered
pursuant to paragraph (f) of this section may at any time request ACTION
to restore fully its eligibility to receive Federal financial
assistance. A request shall be supported by information showing that the
applicant or recipient has met the requirements of paragraph (g)(1) of
this section. If ACTION determines that those requirements have been
satisfied, it shall restore the eligibility.
(3) If ACTION denies a request, the applicant or recipient may
submit a request for a hearing in writing, specifying why it believes
ACTION is in error. The applicant or recipient shall be given an
expeditious hearing, with a decision on the record in accordance with
the rules or procedures issued by ACTION. The applicant or recipient
shall be restored to eligibility if it proves at the hearing that it
satisfied the requirements of paragraph (g)(1) of this section. While
proceedings under this paragraph are pending, the sanctions imposed by
the order issued under paragraph (f) of this section remain in effect.
[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]
Sec. 1203.11 Judicial review.
Action taken pursuant to section 602 of title VI is subject to
judicial review as provided in section 603 of title VI.
Sec. 1203.12 Effect on other regulations, forms, and instructions.
(a) Effect on other regulations. Regulations, orders, or like
directions issued before the effective date of this part by ACTION which
impose requirements designed to prohibit discrimination against
individuals on the ground of race, color, or national origin to which
this part applies, and which authorizes the suspension or termination of
or refusal to grant or to continue Federal financial assistance to an
applicant for or recipient of assistance under a program for failure to
comply with the requirements, are superseded to the extent that
discrimination is prohibited by this part, except that nothing in this
part relieves a person of an obligation assumed or imposed under a
superseded regulation, order, instruction, or like direction, before the
effective date of this part. This part does not supersede any of the
following (including future amendments thereof):
(1) Executive Order 11246 (3 CFR, 1965 Supp.) and regulations issued
there under or
(2) Any other orders, regulations, or instructions, insofar as these
orders, regulations, or instructions prohibit discrimination on the
ground of race, color, or national origin in a program or situation to
which this part is inapplicable, or prohibit discrimination on any other
ground.
(b) Forms and instructions. ACTION shall issue and promptly make
available to all interested persons forms and detailed instructions and
procedures for effectuating this part as applied to programs to which
this part applies, and for which it is responsible.
[[Page 20]]
(c) Supervision and coordination. ACTION may from time to time
assign to officials of ACTION, or to officials of other departments or
agencies of the Government with the consent of the departments or
agencies, responsibilities in connection with the effectuation of the
purposes of title VI and this part (other than responsibilities for
final decision as provided in Sec. 1203.10), including the achievement
of effective coordination and maximum uniformity within ACTION and
within the executive branch in the application of title VI and this part
to similar programs and in similar situations. An action taken,
determination made, or requirement imposed by an official of another
department or agency acting pursuant to an assignment of responsibility
under this paragraph shall have the same effect as though the action had
been taken by ACTION.
[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]
Sec. Appendix A to Part 1203--Federal Financial Assistance to Which This
Part Applies
1. Grants for the development or operation of retired senior
volunteer programs pursuant to section 601 of the Older Americans Act of
1965, as amended (42 U.S.C. 3044).
2. Grants for the development and operation of foster grandparents
projects pursuant to section 611 of the Older Americans Act of 1965, as
amended (42 U.S.C. 3044b).
Sec. Appendix B to Part 1203--Federal Financial Assistance to Which This
Part Applies When a Primary Objective of the Federal Financial
Assistance Is To Provide Employment
1. Grants for the development or operation of retired senior
volunteer programs pursuant to section 601 of the Older Americans Act of
1965, as amended (42 U.S.C. 3044).
2. Grants for the development and operation of foster grandparents
projects pursuant to section 611 of the Older Americans Act of 1965, as
amended (42 U.S.C. 3044b).
PART 1206_GRANTS AND CONTRACTS_SUSPENSION AND TERMINATION AND DENIAL
OF APPLICATION FOR REFUNDING--Table of Contents
Subpart A_Suspension and Termination of Assistance
Sec.
1206.1-1 Purpose and scope.
1206.1-2 Application of this part.
1206.1-3 Definitions.
1206.1-4 Suspension.
1206.1-5 Termination.
1206.1-6 Time and place of termination hearings.
1206.1-7 Termination hearing procedures.
1206.1-8 Decisions and notices regarding termination.
1206.1-9 Right to counsel; travel expenses.
1206.1-10 Modification of procedures by consent.
1206.1-11 Other remedies.
Subpart B_Denial of Application for Refunding
1206.2-1 Applicability of this subpart.
1206.2-2 Purpose.
1206.2-3 Definitions.
1206.2-4 Procedures.
1206.2-5 Right to counsel.
Authority: 42 U.S.C. 5052.
Source: 69 FR 19110, Apr. 12, 2004, unless otherwise noted.
Subpart A_Suspension and Termination of Assistance
Sec. 1206.1-1 Purpose and scope.
(a) This subpart establishes rules and review procedures for the
suspension and termination of assistance of National Senior Service
Corps grants of assistance provided by the Corporation for National and
Community Service pursuant to sections of title II of the Domestic
Volunteer Service Act of 1973, Public Law 93-113, 87 Stat. 413
(hereinafter the DVSA) because a recipient failed to materially comply
with the terms and conditions of any grant or contract providing
assistance under these sections of the DVSA, including applicable laws,
regulations, issued program guidelines, instructions, grant conditions
or approved work programs.
(b) However, this subpart shall not apply to any administrative
action of
[[Page 21]]
the Corporation for National and Community Service based upon any
violation, or alleged violation, of title VI of the Civil Rights Act of
1964 and sections 417(a) and (b) of Pub. L. 93-113 relating to
nondiscrimination. In the case of any such violation or alleged
violation other provisions of this chapter shall apply.
[69 FR 19110, Apr. 12, 2004, as amended at 80 FR 63457, Oct. 20, 2015]
Sec. 1206.1-2 Application of this part.
This subpart applies to programs authorized under title II of the
DVSA.
[80 FR 63457, Oct. 20, 2015]
Sec. 1206.1-3 Definitions.
As used in this subpart--
(a) The term Corporation means the Corporation for National and
Community Service established pursuant to 42 U.S.C. 12651 and includes
each Corporation State Office and Service Center.
(b) The term CEO means the Chief Executive Officer of the
Corporation.
(c) The term responsible Corporation official means the CEO, Chief
Financial Officer, the Director of the National Senior Service Corps
programs, the appropriate Service Center Director and any Corporation
for National and Community Service (CNCS) Headquarters or State office
official who is authorized to make the grant or assistance in question.
In addition to the foregoing officials, in the case of the suspension
proceedings described in Sec. 1206.1-4, the term ``responsible
Corporation official'' shall also include a designee of a CNCS official
who is authorized to make the grant of assistance in question.
(d) The term assistance means assistance under title II of the DVSA
in the form of grants or contracts involving Federal funds for the
administration for which the Director of the National Senior Service
Corps programs has responsibility.
(e) The term recipient means a public or private agency, institution
or organization or a State or other political jurisdiction which has
received assistance under title II of the DVSA. The term ``recipient''
does not include individuals who ultimately receive benefits under any
DVSA program of assistance or National Senior Service Corps volunteers
participating in any program.
(f) The term agency means a public or private agency, institution,
or organization or a State or other political jurisdiction with which
the recipient has entered into an arrangement, contract or agreement to
assist in its carrying out the development, conduct and administration
of part of a project or program assisted under title II of the DVSA.
(g) The term party in the case of a termination hearing means the
Corporation, the recipient concerned, and any other agency or
organization which has a right or which has been granted permission by
the presiding officer to participate in a hearing concerning termination
of financial assistance to the recipient pursuant to Sec. 1206.1-5(e).
(h) The term termination means any action permanently terminating or
curtailing assistance to all or any part of a program prior to the time
that such assistance is concluded by the grant or contract terms and
conditions, but does not include the refusal to provide new or
additional assistance.
(i) The term suspension means any action temporarily suspending or
curtailing assistance in whole or in part, to all or any part of a
program, prior to the time that such assistance is concluded by the
grant or contract terms and conditions, but does not include the refusal
to provide new or additional assistance.
[69 FR 19110, Apr. 12, 2004, as amended at 80 FR 63457, Oct. 20, 2015]
Sec. 1206.1-4 Suspension.
(a) General. The responsible Corporation official may suspend
financial assistance to a recipient in whole or in part for a material
failure or threatened material failure to comply with any requirement
stated in Sec. 1206.1-1. Such suspension shall be pursuant to notice
and opportunity to show cause why assistance should not be suspended as
provided in paragraph (b) of this section. However, in emergency cases,
where the responsible Corporation official determines summary action is
appropriate, the alternative summary
[[Page 22]]
procedure of paragraph (c) of this section shall be followed.
(b) Suspension on notice. (1) Except as provided in paragraph (c) of
this section, the procedure for suspension shall be on notice of intent
to suspend as hereinafter provided.
(2) The responsible Corporation official shall notify the recipient
by letter or by telegram that the Corporation intends to suspend
assistance in whole or in part unless good cause is shown why assistance
should not be suspended. In such letter or telegram the responsible
Corporation official shall specify the grounds for the proposed
suspension and the proposed effective date of the suspension.
(3) The responsible Corporation official shall also inform the
recipient of its right to submit written material in opposition to the
intended suspension and of its right to request an informal meeting at
which the recipient may respond and attempt to show why such suspension
should not occur. The period of time within which the recipient may
submit such written material or request the informal meeting shall be
established by the responsible Corporation official in the notice of
intent to suspend. However, in no event shall the period of time within
which the recipient must submit written material or request such a
meeting be less than 5 days after the notice of intent to suspend
assistance has been sent. If the recipient requests a meeting, the
responsible Corporation official shall fix a time and place for the
meeting, which shall not be less than 5 days after the recipient's
request is received by the Corporation.
(4) In lieu of the provisions of paragraph (b)(3) of this section
dealing with the right of the recipient to request an informal meeting,
the responsible Corporation official may on his own initiative establish
a time and place for such a meeting and notify the recipient in writing
or by telegram. However, in no event shall such a meeting be scheduled
less than seven days after the notice of intent to suspend assistance is
sent to the recipient.
(5) The responsible Corporation official may in his discretion
extend the period of time or date referred to in the previous paragraphs
of this section and shall notify the recipient in writing or by telegram
of any such extension.
(6) At the time the responsible Corporation official sends the
notification referred to in paragraphs (b) (2), (3), and (4) of this
section to the recipient, he shall also send a copy of it to any agency
whose activities or failures to act have substantially contributed to
the proposed suspension, and shall inform such agency that it is
entitled to submit written material or to participate in the informal
meeting referred to in paragraphs (b) (3) and (4) of this section. In
addition the responsible Corporation official may in his discretion give
such notice to any other agency.
(7) Within 3 days of receipt of the notice referred to in paragraphs
(b) (2), (3), and (4) of this section, the recipient shall send a copy
of such notice and a copy of these regulations to all agencies which
would be financially affected by the proposed suspension action. Any
agency that wishes to submit written material may do so within the time
stated in the notice. Any agency that wishes to participate in the
informal meeting with the responsible Corporation official contemplated
herein may request permission to do so from the responsible Corporation
official, who may in his discretion grant or deny such permission. In
acting upon any such request from an agency, the responsible Corporation
official shall take into account the effect of the proposed suspension
on the particular agency, the extent to which the meeting would become
unduly complicated as a result of granting such permission, and the
extent to which the interests of the agency requesting such permission
appear to be adequately represented by other participants.
(8) In the notice of intent to suspend assistance the responsible
Corporation official shall invite voluntary action to adequately correct
the deficiency which led to the initiation of the suspension proceeding.
(9) The responsible Corporation official shall consider any timely
material presented to him in writing, any material presented to him
during the course of the informal meeting provided for in paragraphs
(b)(3) and (4) of this section
[[Page 23]]
as well as any showing that the recipient has adequately corrected the
deficiency which led to the initiation of suspension proceedings. If
after considering the material presented to him the responsible
Corporation official concludes the recipient has failed to show cause
why assistance should not be suspended, he may suspend assistance in
whole or in part and under such terms and conditions as he shall
specify.
(10) Notice of such suspension shall be promptly transmitted to the
recipient and shall become effective upon delivery. Suspension shall not
exceed 30 days unless during such period of time termination proceedings
are initiated in accordance with Sec. 1206.1-5, or unless the
responsible Corporation official and the recipient agree to a
continuation of the suspension for an additional period of time. If
termination proceedings are initiated, the suspension of assistance
shall remain in full force and effect until such proceedings have been
fully concluded.
(11) During a period of suspension no new expenditures shall be made
and no new obligations shall be incurred in connection with the
suspended program except as specifically authorized in writing by the
responsible Corporation official. Expenditures to fulfill legally
enforceable commitments made prior to the notice of suspension, in good
faith and in accordance with the recipient's approved work program, and
not in anticipation of suspension or termination, shall not be
considered new expenditures. However, funds shall not be recognized as
committed solely because the recipient has obligated them by contract or
otherwise to an agency.
Note: Willful misapplication of funds may violate Federal criminal
statutes.
(12) The responsible Corporation official may in his discretion
modify the terms, conditions and nature of the suspension or rescind the
suspension action at any time on his own initiative or upon a showing
satisfactory to him that the recipient had adequately corrected the
deficiency which led to the suspension and that repetition is not
threatened. Suspensions partly or fully rescinded may, in the discretion
of the responsible Corporation official be reimposed with or without
further proceedings: Provided however, That the total time of suspension
may not exceed 30 days unless termination proceedings are initiated in
accordance with Sec. 1206.1-5 or unless the responsible Corporation
official and the recipient agree to a continuation of the suspension for
an additional period of time. If termination proceedings are initiated,
the suspension of assistance shall remain in full force and effect until
such proceedings have been fully concluded.
(c) Summary suspension. (1) The responsible Corporation official may
suspend assistance without the prior notice and opportunity to show
cause provided in paragraph (b) of this section if he determines in his
discretion that immediate suspension is necessary because of a serious
risk of:
(i) Substantial injury to or loss of project funds or property, or
(ii) Violation of a Federal, State or local criminal statute, or
(iii) Violation of section 403 of the DVSA or of Corporation rules,
regulations, guidelines and instructions implementing this section of
the DVSA, and that such risk is sufficiently serious to outweigh the
general policy in favor of advance notice and opportunity to show cause.
(2) Notice of summary suspension shall be given to the recipient by
letter or by telegram, shall become effective upon delivery to the
recipient, and shall specifically advise the recipient of the effective
date of the suspension and the extent, terms, and condition of any
partial suspension. The notice shall also forbid the recipient to make
any new expenditures or incur any new obligations in connection with the
suspended portion of the program. Expenditures to fulfill legally
enforceable commitments made prior to the notice of suspension, in good
faith and in accordance with the recipient's approved work program, and
not in anticipation of suspension or termination, shall not be
considered new expenditures. However, funds shall not be recognized as
committed by a recipient solely because the recipient obligated them by
contract or otherwise to an agency. (See note under paragraph (b)(11) of
this section.)
[[Page 24]]
(3) In the notice of summary suspension the responsible Corporation
official shall advise the recipient that it may request the Corporation
to provide it with an opportunity to show cause why the summary
suspension should be rescinded. If the recipient requests such an
opportunity, the responsible Corporation official shall immediately
inform the recipient in writing of the specific grounds for the
suspension and shall within 7 days after receiving such request from the
recipient hold an informal meeting at which the recipient may show cause
why the summary suspension should be rescinded. Notwithstanding the
provisions of this paragraph, the responsible Corporation official may
proceed to initiate termination proceedings at any time even though
assistance to the recipient has been suspended in whole or in part. In
the event that termination proceedings are initiated, the responsible
Corporation official shall nevertheless afford the recipient, if it so
requests, an opportunity to show cause why suspension should be
rescinded pending the outcome of the termination proceedings.
(4) Copies of the notice of summary suspension shall be furnished by
the recipient to agencies in the same manner as notices of intent to
suspend as set forth in paragraphs (b)(6), (7), and (8) of this section.
Agencies may submit written material to the responsible Corporation
official or to participate in the informal meeting as in the case of
intended suspension proceedings set forth in paragraphs (b)(6) and (7)
of this section.
(5) The effective period of a summary suspension of assistance may
not exceed 30 days unless termination proceedings are initiated in
accordance with Sec. 1206.1-5, or unless the parties agree to a
continuation of summary suspension for an additional period of time, or
unless the recipient, in accordance with paragraph (c)(3) of this
section, requests an opportunity to show cause why the summary
suspension should be rescinded.
(6) If the recipient requests an opportunity to show cause why a
summary suspension action should be rescinded the suspension of
assistance shall continue in effect until the recipient has been
afforded such opportunity and a decision has been made. Such a decision
shall be made within 5 days after the conclusion of the informal meeting
referred to in paragraph (c)(3) of this section. If the responsible
Corporation official concludes, after considering all material submitted
to him, that the recipient has failed to show cause why the suspension
should be rescinded, the responsible Corporation official may continue
the suspension in effect for an additional 7 days: Provided however,
That if termination proceedings are initiated, the summary suspension of
assistance shall remain in full force and effect until all termination
proceedings have been fully concluded.
Sec. 1206.1-5 Termination.
(a) If the responsible Corporation official believes that an alleged
failure to comply with any requirement stated in Sec. 1206.1-1 may be
sufficiently serious to warrant termination of assistance, whether or
not assistance has been suspended, he shall so notify the recipient by
letter or telegram. The notice shall state that there appear to be
grounds which warrant terminating the assistance and shall set forth the
specific reasons therefore. If the reasons result in whole or
substantial part from the activities of an agency other than the
grantee, the notice shall identify that agency. The notice shall also
advise the recipient that the matter has been set down for hearing at a
stated time and place, in accordance with Sec. 1206.1-6. In the
alternative the notice shall advise the recipient of its right to
request a hearing and shall fix a period of time which shall not be less
than 10 days in which the recipient may request such a hearing.
(b) Termination hearings shall be conducted in accordance with the
provision of Sec. Sec. 1206.1-7 and 1206.1-8. They shall be scheduled
for the earliest practicable date, but not later than 30 days after a
recipient has requested such a hearing in writing or by telegram.
Consideration shall be given to a request by a recipient to advance or
postpone the date of a hearing scheduled by the Corporation. Any such
hearing shall afford the recipient a full and fair opportunity to
demonstrate that it is in
[[Page 25]]
compliance with requirements specified in Sec. 1206.1-1. In any
termination hearing, the Corporation shall have the burden of justifying
the proposed termination action. However, if the basis of the proposed
termination is the failure of a recipient to take action required by
law, regulation, or other requirement specified in Sec. 1206.1-1, the
recipient shall have the burden of proving that such action was timely
taken.
(c) If a recipient requests the Corporation to hold a hearing in
accordance with paragraph (a) of this section, it shall send a copy of
its request for such a hearing to all agencies which would be
financially affected by the termination of assistance and to each agency
identified in the notice pursuant to paragraph (a) of this section. This
material shall be sent to these agencies at the same time the
recipient's request is made to the Corporation. The recipient shall
promptly send to the Corporation a list of the agencies to which it has
sent such material and the date on which it was sent.
(d) If the responsible Corporation official pursuant to paragraph
(a) of this section informs a recipient that a proposed termination
action has been set for hearing, the recipient shall within 5 days of
its receipt of this notice send a copy of it to all agencies which would
be financially affected by the termination and to each agency identified
in the notice pursuant to paragraph (a) of this section. The recipient
shall send the responsible Corporation official a list of all agencies
notified and the date of notification.
(e) If the responsible Corporation official has initiated
termination proceedings because of the activities of an agency, that
agency may participate in the hearing as a matter of right. Any other
agency, person, or organization that wishes to participate in the
hearing may, in accordance with Sec. 1206.1-7(d), request permission to
do so from the presiding officer of the hearing. Such participation
shall not, without the consent of the Corporation and the recipient,
alter the time limitations for the delivery of papers or other
procedures set forth in this section.
(f) The results of the proceeding and any subsequent measure taken
by the Corporation pursuant to this part shall be fully binding upon the
recipient and all agencies whether or not they actually participated in
the hearing.
(g) A recipient may waive a hearing by notice to the responsible
Corporation official in writing and submit written information and
argument for the record. Such material shall be submitted to the
responsible Corporation official within a reasonable period of time to
be fixed by him upon the request of the recipient. The failure of a
recipient to request a hearing, or to appear at a hearing for which a
date has been set, unless excused for good cause, shall be deemed a
waiver of the right to a hearing and consent to the making of a decision
on the basis of such information as is then in the possession of the
Corporation.
(h) The responsible Corporation official may attempt, either
personally or through a representative, to resolve the issues in dispute
by informal means prior to the date of any applicable hearing.
Sec. 1206.1-6 Time and place of termination hearings.
The termination hearing shall be held in Washington, DC, or in the
appropriate Service Center or Corporation State Office, at a time and
place fixed by the responsible Corporation official unless he determines
that for the convenience of the Corporation, or of the parties or their
representatives, requires that another place be selected.
Sec. 1206.1-7 Termination hearing procedures.
(a) General. The termination hearing, decision, and any review shall
be conducted in accordance with the rules of procedure in this section
and Sec. Sec. 1206.1-8 and 1206.1-9.
(b) Presiding officer. (1) The presiding officer at the hearing
shall be the responsible Corporation official or, at the discretion of
the responsible Corporation official, an independent hearing examiner
designated as promptly as possible in accordance with section 3105 of
title 5 of the United States Code. The presiding officer shall conduct a
full and fair hearing, avoid delay, maintain order, and make a
sufficient record for a full and true disclosure of the facts and
issues. To accomplish
[[Page 26]]
these ends, the presiding officer shall have all powers authorized by
law, and he may make all procedural and evidentiary rulings necessary
for the conduct of the hearing. The hearing shall be open to the public
unless the presiding officer for good cause shown shall otherwise
determine.
(2) After the notice described in paragraph (f) of this section is
filed with the presiding officer, he shall not consult any person or
party on a fact in issue unless on written notice and opportunity for
all parties to participate. However, in performing his functions under
this part the presiding officer may use the assistance and advice of an
attorney designated by the General Counsel of the Corporation: Provided,
That the attorney designated to assist him has not represented the
Corporation or any other party or otherwise participated in a
proceeding, recommendation, or decision in the particular matter.
(c) Presentation of evidence. Both the Corporation and the recipient
are entitled to present their case by oral or documentary evidence, to
submit rebuttal evidence and to conduct such examination and cross-
examination as may be required for a full and true disclosure of all
facts bearing on the issues. The issues shall be those stated in the
notice required to be filed by paragraph (f) of this section, those
stipulated in a prehearing conference or those agreed to by the parties.
(d) Participation. (1) In addition to the Corporation, the
recipient, and any agency which has a right to appear, the presiding
officer in his discretion may permit the participation in the
proceedings of such persons or organizations as he deems necessary for a
proper determination of the issues involved. Such participation may be
limited to those issues or activities which the presiding officer
believes will meet the needs of the proceeding, and may be limited to
the filing of written material.
(2) Any person or organization that wishes to participate in a
proceeding may apply for permission to do so from the presiding officer.
This application, which shall be made as soon as possible after the
notice of suspension or proposed termination has been received by the
recipient, shall state the applicant's interest in the proceeding, the
evidence or arguments the applicant intends to contribute, and the
necessity for the introduction of such evidence or arguments.
(3) The presiding officer shall permit or deny such participation
and shall give notice of his decision to the applicant, the recipient,
and the Corporation, and, in the case of denial, a brief statement of
the reasons for his decision: Provided however, That the presiding
officer may subsequently permit such participation if, in his opinion,
it is warranted by subsequent circumstances. If participation is
granted, the presiding officer shall notify all parties of that fact and
may, in appropriate cases, include in the notification a brief statement
of the issues as to which participation is permitted.
(4) Permission to participate to any extent is not a recognition
that the participant has any interest which may be adversely affected or
that the participant may be aggrieved by any decision, but is allowed
solely for the aid and information of the presiding officer.
(e) Filing. All papers and documents which are required to be filed
shall be filed with the presiding officer. Prior to filing, copies shall
be sent to the other parties.
(f) Notice. The responsible Corporation official shall send the
recipient and any other party a written notice which states the time,
place, nature of the hearing, the legal authority and jurisdiction under
which the hearing is to be held. The notice shall also identify with
reasonable specificity the facts relied on as justifying termination and
the Corporation requirements which it is contended the recipient has
violated. The notice shall be filed and served not later than 10 days
prior to the hearing and a copy thereof shall be filed with the
presiding officer.
(g) Notice of intention to appear. The recipient and any other party
which has a right or has been granted permission to participate in the
hearing shall give written confirmation to the Corporation of its
intention to appear at the hearing 3 days before it is scheduled to
occur. Failing to do so may, at the discretion of the presiding officer,
[[Page 27]]
be deemed a waiver of the right to a hearing.
(h) Form and date of service. All papers and documents filed or sent
to party shall be signed in ink by the appropriate party or his
authorized representative. The date on which papers are filed shall be
the day on which the papers or documents are deposited, postage prepaid
in the U.S. mail, or are delivered in person: Provided however, That the
effective date of the notice that there appear to be grounds which
warrant terminating assistance shall be the date of its delivery or
attempted delivery at the recipient's last known address as reflected in
the records of the Corporation.
(i) Prehearing conferences. Prior to the commencement of a hearing
the presiding officer may, subject to the provisions of paragraph (b)(2)
of this section, require the parties to meet with him or correspond with
him concerning the settlement of any matter which will expedite a quick
and fair conclusion of the hearing.
(j) Evidence. Technical rules of evidence shall not apply to
hearings conducted pursuant to this subpart, but the presiding officer
shall apply rules or principles designed to assure production of
relevant evidence and to subject testimony to such examination and cross
examination as may be required for a full and true disclosure of the
facts. The presiding officer may exclude irrelevant, immaterial, or
unduly repetitious evidence. A transcription shall be made of the oral
evidence and shall be made available to any participant upon payment of
the prescribed costs. All documents and other evidence submitted shall
be open to examination by the parties and opportunity shall be given to
refute facts and arguments advanced on either side of the issues.
(k) Depositions. If the presiding officer determines that the
interests of justice would be served, he may authorize the taking of
depositions provided that all parties are afforded an opportunity to
participate in the taking of the depositions. The party who requested
the deposition shall arrange for a transcript to be made of the
proceedings and shall upon request, and at his expense, furnish all
other parties with copies of the transcript.
(l) Official notice. Official notice may be taken of a public
document, or part of a public document, such as a statute, official
report, decision, opinion or published scientific data issued by any
agency of the Federal Government or a State or local government and such
document or data may be entered on the record without further proof of
authenticity. Official notice may also be taken of such matters as may
be judicially noticed in the courts of the United States, or any other
matter of established fact within the general knowledge of the
Corporation. If the decision of the presiding officer rests on official
notice of a material fact not appearing in evidence, a party shall on
timely request be afforded an opportunity to show the contrary.
(m) Proposed findings and conclusions. After the hearing has
concluded, but before the presiding officer makes his decision, he shall
afford each participant a reasonable opportunity to submit proposed
findings of fact and conclusions. After considering each proposed
finding or conclusion the presiding officer shall state in his decision
whether he has accepted or rejected them in accordance with the
provisions of Sec. 1206.1-8(a).
Sec. 1206.1-8 Decisions and notices regarding termination.
(a) Each decision of a presiding officer shall contain his findings
of fact, and conclusions, and shall state whether he has accepted or
rejected each proposed finding of fact and conclusion submitted by the
parties, pursuant to Sec. 1206.1-7(m). Findings of fact shall be based
only upon evidence submitted to the presiding officer and matters of
which official notice has been taken. The decision shall also specify
the requirement or requirements with which it is found that the
recipient has failed to comply.
(b) The decision of the presiding officer may provide for continued
suspension or termination of assistance to the recipient in whole or in
part, and may contain such terms, conditions, and other provisions as
are consistent with and will effectuate the purposes of the DVSA.
[[Page 28]]
(c) If the hearing is held by an independent hearing examiner rather
than by the responsible Corporation official, he shall make an initial
decision, and a copy of this initial decision shall be mailed to all
parties. Any party may, within 20 days of the mailing of such initial
decision, or such longer period of time as the presiding officer
specifies, file with the responsible Corporation official his written
exceptions to the initial decision and any supporting brief or
statement. Upon the filing of such exceptions, the responsible
Corporation official shall, within 20 days of the mailing of the
exceptions, review the initial decision and issue his own written
decision thereof, including the reasons therefore. The decision of the
responsible Corporation official may increase, modify, approve, vacate,
remit, or mitigate any sanction imposed in the initial decision or may
remand the matter to the presiding officer for further hearing or
consideration.
(d) Whenever a hearing is waived, a decision shall be made by the
responsible Corporation official and a written copy of the final
decision of the responsible Corporation official shall be given to the
recipient.
(e) The recipient may request the CEO to review a final decision by
the responsible Corporation official which provides for the termination
of assistance. Such a request must be made in writing within 15 days
after the recipient has been notified of the decision in question and
must state in detail the reasons for seeking the review. In the event
the recipient requests such a review, the CEO or his designee shall
consider the reasons stated by the recipient for seeking the review and
shall approve, modify, vacate or mitigate any sanction imposed by the
responsible Corporation official or remand the matter to the responsible
Corporation official for further hearing or consideration. The decision
of the responsible Corporation official will be given great weight by
the CEO or his designee during the review. During the course of his
review the CEO or his designee may, but is not required to, hold a
hearing or allow the filing of briefs and arguments. Pending the
decision of the CEO or his designee assistance shall remain suspended
under the terms and conditions specified by the responsible Corporation
official, unless the responsible Corporation official or the CEO or his
designee otherwise determines. Every reasonable effort shall be made to
complete the review by the CEO or his designee within 30 days of receipt
by the CEO of the recipient's request. The CEO or his designee may
however extend this period of time if he determines that additional time
is necessary for an adequate review.
Sec. 1206.1-9 Right to counsel; travel expenses.
In all formal or informal proceedings under this subpart, the
recipient and the Corporation shall have the right to be represented by
counsel or other authorized representatives. If the recipient and any
agency which has a right to participate in an informal meeting pursuant
to Sec. 1206.1-4 or a termination hearing pursuant to Sec. 1206.1-7 do
not have an attorney acting in that capacity as a regular member of the
staff of the organization or a retainer arrangement with an attorney,
the Boards of Directors of such recipient and agency will be authorized
to designate an attorney to represent their organizations at any such
show cause proceeding or termination hearing and to transfer sufficient
funds from the Federal grant monies they have received for the project
to pay the fees, travel, and per diem expenses of such attorney. The
fees for such attorney shall be the reasonable and customary fees for an
attorney practicing in the locality of the attorney. However, such fees
shall not exceed $100 per day without the prior express written approval
of the Corporation. Travel and per diem expenses may be paid to such
attorney only in accordance with the policies set forth in the federal
government travel regulations. The Boards of Directors of the recipient
or any agency which has a right to participate in an informal meeting
pursuant to Sec. 1206.1-4 or a termination hearing pursuant to Sec.
1206.1-7 will also be authorized to designate two persons in addition to
an attorney whose travel and per diem expenses to attend the meeting or
hearing may be paid from Federal grant or contract
[[Page 29]]
monies. Such travel and per diem expenses shall conform to the policies
set forth in the federal government travel regulations.
Sec. 1206.1-10 Modification of procedures by consent.
The responsible Corporation official or the presiding officer of a
termination hearing may alter, eliminate or modify any of the provisions
of this subpart with the consent of the recipient and, in the case of a
termination hearing, with the consent of all agencies that have a right
to participate in the hearing pursuant to Sec. 1206.1-5(e). Such
consent must be in writing or be recorded in the hearing transcript.
Sec. 1206.1-11 Other remedies.
The procedures established by this subpart shall not preclude the
Corporation from pursuing any other remedies authorized by law.
Subpart B_Denial of Application for Refunding
Sec. 1206.2-1 Applicability of this subpart.
This subpart applies to grantees and contractors receiving financial
assistance under title II of the DVSA. The procedures in the subpart do
not apply to review of applications for sponsors who receive VISTA
members under the DVSA.
[80 FR 63457, Oct. 20, 2015]
Sec. 1206.2-2 Purpose.
This subpart establishes rules and review procedures for the denial
of a current recipient's application for refunding.
Sec. 1206.2-3 Definitions.
As used in this subpart, ``Corporation'', ``CEO'', and ``recipient''
are defined in accordance with Sec. 1206.1-3.
Financial assistance and assistance include the services of National
Senior Service Corps volunteers supported in whole or in part with CNCS
funds under the DVSA.
Program account includes assistance provided by CNCS to support a
particular program activity; for example, Foster Grandparent Program,
Senior Companion Program and Retired Senior Volunteer Program.
Refunding includes renewal of an application for the assignment of
National Senior Service Corps volunteers.
[80 FR 63457, Oct. 20, 2015]
Sec. 1206.2-4 Procedures.
(a) The procedures set forth in paragraphs (b) through (g) of this
section applies only where an application for refunding submitted by a
current recipient is rejected or is reduced to 80 percent or less of the
applied-for level of funding or the recipient's current level of
operations, whichever is less. It is further a condition for application
of these procedures that the rejection or reduction be based on
circumstances related to the particular grant or contract. These
procedures do not apply to reductions based on legislative requirements,
or on general policy or in instances where, regardless of a recipient's
current level of operations, its application for refunding is not
reduced by 20 percent or more. The fact that the basis for rejecting an
application may also be a basis for termination under subpart A of this
part shall not prevent the use of this subpart to the exclusion of the
procedures in subpart A.
(b) Before rejecting an application of a recipient for refunding the
Corporation shall notify the recipient of its intention, in writing, at
least 75 days before the end of the recipient's current program year or
grant budget period. The notice shall inform the recipient that a
tentative decision has been made to reject or reduce an application for
refunding. The notice shall state the reasons for the tentative decision
to which the recipient shall address itself if it wishes to make a
presentation as described in paragraphs (c) and (d) of this section.
(c) If the notice of tentative decision is based on any reasons,
other than those described in paragraph (d) of this section, including,
but not limited to, situations in which the recipient has ineffectively
managed Corporation resources or substantially failed to comply with
Corporation policy and overall objectives under a contract or grant
agreement with the Corporation, the
[[Page 30]]
recipient shall be informed in the notice, of the opportunity to submit
written material and to meet informally with a Corporation official to
show cause why its application for refunding should not be rejected or
reduced. If the recipient requests an informal meeting, such meeting
shall be held on a date specified by the Corporation. However, the
meeting may not, without the consent of the recipient, be scheduled
sooner than 14 days, nor more than 30 days, after the Corporation has
mailed the notice to the recipient. If the recipient requests an
informal meeting, the meeting shall be scheduled by the Corporation as
soon as possible after receipt of the request. The official who shall
conduct this meeting shall be a Corporation official who is authorized
to finally approve the refunding in question, or his designee.
(d) If the notice of tentative decision is based upon a specific
charge of failure to comply with the terms and conditions of the grant
or contract, alleging wrongdoing on the part of the recipient, the
notice shall offer the recipient an opportunity for an informal hearing
before a mutually agreed-upon impartial hearing officer. The authority
of such hearing officer shall be limited to conducting the hearing and
offering recommendations. The Corporation will retain all authority to
make the final determination as to whether the application should be
finally rejected or reduced. If the recipient requests an informal
hearing, such hearing shall be held at a date specified by the
Corporation. However, such hearing may not, without the consent of the
recipient, be scheduled sooner than 14 days nor more than 30 days after
the Corporation mails the notice to the recipient.
(e) In the selection of a hearing official and the location of
either an informal meeting or hearing, the Corporation, while mindful of
considerations of the recipient, will take care to insure that costs are
kept to a minimum. The informal meeting or hearing shall be held in the
city or county in which the recipient is located, in the appropriate
Service Center or Corporation State Office, or another appropriate
location. Within the limits stated in the pre-
ceding sentence, the decision as to where the meeting shall be held will
be made by the Corporation, after weighing the convenience factors of
the recipient. For the convenience of the recipient, the Corporation
will pay the reasonable travel expenses for up to two representatives of
the recipient, if requested.
(f) The recipient shall be informed of the final Corporation
decision on refunding and the basis for the decision by the deciding
official.
(g) If the recipient's budget period expires prior to the final
decision by the deciding official, the recipient's authority to continue
program operations shall be extended until such decision is made and
communicated to the recipient. If a National Senior Service Corps
volunteer's term of service expires after receipt by a sponsor of a
tentative decision not to refund a project, the period of service of the
volunteer may be similarly extended. No volunteers may be reenrolled for
a period of service while a tentative decision not to refund is pending.
If program operations are so extended, CNCS and the recipient shall
provide, subject to the availability of funds, operating funds at the
same levels as in the previous budget period to continue program
operations.
[69 FR 19110, Apr. 12, 2004, as amended at 80 FR 63457, Oct. 20, 2015]
Sec. 1206.2-5 Right to counsel.
In all formal or informal proceedings under this subpart, the
recipient and the Corporation shall have the right to be represented by
counsel or other authorized representatives, at their own expense.
PARTS 1210 1211 [RESERVED]
PART 1212_VOLUNTEER AGENCIES PROCEDURES FOR NATIONAL GRANT VOLUNTEERS
[RESERVED]
[[Page 31]]
PART 1214_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP
IN PROGRAMS OR ACTIVITIES CONDUCTED BY ACTION--Table of Contents
Sec.
1214.101 Purpose.
1214.102 Application.
1214.103 Definitions.
1214.104-1214.109 [Reserved]
1214.110 Self-evaluation.
1214.111 Notice.
1214.112-1214.129 [Reserved]
1214.130 General prohibitions against discrimination.
1214.131-1214.139 [Reserved]
1214.140 Employment.
1214.141-1214.148 [Reserved]
1214.149 Program accessibility: Discrimination prohibited.
1214.150 Program accessibility: Existing facilities.
1214.151 Program accessibility: New construction and alterations.
1214.152-1214.159 [Reserved]
1214.160 Communications.
1214.161-1214.169 [Reserved]
1214.170 Compliance procedures.
Authority: 29 U.S.C. 794; 42 U.S.C. 5057.
Source: 55 FR 47761, Nov. 15, 1990, unless otherwise noted.
Sec. 1214.101 Purpose.
The purpose of this part is to effectuate section 119 of the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, which amended section 504 of the Rehabilitation Act
of 1973 to prohibit discrimination on the basis of handicap in programs
or activities conducted by Executive agencies or the United States
Postal Service.
Sec. 1214.102 Application.
This part applies to all programs or activities conducted by the
agency, except for programs or activities conducted outside the United
States that do not involve individuals with handicaps in the United
States.
Sec. 1214.103 Definitions.
For purposes of this part, the term--
Agency means ACTION.
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, and other similar services and devices. Auxiliary aids
useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDD's), interpreters, notetakers, written
materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504 of the Act. It
shall be signed by the complainant or by someone authorized to do so on
his or her behalf. Complaints filed on behalf of classes or third
parties shall describe or identify (by name, if possible) the alleged
victims of discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Individuals with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment. As used in this definition, the phrase:
(1) Physical or mental impairment includes--
(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;
genitourinary; 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
[[Page 32]]
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.
(2) Major life activities includes 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 is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limit
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
Qualified individual with handicaps means--
(1) With respect to preschool, elementary, or secondary education
services provided by the agency, an individual with handicaps who is a
member of a class of persons otherwise entitled by statute, regulation,
or agency policy to receive educational services from the agency;
(2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
agency can demonstrate would result in a fundamental alteration in its
nature;
(3) With respect to any other program or activity, an individual
with handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(4) Qualified handicapped person as that term is defined for
purposes of employment in 29 CFR 1613.702(f), which is made applicable
to this part by Sec. 1214.140.
Section 504 of the Act means section 504 of the Rehabilitation Act
of 1973 (Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by
the Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat.
1617); the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810),
and the Civil Rights Restoration Act of 1987 (Pub. L. 100-259, 102 Stat.
28). As used in this part, section 504 of the Act applies only to
programs or activities conducted by Executive agencies and not to
federally assisted programs.
Sec. Sec. 1214.104-1214.109 [Reserved]
Sec. 1214.110 Self-evaluation.
(a) The agency shall, within one year of the effective date of this
part, evaluate its current policies and practices, and the effects
thereof, that do not or may not meet the requirements of this part and,
to the extent modification of any such policies and practices is
required, the agency shall proceed to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including individuals with handicaps or organizations representing
individuals with handicaps, to participate in the self-evaluation
process by submitting comments (both oral and written).
(c) The agency shall, for at least three years following completion
of the self-evaluation, required under paragraph (a) of this section,
maintain on file and make available for public inspection--
(1) A description of areas examined and any problems identified; and
(2) A description of any modifications made.
[[Page 33]]
Sec. 1214.111 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the agency, and make such
information available to them in such manner as the head of the agency
finds necessary to apprise such persons of the protections against
discrimination assured them by section 504 of the Act and this part.
Sec. Sec. 1214.112-1214.129 [Reserved]
Sec. 1214.130 General prohibitions against discrimination.
(a) No qualified individual with handicaps 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 conducted by the agency.
(b)(1) The agency, 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 individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps 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 individual with handicaps with 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
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with handicaps
the opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would be to--
(i) Subject qualified individuals with handicaps to discrimination
on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this part.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with handicaps.
[[Page 34]]
Sec. Sec. 1214.131-1214.139 [Reserved]
Sec. 1214.140 Employment.
No qualified individual with handicaps shall, on the basis of
handicap, be subjected to discrimination in employment under any program
or activity conducted by the agency. The definitions, requirements, and
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791), as established by the Equal Employment Opportunity Commission in
29 CFR part 1613, shall apply to employment in federally conducted
programs or activities.
Sec. Sec. 1214.141-1214.148 [Reserved]
Sec. 1214.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Sec. 1214.150, no qualified
individual with handicaps shall, because the agency's facilities are
inaccessible to or unusable by individuals with handicaps, be denied the
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.
Sec. 1214.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not--
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with handicaps; or
(2) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 1214.150(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity and must be
accompanied by a written statement of the reasons for that conclusion.
If an action would result in such an alteration or such burdens, the
agency shall take any other action that would not result in such an
alteration or such burdens but would nevertheless ensure that
individuals with handicaps receive the benefits and services of the
program or activity.
(b) Methods. The agency may comply with the requirements of this
section through such means as redesign of equipment, reassignment of
services to accessible buildings, assignment of aides to beneficiaries,
home visits, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any other methods that result in
making its programs or activities readily accessible to and usable by
individuals with handicaps. The agency is not required to make
structural changes in existing facilities where other methods are
effective in achieving compliance with this section. The agency, in
making alterations to existing buildings, shall meet accessibility
requirements to the extent compelled by the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), and any regulations
implementing it. In choosing among available methods for meeting the
requirements of this section, the agency shall give priority to those
methods that offer programs and activities to qualified individuals with
handicaps in the most integrated setting appropriate.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section within sixty days of the
effective date of this part except that where structural changes in
facilities are undertaken, such changes shall be made within three years
of the effective date of this part, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be
[[Page 35]]
undertaken to achieve program accessibility, the agency shall develop,
within six months of the effective date of this part, a transition plan
setting forth the steps necessary to complete such changes. The agency
shall provide an opportunity to interested persons, including
individuals with handicaps or organizations representing individuals
with handicaps, to participate in the development of the transition plan
by submitting comments (both oral and written). A copy of the transition
plan shall be made available for public inspection. The plan shall, at a
minimum--
(1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to individuals
with handicaps;
(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
compliance with this section and, if the time period of 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 agency official responsible for implementation of
the plan.
Sec. 1214.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with handicaps. The definitions, requirements, and standards
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
Sec. Sec. 1214.152-1214.159 [Reserved]
Sec. 1214.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid will be provided, the
agency shall give primary consideration to the requests of the
individual with handicaps.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used to communicate
with persons with impaired hearing.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide a sign at a primary entrance to each of
its inaccessible facilities, directing users to a location at which they
can obtain information about accessible facilities. The international
symbol for accessibility shall be displayed at each primary entrance to
each accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 1214.160 would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the agency head or
his or her designee after considering all agency resources available for
use in the funding and operation of the conducted program or activity
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action required to comply
[[Page 36]]
with this section would result in such alteration or such burdens, the
agency shall take any other action that would not result in such an
alteration or such burdens but would nevertheless ensure that, to the
maximum extent possible, individuals with handicaps receive the benefits
and services of the program or activity.
Sec. Sec. 1214.161-1214.169 [Reserved]
Sec. 1214.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs and activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) Responsibility for implementation and operation of this section
shall be vested in the Director, Equal Opportunity Staff.
PART 1216_NONDISPLACEMENT OF EMPLOYED WORKERS AND NONIMPAIRMENT
OF CONTRACTS FOR SERVICE--Table of Contents
Sec.
1216.1-1 Purpose.
1216.1-2 Applicability of this part.
1216.1-3 Policy.
1216.1-4 Exceptions.
Authority: 42 U.S.C. 5044(a).
Source: 40 FR 16209, Apr. 10, 1975, unless otherwise noted.
Sec. 1216.1-1 Purpose.
This part establishes rules to assure that the services of
volunteers in the Foster Grandparent Program, the Senior Companion
Program, and The Retired and Senior Volunteer Program (RSVP), are
limited to activities which would not otherwise be performed by employed
workers and which will not supplant the hiring of, or result in the
displacement of employed workers or impair existing contracts for
service. This part implements section 404(a) of the Domestic Volunteer
Service Act of 1973, Public Law 93-113 (the ``Act'').
[80 FR 63457, Oct. 20, 2015]
Sec. 1216.1-2 Applicability of this part.
(a) All volunteers in either the Foster Grandparent Program, the
Senior Companion Program, or The Retired and Senior Volunteer Program
(RSVP), who are assigned, referred or serving pursuant to grants,
contracts, or agreements made pursuant to the Act.
(b) All agencies and organizations to which the volunteers in
paragraph (a) of this section are assigned, referred or provide
services.
[40 FR 16209, Apr. 10, 1975, as amended at 80 FR 63457, Oct. 20, 2015]
Sec. 1216.1-3 Policy.
(a) Volunteers enrolled or participating in programs referred to in
paragraphs (a) and (b) of Sec. 1216.1-2 may not perform any services or
duties or engage in activities which would otherwise be performed by an
employed worker as part of his assigned duties as an employee.
(b) Volunteer referred to in paragraph (a) of this section may not
perform any services or duties or engage in activities which will
supplant the hiring of employed workers. This prohibition is violated
if, prior to engaging a volunteer, an agency or organization referred to
in Sec. 1216.1-2(c) had intended to hire a person to undertake all or a
substantial part of the services, duties, or other activities to be
provided by the volunteer.
(c) Volunteers referred to in paragraph (a) of this section may not
perform any services or duties or engage in activities which result in
the displacement of employed workers. Such volunteers may not perform
services or duties which have been performed by or were assigned to, any
of the following:
(1) Presently employed workers,
(2) Employees who recently resigned or were discharged,
(3) Employees who are on leave (terminal, temporary, vacation,
emergency, or sick), or
(4) Employees who are on strike or who are being locked out.
[[Page 37]]
(d) Volunteers referred to in paragraph (a) of this section may not
perform any services or duties or engage in activities which impair
existing contracts for service. This prohibition is violated if a
contract for services is modified or cancelled because an agency or
organization referred to in Sec. 1216.1-2(b) engages a volunteer to
provide or perform all or a substantial part of any services, duties, or
other activities set forth in such contract. The term ``contract for
services'' includes but is not limited to contracts, understandings and
arrangements, either written or oral, to provide professional,
managerial, technical, or administrative services.
(e) Agencies and organizations referred to in Sec. 1216.1-2(b) are
prohibited from assigning or permitting volunteers referred to in Sec.
1216.1-2(a) to perform any services or duties or engage in any
activities prohibited by paragraphs (a) through (d) of this section.
Sec. 1216.1-4 Exceptions.
(a) The requirements of Sec. 1216.1-3 are not applicable to the
following, or similar, situations:
(1) Funds are unavailable for the employment of sufficient staff to
accomplish a program authorized or of a character eligible for
assistance under the Act and the activity, service, or duty is otherwise
appropriate for the assignment of a volunteer.
(2) Volunteer services are required in order to avoid or relieve
suffering threatened by or resulting from major natural disasters or
civil disturbances.
(3) Reasonable efforts to obtain employed workers have been
unsuccessful due to the unavailability of persons within the community
who are able, willing, and qualified to perform the needed activities.
(4) The assignment of volunteers will significantly expand services
to a target community over those which could be performed by existing
paid staff, and the activity, service or duty is otherwise appropriate
for the assignment of a volunteer and no actual displacement of paid
staff will occur as a result of the assignment.
(b) For the purposes of paragraphs (a)(1) and (4) of this section,
the assignment is not appropriate for the assignment of a volunteer if:
(1) The service, duty, or activity is principally a routine
administrative or clerical task. This definition applies only to any
service, duty, or activity performed by a volunteer receiving financial
support apart from reimbursement for expenses.
(2) The volunteer is not directly in contact with groups or
individuals whom the Act is designed to serve or is not performing
services, duties, or engaged in activities authorized or of a character
eligible for assistance under the Act.
PART 1217 1219 [RESERVED]
PART 1220_PAYMENT OF VOLUNTEER LEGAL EXPENSES--Table of Contents
Subpart A_General
Sec.
1220.1-1 Purpose.
Subpart B_Criminal Proceedings
1220.2-1 Full-time volunteers.
1220.2-2 Part-time volunteers.
1220.2-3 Procedure.
Subpart C_Civil and Administrative Proceedings
1220.3-1 Full-time volunteers.
1220.3-2 Part-time volunteers.
1220.3-3 Procedure.
Authority: 42 U.S.C. 5059.
Source: 40 FR 28800, July 9, 1975, unless otherwise noted.
Subpart A_General
Sec. 1220.1-1 Purpose.
This part implements section 419 of the Domestic Volunteer Service
Act of 1973, Public Law 93-113 (the ``Act''). This part provides rules
to ensure that the Corporation for National and Community Service, which
administers the three federal programs, the Foster Grandparent Program
(FGP), the Senior Companion Program (SCP), and The Retired and Senior
Volunteer Program (RSVP), pays the expenses incurred in
[[Page 38]]
judicial and administrative proceedings for the defense of those
volunteers serving in those programs. Payment of such expenses by CNCS
for those volunteers include payment of counsel fees, court costs, bail
or other expenses incidental to the volunteer's defense.
[80 FR 63458, Oct. 20, 2015]
Subpart B_Criminal Proceedings
Sec. 1220.2-1 Full-time volunteers.
(a)(1) The Corporation for National and Community Service will pay
all reasonable expenses for defense of full-time volunteers up to and
including the arraignment of Federal, state, and local criminal
proceedings, except in cases where it is clear that the charged offense
results from conduct which is not related to his service as a volunteer.
(2) Situations where conduct is clearly unrelated to a volunteer's
service are those that arise either:
(i) In a period prior to volunteer service,
(ii) Under circumstances where the volunteer is not at his assigned
volunteer project location, such as during periods of administrative,
vacation, or emergency leave, or
(iii) When he is at his volunteer station, but the activity or
action giving rise to the charged offense is clearly not part of, or
required by, such assignment.
(b) Reasonable expenses in criminal proceedings beyond arraignment
may be paid in cases where:
(1) The charge against the volunteer relates to his assignment or
status as a volunteer, and not his personal status or personal matters.
A charge relating to a volunteer's assignment arises out of any activity
or action which is a part of, or required by, such assignment. A charge
relating to a volunteer's status is motivated exclusively by the fact
that a defendant is a volunteer.
(2) The volunteer has not admitted a willful or knowing violation of
law, and
(3) The charge(s) is not a minor misdemeanor, such as a minor
vehicle violation for which a fine or bail forfeiture will not exceed
$100.
(c) Notwithstanding the foregoing, there may be situations in which
the criminal proceeding results from a situation which could give rise
to a civil claim under the Federal Tort Claims Act. In such situations,
the Justice Department may agree to defend the volunteer. In those
cases, unless there is a conflict between the volunteer's interest and
that of the government, the Corporation for National and Community
Service will not pay for additional private representation for the
volunteer.
[40 FR 28800, July 9, 1975, as amended at 80 FR 63458, Oct. 20, 2015]
Sec. 1220.2-2 Part-time volunteers.
(a) With respect to a part-time volunteer, the Corporation for
National and Community Service will reimburse a sponsor for the
reasonable expense it incurs for the defense of the volunteer in
Federal, state and local criminal proceedings, including arraignment,
only under the following circumstances:
(1) The proceeding arises directly out of the volunteer's
performance of activities pursuant to the Act;
(2) The volunteer receives, or is eligible to receive, compensation,
including allowances, stipend, or reimbursement for out-of-pocket
expenses, under a Corporation for National and Community Service grant
project; and
(3) The conditions specified in paragraphs (b) (2) and (3) in Sec.
1220.2-1 are met.
(b) In certain circumstances volunteers who are ineligible for
reimbursement of legal expenses by the Corporation for National and
Community Service may be eligible for representation under the Criminal
Justice Act (18 U.S.C. 3006A).
[40 FR 28800, July 9, 1975, as amended at 80 FR 63458, Oct. 20, 2015]
Sec. 1220.2-3 Procedure.
(a) Immediately upon the arrest of any volunteer under circumstances
in which the payment or bail to prevent incarceration or other serious
consequences to the volunteer or the retention of an attorney prior to
arraignment is necessary and is covered under
[[Page 39]]
Sec. 1220.2-1 or Sec. 1220.2-2, sponsors shall immediately notify the
appropriate Corporation for National and Community Service state office
or if the state office cannot be reached, the appropriate Area Manager.
(b) Immediately after notification of the appropriate state office,
and with the approval thereof, the sponsor shall advance up to $500 for
the payment of bail or such other legal expenses as are necessary prior
to arraignment to prevent the volunteer from being incarcerated. In the
event it is subsequently determined that the Corporation for National
and Community Service or a sponsor is not responsible under this policy
for the volunteer's defense, any such advance may be recovered directly
from the volunteer or from allowances, stipends, or out-of-pocket
expenses which are payable or become payable to the volunteer. In the
case of a grassroots sponsor of full-time volunteers that is not able to
provide the $500, the Corporation for National and Community Service
state office or Area Manager shall immediately make such sum available
to the sponsor.
(c) Immediately upon receipt of notification from the sponsor, the
state or regional office shall notify the General Counsel, giving all
facts and circumstances at that time known to such office. Thereafter
the office shall cooperate with the General Counsel in making an
investigation of all surrounding facts and circumstances and shall
provide such information immediately to the General Counsel.
(d) The General Counsel shall, upon notification by the state office
or Area Manager, determine the extent to which the Corporation for
National and Community Service will provide funds for the volunteer's
defense or reimburse a sponsor for funds it spends on the volunteer's
behalf. Included in this responsibility shall be the negotiation of fees
and approval of other costs and expenses. State offices and Area
Managers are not authorized to commit the Corporation for National and
Community Service to the payment of volunteers' legal expenses or to
reimburse a sponsor except as provided in this section, without the
express consent of the General Counsel. Additionally, the General
Counsel shall, in cases arising directly out of the performance of
authorized project activities, ascertain whether the services of the
United States Attorney can be made available to the volunteer.
(e) The sponsor and the state and regional office shall have a
continuing responsibility for cooperation and coordination with the
Office of General Counsel during the pendency of any such litigation,
and of notifying the General Counsel of any facts and circumstances
which come to the attention of such office or the sponsor which affects
such litigation.
[40 FR 28800, July 9, 1975, as amended at 80 FR 63458, Oct. 20, 2015]
Subpart C_Civil and Administrative Proceedings
Sec. 1220.3-1 Full-time volunteers.
The Corporation for National and Community Service will pay
reasonable expenses incurred in the defense of full-time volunteers in
Federal, state, and local civil judicial and administrative proceedings
where:
(a) The complaint or charge against the volunteer is directly
related to his volunteer service and not to his personal activities or
obligations.
(b) The volunteer has not admitted willfully or knowingly pursuing a
course of conduct which would result in the plaintiff or complainant
initiating such a proceeding, and
(c) If the judgment sought involves a monetary award, the amount
sought exceeds $100.
[40 FR 28800, July 9, 1975, as amended at 80 FR 63458, Oct. 20, 2015]
Sec. 1220.3-2 Part-time volunteers.
The Corporation for National and Community Service will reimburse
sponsors for the reasonable expenses incidental to the defense of part-
time volunteers in Federal, state, and local civil judicial and
administrative proceedings where:
(a) The proceeding arises directly out of the volunteer's
performance of activities pursuant to the Act;
(b) The volunteer receives or is eligible to receive compensation,
including allowances, stipend, or reimbursement for out-of-pocket
expenses under the
[[Page 40]]
Corporation for National and Community Service grant; and
(c) The conditions specified in Sec. 1220.3-1(b) and (c) are met.
[80 FR 63458, Oct. 20, 2015]
Sec. 1220.3-3 Procedure.
Immediately upon the receipt by a volunteer of any court papers or
administrative orders making a party to any proceeding covered under
Sec. 1220.3-1 or Sec. 1220.3-2, the volunteer shall immediately notify
his sponsor who in turn shall notify the appropriate Corporation for
National and Community Service state office. The procedures referred to
in Sec. 1220.2-3(c) through (e) shall thereafter be followed as
appropriate.
[80 FR 63459, Oct. 20, 2015]
PART 1222 [RESERVED]
PART 1225_VOLUNTEER DISCRIMINATION COMPLAINT PROCEDURE--
Table of Contents
Subpart A_General Provisions
Sec.
1225.1 Purpose.
1225.2 Policy.
1225.3 Definitions.
1225.4 Coverage.
1225.5 Representation.
1225.6 Freedom from reprisal.
1225.7 Review of allegations of reprisal.
Subpart B_Processing Individual Complaints of Discrimination
1225.8 Precomplaint procedure.
1225.9 Complaint procedure.
1225.10 Corrective action.
1225.11 Amount of attorney fees.
Subpart C_Processing Class Complaints of Discrimination
1225.12 Precomplaint procedure.
1225.13 Acceptance, rejection, or cancellation of complaint.
1225.14 Consolidation of complaints.
1225.15 Notification and opting out.
1225.16 Investigation and adjustment of complaint.
1225.17 Agency decision.
1225.18 Notification of class members of decision.
1225.19 Corrective action.
1225.20 Claim appeals.
1225.21 Statutory rights.
Authority: Secs. 417, 402(14), 420, Pub. L. 93-113, 87 Stat. 398,
407, and 414; Sec. 5(a), Pub. L. 87-293, 75 Stat. 613; Executive Order
12137, issued May 16, 1979.
Source: 46 FR 1609, Jan. 6, 1981, unless otherwise noted.
Subpart A_General Provisions
Sec. 1225.1 Purpose.
The purpose of this part is to establish a procedure for the filing,
investigation, and administrative determination of allegations of
discrimination based on race, color, national origin, religion, age,
sex, handicap or political affiliation, which arise in connection with
the recruitment, selection, placement, service, or termination of Peace
Corps and ACTION applicants, trainees, and Volunteers for full-time
service.
Sec. 1225.2 Policy.
It is the policy of Peace Corps and ACTION to provide equal
opportunity in all its programs for all persons and to prohibit
discrimination based on race, color, national origin, religion, age,
sex, handicap or political affiliation, in the recruitment, selection,
placement, service, and termination of Peace Corps and ACTION
Volunteers. It is the policy of Peace Corps and ACTION upon determining
that such prohibited discrimination has occurred, to take all necessary
corrective action to remedy the discrimination, and to prevent its
recurrence.
Sec. 1225.3 Definitions.
Unless the context requires otherwise, in this Part:
(a) Director means the Director of Peace Corps for all Peace Corps
applicant, trainee, or Volunteer complaints processed under this part,
or the Director of ACTION for all domestic applicant, trainee, or
Volunteer complaints processed under this part. The term shall also
refer to any designee of the respective Director.
(b) EO Director means the Director of the Equal Opportunity Division
of the Office of Compliance, ACTION. The term shall also refer to any
designee of the EO Director.
(c) Illegal discrimination means discrimination on the basis of
race, color,
[[Page 41]]
national origin, religion, age, sex, handicap or political affiliation
as defined in section 5(a) of the Peace Corps Act (22 U.S.C. 2504);
section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000-16); Title V
of the Rehabilitation Act of 1973 (29 U.S.C. 791, et seq.); and the Age
Discrimination Act of 1975 (42 U.S.C. 6101, et seq.). Further
clarification of the scope of matters covered by this definition may be
obtained by referring to the following regulations: Sex Discrimination:
29 CFR part 1604; Religious Discrimination: 29 CFR part 1605; National
Origin Discrimination: 29 CFR part 1606; Age Discrimination: 45 CFR part
90; Handicap Discrimination: 29 CFR 1613.701 through 1613.707.
(d) Applicant means a person who has submitted to the appropriate
agency personnel a completed application required for consideration of
eligibility for Peace Corps or ACTION volunteer service. ``Applicant''
may also mean a person who alleges that the actions of agency personnel
precluded him or her from submitting such an application or any other
information reasonably required by the appropriate personnel as
necessary for a determination of the individual's eligibility for
volunteer service.
(e) Trainee means a person who has accepted an invitation issued by
Peace Corps or ACTION and has registered for Peace Corps or ACTION
training.
(f) Volunteer means a person who has completed successfully all
necessary training; met all clearance standards; has taken, if required,
the oath prescribed in either section 5(j) of the Peace Corps Act (22
U.S.C. 2504), or section 104(c) of the Volunteer Service Act of 1973, as
amended (42 U.S.C. 104(c)) and has been enrolled as a full-time
Volunteer by the appropriate agency.
(g) Complaint means a written statement signed by the complainant
and submitted to the EO Director. A complaint shall set forth
specifically and in detail:
(1) A description of the Peace Corps or ACTION management policy or
practice, if any, giving rise to the complaint;
(2) A detailed description including names and dates, if possible,
of the actions of the Peace Corps or ACTION officials which resulted in
the alleged illegal discrimination;
(3) The manner in which the Peace Corps or ACTION action directly
affected the complainant; and
(4) The relief sought.
A complaint shall be deemed filed on the date it is received by the
appropriate agency official. When a complaint does not conform with the
above definition, it shall nevertheless be accepted. The complainant
shall be notified of the steps necessary to correct the deficiencies of
the complaint. The complainant shall have 30 days from his or her
receipt of notification of the complaint defects to resubmit an amended
complaint.
(h) Counselor means an official designated by the EO Director to
perform the functions of conciliation as detailed in this part.
(i) Agent means a class member who acts for the class during the
processing of a class complaint. In order to be accepted as the agent
for a class complaint, in addition to those requirements of a complaint
found in Sec. 1225.3(g) of this part, the complaint must meet the
requirements for a class complaint as found in subpart C of these
regulations.
Sec. 1225.4 Coverage.
(a) These procedures apply to all Peace Corps or ACTION applicants,
trainees, and Volunteers throughout their term of service with the Peace
Corps or ACTION. When an applicant, trainee, or Volunteer makes a
complaint which contains an allegation of illegal discrimination in
connection with an action that would otherwise be processed under a
grievance, early termination, or other administrative system of the
agency, the allegation of illegal discrimination shall be processed
under this part. At the discretion of the appropriate Director, any
other issues raised may be consolidated with the discrimination
complaint for processing under these regulations. Any issues which are
not so consolidated shall continue to be processed under those
procedures in which they were originally raised.
(b) The submission of class complaints alleging illegal
discrimination
[[Page 42]]
as defined above will be handled in accordance with the procedure
outlined in subpart C.
Sec. 1225.5 Representation.
Any aggrieved party may be represented and assisted in all stages of
these procedures by an attorney or representative of his or her own
choosing. An aggrieved party must immediately inform the agency if
counsel is retained. Attorney fees or other appropriate relief may be
awarded in the following circumstances:
(a) Informal adjustment of a complaint. An informal adjustment of a
complaint may include an award of attorney fees or other relief deemed
appropriate by the EO Director. Where the parties agree on an adjustment
of the complaint, but cannot agree on whether attorney fees or costs
should be awarded, or on their amount, this issue may be appealed to the
appropriate Director to be determined in the manner detailed in Sec.
1225.11 of this part.
(b) Final Agency Decision. When discrimination is found, the
appropriate Director shall advise the complainant that any request for
attorney fees or costs must be documented and submitted for review
within 20 calendar days after his or her receipt of the final agency
decision. The amount of such awards shall be determined under Sec.
1225.11. In the unusual situation in which it is determined not to award
attorney fees or other costs to a prevailing complainant, the
appropriate Director in his or her final decision shall set forth the
specific reasons thereof.
Sec. 1225.6 Freedom from reprisal.
Aggrieved parties, their representatives, and witnesses will be free
from restraint, interference, coercion, discrimination, or reprisal at
any stage in the presentation and processing of a complaint, including
the counseling stage described in Sec. 1225.8 of this part, or any time
thereafter.
Sec. 1225.7 Review of allegations of reprisal.
An aggrieved party, his or her representative, or a witness who
alleges restraint, interference, coercion, discrimination, or reprisal
in connection with the presentation of a complaint under this part, may,
if covered by this part, request in writing that the allegation be
reviewed as an individual complaint of discrimination subject to the
procedures described in Subpart B or that the allegation be considered
as an issue in the complaint at hand.
Subpart B_Processing Individual Complaints of Discrimination
Sec. 1225.8 Precomplaint procedure.
(a) An aggrieved person who believes that he or she has been subject
to illegal dicrimination shall bring such allegations to the attention
of the appropriate Counselor within 30 days of the alleged
discrimination to attempt to resolve them. The process for notifying the
appropriate Counselor is the following:
(1) Aggrieved applicants, trainees or Volunteers who have not
departed for overseas assignments, or who have returned to Washington
for any administrative reason shall direct their allegations to the EO
Director for assignment to an appropriate Counselor.
(2) Aggrieved trainees or Volunteers overseas shall direct their
allegations to the designated Counselor for that post.
(3) Aggrieved applicants, trainees, and Volunteers applying for, or
enrolled in ACTION domestic programs shall direct their allegations to
the designated Counselor for that Region.
(b) Upon receipt of the allegation, the Counselor or designee shall
make whatever inquiry is deemed necessary into the facts alleged by the
aggrieved party and shall counsel the aggrieved party for the purpose of
attempting an informal resolution agreeable to all parties. The
Counselor will keep a written record of his or her activities which will
be submitted to the EO Director if a formal complaint concerning the
matter is filed.
(c) If after such inquiry and counseling an informal resolution to
the allegation is not reached, the Counselor shall notify the aggrieved
party in writing of the right to file a complaint of discrimination with
the EO Director within 15 calendar days of the aggrieved party's receipt
of the notice.
[[Page 43]]
(d) The Counselor shall not reveal the identity of the aggrieved
party who has come to him or her for consultation, except when
authorized to do so by the aggrieved party. However, the identity of the
aggrieved party may be revealed once the agency has accepted a complaint
of discrimination from the aggrieved party.
Sec. 1225.9 Complaint procedure.
(a) EO Director. (1) The EO Director must accept a complaint if the
process set forth above has followed, and the complaint states a charge
of illegal discrimination. The agency will extend the time limits set
herein (a) when the complainant shows that he or she was not notified of
the time limits and was not otherwise aware of them, or (b) the
complainant shows that he or she was prevented by circumstances beyond
his or her control from submitting the matter in a timely fashion, or
(c) for other reasons considered sufficiently by the agency. At any time
during the complaint procedure, the EO Director may cancel a complaint
because of failure of the aggrieved party to prosecute the complaint. If
the complaint is rejected for failure to meet one or more of the
requirements set out in the procedure outlined in Sec. 1225.8 or is
cancelled, the EO Director shall inform the aggrieved party in writing
of this Final Agency Decision; that the Peace Corps or ACTION will take
no further action; and of the right, to file a civil action as described
in Sec. 1225.21 of this part.
(2) Upon acceptance of the complaint and receipt of the Counselor's
report, the EO Director shall provide for the prompt investigation of
the complaint. Whenever possible, the person assigned to investigate the
complaint shall occupy a position in the agency which is not, directly
or indirectly, under the jurisdiction of the head of that part of the
agency in which the complaint arose. The investigation shall include a
thorough review of the circumstances under which the alleged
discrimination occurred, and any other circumstances which may
constitute, or appear to constitute discrimination against the
complainant. The investigator shall compile an investigative file, which
includes a summary of the investigation, recommended findings of fact
and a recommended resolution of the complaint. The investigator shall
forward the investigative file to the EO Director and shall provide the
complainant with a copy.
(3) The EO Director shall review the complaint file including any
additional statements provided by the complainant, make findings of
fact, and shall offer an adjustment of the complaint if the facts
support the complaint. If the proposed adjustment is agreeable to all
parties, the terms of the adjustment shall be reduced to writing, signed
by both parties, and made part of the complaint file. A copy of the
terms of the adjustment shall be provided the complainant. If the
proposed adjustment of the complaint is not acceptable to the
complainant, or the EO Director determines that such an offer is
inappropriate, the EO Director shall forward the complaint file with a
written notification of the findings of facts, and his or her
recommendation of the proposed disposition of the complaint to the
appropriate Director. The aggrieved party shall receive a copy of the
notification and recommendation and shall be advised of the right to
appeal the recommended disposition to the appropriate Director. Within
ten (10) calendar days of receipt of such notice, the complainant may
submit his or her appeal of the recommended disposition to the
appropriate Director.
(b) Appeal to Director. If no timely notice of appeal is received
from the aggrieved party, the appropriate Director or designee may adopt
the proposed disposition as the Final Agency Decision. If the aggrieved
party appeals, the appropriate Director or designee, after review of the
total complaint file, shall issue a decision to the aggrieved party. The
decision of the appropriate Director shall be in writing, state the
reasons underlying the decision, shall be the Final Agency Decision,
shall inform the aggrieved party of the right to file a civil action as
described in Sec. 1225.21 of this part, and, if appropriate, designate
the procedure to be followed for the award of attorney fees or costs.
[[Page 44]]
Sec. 1225.10 Corrective action.
When it has been determined by Final Agency Decision that the
aggrieved party has been subjected to illegal discrimination, the
following corrective actions may be taken:
(a) Selection as a Trainee for aggrieved parties found to have been
denied selection based on prohibited discrimination.
(b) Reappointment to Volunteer service for aggrieved parties found
to have been early-terminated as a result of prohibited discrimination.
To the extent possible, a Volunteer will be placed in the same position
previously held. However, reassignment to the specific country of prior
service, or to the specific position previously held, is contingent on
several programmatic considerations such as the continued availability
of the position, or program in that country, and acceptance by the host
country of such placement. If the same position is deemed to be no
longer available, the aggrieved party will be offered a reassignment to
a position in as similar circumstances to the position previously held,
or to resign from service for reasons beyond his or her control. Such a
reassignment may require both additional training and an additional two
year commitment to volunteer service.
(c) Provision for reasonable attorney fees and other costs incurred
by the aggrieved party.
(d) Such other relief as may be deemed appropriate by the Director
of Peace Corps or ACTION.
Sec. 1225.11 Amount of attorney fees.
(a) When a decision of the agency provides for an award of
attorney's fees or costs, the complainant's attorney shall submit a
verified statement of costs and attorney's fees as appropriate, to the
agency within 20 days of receipt of the decision. A statement of
attorney's fees shall be accompanied by an affidavit executed by the
attorney of record itemizing the attorney's charges for legal services.
Both the verified statement and the accompanying affidavit shall be made
a part of the complaint file. The amount of attorney's fees or costs to
be awarded the complainant shall be determined by agreement between the
complainant, the complainant's representative and the appropriate
Director. Such agreement shall immediately be reduced to writing. If the
complainant, the representative and the agency cannot reach an agreement
on the amount of attorney's fees or costs within 20 calendar days of
receipt of the verified statement and accompanying affidavit, the
appropriate Director shall issue a decision determining the amount of
attorney fees or costs within 30 calendar days of receipt of the
statement and affidavit. Such decision shall include the specific
reasons for determining the amount of the award.
(b) The amount of attorney's fees shall be made in accordance with
the following standards: The time and labor required, the novelty and
difficulty of the questions, the skills requisite to perform the legal
service properly, the preclusion of other employment by the attorney due
to acceptance of the case, the customary fee, whether the fee is fixed
or contingent, time limitation imposed by the client or the
circumstances, the amount involved and the results obtained, the
experience, reputation, and ability of the attorney, the undesirability
of the case, the nature and length of the professional relationship with
the client, and the awards in similar cases.
Subpart C_Processing Class Complaints of Discrimination
Sec. 1225.12 Precomplaint procedure.
An applicant, trainee or Volunteer who believes that he or she is
among a group of present or former Peace Corps or ACTION Volunteers,
trainees, or applicants for volunteer service who have been illegally
discriminated against and who wants to be an agent for the class shall
follow those precomplaint procedures outlined in Sec. 1225.8 of this
part.
Sec. 1225.13 Acceptance, rejection or cancellation of complaint.
(a) Upon receipt of a class complaint, the Counselor's report, and
any other information pertaining to timeliness or other relevant
circumstances related to the complaint, the EO Director shall review the
file to determine whether to
[[Page 45]]
accept or reject the complaint, or a portion thereof, for any of the
following reasons:
(1) It was not timely filed;
(2) It consists of an allegation which is identical to an allegation
contained in a previous complaint filed on behalf of the same class
which is pending in the agency or which has been resolved or decided by
the agency;
(3) It is not within the purview of this subpart;
(4) The agent failed to consult a Counselor in a timely manner;
(5) It lacks specificity and detail;
(6) It was not submitted in writing or was not signed by the agent;
(7) It does not meet the following prerequisites.
(i) The class is so numerous that a consolidated complaint of the
members of the class is impractical;
(ii) There are questions of fact common to the class;
(iii) The claims of the agent of the class are representative of the
claims of the class;
(iv) The agent of the class, or his or her representative will
fairly and adequately protect the interest of the class.
(b) If an allegation is not included in the Counselor's report, the
EO Director shall afford the agent 15 calendar days to explain whether
the matter was discussed and if not, why he or she did not discuss the
allegation with the Counselor. If the explanation is not satisfactory,
the EO Director may decide to reject the allegation. If the explanation
is satisfactory, the EO Director may require further counseling of the
agent.
(c) If an allegation lacks specificity and detail, or if it was not
submitted in writing or not signed by the agent, the EO Director shall
afford the agent 30 days from his or her receipt of notification of the
complaint defects to resubmit an amended complaint. The EO Director may
decide that the agency reject the complaint if the agent fails to
provide such information within the specified time period. If the
information provided contains new allegations outside the scope of the
complaint, the EO Director must advise the agent how to proceed on an
individual or class basis concerning these allegations.
(d) The EO Director may extend the time limits for filing a
complaint and for consulting with a Counselor when the agent, or his or
her representative, shows that he or she was not notified of the
prescribed time limits and was not otherwise aware of them or that he or
she was prevented by circumstances beyond his or her control from acting
within the time limit.
(e) When appropriate, the EO Director may determine that a class be
divided into subclasses and that each subclass be treated as a class,
and the provisions of this section then shall be construed and applied
accordingly.
(f) The EO Director may cancel a complaint after it has been
accepted because of failure of the agent to prosecute the complaint.
This action may be taken only after:
(1) The EO Director has provided the agent a written request,
including notice of proposed cancellation, that he or she provide
certain information or otherwise proceed with the complaint; and
(2) Within 30 days of his or her receipt of the request.
(g) An agent must be informed by the EO Director in a request under
paragraph (b) or (c) of this section that his or her complaint may be
rejected if the information is not provided.
Sec. 1225.14 Consolidation of complaints.
The EO Director may consolidate the complaint if it involves the
same or sufficiently similar allegations as those contained in a
previous complaint filed on behalf of the same class which is pending in
the agency or which has been resolved or decided by the agency.
Sec. 1225.15 Notification and opting out.
(a) Upon acceptance of a class complaint, the agency, within 30
calendar days, shall use reasonable means, such as delivery, mailing,
distribution, or posting, to notify all class members of the existence
of the class complaint.
(b) A notice shall contain:
(1) The name of the agency or organizational segment thereof, its
location and the date of acceptance of the complaint;
(2) A description of the issues accepted as part of the class
complaint;
[[Page 46]]
(3) An explanation that class members may remove themselves from the
class by notifying the agency within 30 calendar days after issuance of
the notice; and
(4) An explanation of the binding nature of the final decision or
resolution of the complaint.
Sec. 1225.16 Investigation and adjustment of complaint.
The complaint shall be processed promptly after it has been
accepted. Once a class complaint has been accepted, the procedure
outlined in Sec. 1225.9 of this part shall apply.
Sec. 1225.17 Agency decision.
(a) If an adjustment of the complaint cannot be made the procedures
outlined in Sec. 1225.9 shall be followed by the EO Director except
that any notice required to be sent to the aggrieved party shall be sent
to the agent of the class or his or her representative.
(b) The Final Agency Decision on a class complaint shall be binding
on all members of the class.
Sec. 1225.18 Notification of class members of decision.
Class members shall be notified by the agency of the final agency
decision and corrective action, if any, using at the minimum, the same
media employed to give notice of the existence of the class complaint.
The notice, where appropriate, shall include information concerning the
rights of class members to seek individual relief and of the procedures
to be followed. Notice shall be given by the agency within ten (10)
calendar days of the transmittal of its decision to the agent.
Sec. 1225.19 Corrective action.
(a) When discrimination is found, Peace Corps or ACTION must take
appropriate action to eliminate or modify the policy or practice out of
which such discrimination arose, and provide individual corrective
action to the agent and other class members in accordance with Sec.
1225.10 of this part.
(b) When discrimination is found and a class member believes that
but for that discrimination he or she would have been accepted as a
Volunteer or received some other volunteer service benefit, the class
member may file a written claim with the EO Director within thirty (30)
calendar days of notification by the agency of its decision.
(c) The claim must include a specific, detailed statement showing
that the claimant is a class member who was affected by an action or
matter resulting from the discriminatory policy or practice which arose
not more than 30 days preceding the filing of the class complaint.
(d) The agency shall attempt to resolve the claim within sixty (60)
calendar days after the date the claim was postmarked, or, in the
absence of a postmark, within sixty (60) calendar days after the date it
was received by the EO Director.
Sec. 1225.20 Claim appeals.
(a) If the EO Director and claimant do not agree that the claimant
is a member of the class, or upon the relief to which the claimant is
entitled, the EO Director shall refer the claim, with recommendations
concerning it to the appropriate Director for Final Agency Decision and
shall so notify the claimant. The class member may submit written
evidence to the appropriate Director concerning his or her status as a
member of the class. Such evidence must be submitted no later than ten
(10) calendar days after receipt of referral.
(b) The appropriate Director shall decide the issue within thirty
(30) days of the date of referral by the EO Director. The claimant shall
be informed in writing of the decision and its basis and that it will be
the Final Agency Decision on the issue.
Sec. 1225.21 Statutory rights.
(a) A Volunteer, trainee, or applicant is authorized to file a civil
action in an appropriate U.S. District Court:
(1) Within thirty (30) calendar days of his or her receipt of notice
of final action taken by the agency.
(2) After one hundred eighty (180) calendar days from the date of
filing a complaint with the agency if there has been no final agency
action.
(b) For those complaints alleging discrimination that occur outside
the United States, the U.S. District Court
[[Page 47]]
for the District of Columbia shall be deemed the appropriate forum.
PART 1226_PROHIBITIONS ON ELECTORAL AND LOBBYING ACTIVITIES
--Table of Contents
Subpart A_General Provisions
Sec.
1226.1 Purpose.
1226.2 Scope.
1226.3 Definitions.
Subpart B_Sponsoring Organization
1226.4 General.
1226.5 Electoral, voter registration, and other activities.
Subpart C_Volunteer Activities
1226.6 General.
1226.7 Scope.
1226.8 Prohibited activities.
1226.9 Exceptions.
Subpart D_Sponsor Employee Activities
1226.10 Sponsor employees.
1226.11 Obligation of sponsors.
Authority: 42 U.S.C. 5043.
Source: 46 FR 8522, Jan. 27, 1981, unless otherwise noted.
Subpart A_General Provisions
Sec. 1226.1 Purpose.
This part implements sections 403(a) and (b) of the Domestic
Volunteer Service Act of 1973, Public Law 93-113, as amended,
hereinafter referred to as the Act, pertaining to the prohibited use of
Federal funds or involvement by certain Corporation for National and
Community Service programs and volunteers in electoral and lobbying
activities. This part implements those provisions of the Act, as they
apply to agency programs and volunteers authorized under title II of the
Act.
[80 FR 63459, Oct. 20, 2015]
Sec. 1226.2 Scope.
This part applies to all volunteers serving in a program authorized
by title II of the Act, including the Foster Grandparent Program, the
Senior Companion Program, and The Retired and Senior Volunteer Program
(RSVP). This part also applies to employees or sponsoring organizations,
whose salaries, or other compensation, are paid, in whole or in part,
with agency funds.
[80 FR 63459, Oct. 20, 2015]
Sec. 1226.3 Definitions.
(a) The Act means the Domestic Volunteer Service Act of 1973, as
amended, Pub. L. 93-113 (42 U.S.C. 4951 et seq.).
(b) Assistance means funds, volunteers or volunteer training, which
is paid for from funds appropriated for the purpose of supporting
activities under the Act, and includes locally provided funds required
by law, regulation or policy as a local contribution to activities
authorized by the Act.
(c) Full time when used in the context of volunteer service, means
service of not less than 35 hours per week.
(d) Part time when used in the context of volunteer service, means
service that is less than full time.
(e) Recipient or sponsor organization means any organization that
receives assistance under the Act.
(f) Volunteer means an individual enrolled for service in a program
or project that is authorized by or which receives assistance under the
Act.
(g) Legislative body includes the United States Congress, State and
Territorial Legislatures and locally elected or appointed bodies with
the authority to enact laws.
(h) Public office includes any Federal, State, local elective, or
party office.
(i) Party office means an elective position in a national, state or
local organization or committees or convention of such organization,
which has, as a principal purpose, support or opposition to candidates
for public office.
(j) Legislation means bills, resolutions, amendments, nominations
and other matters pending or proposed in a legislative body and includes
any other matter which may be the subject of action by the legislative
body.
Subpart B_Sponsoring Organization
Sec. 1226.4 General.
Under section 403 of the Act, volunteer programs may not be
conducted in a manner which supports or results in the identification of
such programs
[[Page 48]]
with prohibited activities. This section prescribes the nature and
extent of involvement in such activity by an organization which would
preclude the assignment of volunteers to the organization.
Sec. 1226.5 Electoral, voter registration, and other activities.
Volunteers or other assistance, in any program under the Act shall
not be assigned or provided to an organization if a principal purpose or
activity of the organization includes any of the following activities:
(a) Electoral Activities. Any activity designed to influence the
outcome of elections to any public office, such as:
(1) Actively campaigning for or against or supporting candidates for
public office;
(2) Raising, soliciting or collecting funds for candidates for
public office;
(3) Preparing, distributing or providing funds for campaign
literature for candidates, including leaflets pamphlets, and material
designed for the print or electronic media;
(b) Voter Registration Activities. Any voter registration activity,
such as
(1) Providing transportation of individuals to voter registration
sites;
(2) Providing assistance to individuals in the process of
registering to vote, including determinations of eligibility;
(3) Disseminating official voter registration material.
(c) Transportation to the Polls. Providing voters or prospective
voters with transportation to the polls or raising, soliciting or
collecting funds for such activity.
(d) Any program sponsor which, subsequent to the receipt of any
federal assistance under the Act, makes as one of its principal purposes
or activities any of the activities described in Sec. 1226.5 hereof
shall be subject to the suspension or termination of such assistance, as
provided in 45 CFR part 1206.
Subpart C_Volunteer Activities
Sec. 1226.6 General.
(a) All volunteers, full and part time, are subject to the
prohibitions on expenditure of federal funds for partisan and
nonpartisan electoral activities, voter registration activities and
transportation of voters to the polls, and efforts to influence the
passage or defeat of legislation, as contained in section 403 of the
Act.
(b) Full time volunteers, and certain part time volunteers as
specified herein, are also subject to the restrictions in subchapter
III, chapter 73 of title 5, United States Code, commonly referred to as
the Hatch Act, as provided in section 415(b) of the Act.
Sec. 1226.7 Scope.
The provisions in this subpart are applicable to full time
volunteers as described in Sec. 1226.3(c), and to such part-time
volunteers as may be otherwise specified herein. Full time volunteers
are deemed to be acting in their capacity as volunteers:
(a) When they are actually engaged in their volunteer assignments;
or
(b) Whenever they represent themselves, or may reasonably be
perceived by others, to be performing as a volunteer.
[46 FR 8522, Jan. 27, 1981, as amended at 80 FR 63459, Oct. 20, 2015]
Sec. 1226.8 Prohibited activities.
(a) Electoral Activity. Volunteers shall not engage in any activity
which may, directly or indirectly, affect or influence the outcome of
any election to public office. Volunteers are prohibited from engaging
in activities such as:
(1) Any activity in support of, or in opposition to a candidate for
election to public office in a partisan or nonpartisan election;
(2) Participating in the circulation of petitions, or the gathering
of signatures on nominating petitions or similar documents for
candidates for public office.
(3) Raising, soliciting, or collecting funds for a candidate for
public office;
(4) Preparing, distributing or providing funds for campaign material
for candidates, including leaflets, pamphlets, brochures and material
designed for the print or electronic media;
(5) Organizing political meetings or forums;
(6) Canvassing voters on behalf of a candidate for public office;
[[Page 49]]
(7) Raising, soliciting or collecting funds for groups that engage
in any of the activities described in paragraphs (a) (1) through (6) of
this section.
(b) Voter Registration. Volunteers shall not engage in any voter
registration activity, including:
(1) Providing transportation of individuals to voter registration
sites;
(2) Providing assistance to individuals in the process of
registering to vote, including determinations of eligibility;
(3) The dissemination of official voter registration materials; or
(4) Raising, soliciting or collecting funds to support activities
described in paragraphs (b) (1) through (3) of this section.
(c) Transportation to the Polls. Volunteers shall not engage in any
activity to provide voters or prospective voters with transportation to
the polls, nor shall they collect, raise, or solicit funds to support
such activity, including securing vehicles for such activity.
(d) Efforts to Influence Legislation. Except as provided in Sec.
1226.9, volunteers shall not engage in any activity for the purpose of
influencing the passage or defeat of legislation or any measures on the
ballot at a general or special election. For example, volunteers shall
not:
(1) Testify or appear before legislative bodies in regard to
proposed or pending legislation;
(2) Make telephone calls, write letters, or otherwise contact
legislators or legislative staff, concerning proposed or pending
legislation for the purpose of influencing the passage or defeat of such
legislation;
(3) Draft legislation;
(4) Prepare legislative testimony;
(5) Prepare letters to be mailed by third parties to members of
legislative bodies concerning proposed or pending legislation;
(6) Prepare or distribute any form of material, including pamphlets,
newspaper columns, and material designed for either the print or
electronic media, which urges recipients to contact their legislator or
otherwise seek passage or defeat of legislation;
(7) Raise, collect or solicit funds to support efforts to affect the
passage or defeat of legislation;
(8) Engage in any of the activities set forth in paragraphs (d) (1)
through (7) of this section for the purpose of influencing executive
action in approving or vetoing legislation.
(9) Circulate petitions, gather signatures on petitions, or urge or
organize others to do so, which seek to have measures placed on the
ballot at a general or special election.
(10) Engage in any of the activities enumerated in paragraphs (d)
(1) through (9) of this section in regard to the passage or defeat of
any measure on the ballot in a general or special election.
Sec. 1226.9 Exceptions.
(a) A volunteer may draft, review, testify or make representations
to a legislative body regarding a legislative measure upon request of
the legislative body, a committee, or a member thereof, provided that:
(1) The request to draft, review, testify or make representations is
in writing, addressed to the volunteer or the organization to which the
volunteer is assigned or placed, and signed by a member or members of
the legislative body.
(2) The request states the type of representation or assistance
requested and the issue to be addressed.
(3) The volunteer or the program sponsor provides a copy of such
request to the State Director.
(b) The volunteer may draft, review, testify, or make a written
representation to a legislative body regarding an authorization or
appropriation measure directly affecting the operation of the project or
program to which he or she is assigned: Provided:
(1) The sponsor organization provides notification to the State
Director on a quarterly basis of all activity occurring pursuant to this
exception.
(2) The legislative measure relates to the funding of the project or
program or affects the existence or basic structure of the project or
program.
(c) Notwithstanding the foregoing exceptions, any activity by a
volunteer pursuant to paragraph (b) (1) or (2) of this section shall be
incidental to his or her regular work assignment.
[[Page 50]]
Subpart D_Sponsor Employee Activities
Sec. 1226.10 Sponsor employees.
Sponsor employees whose salaries or other compensation are paid, in
whole or in part, with agency funds are subject to the restrictions
described in Sec. 1226.8 and the exceptions in Sec. 1226.9:
(a) Whenever they are engaged in an activity which is supported by
Corporation for National and Community Service funds; or
(b) Whenever they identify themselves as acting in their capacity as
an official of a project which receives Corporation for National and
Community Service funds, or could reasonably be perceived by others as
acting in such capacity.
[46 FR 8522, Jan. 27, 1981. Redesignated and revised at 80 FR 63459,
Oct. 20, 2015]
Sec. 1226.11 Obligations of sponsors.
(a) It shall be the obligation of program sponsors to ensure that
they:
(1) Fully understand the restrictions on volunteer activity set
forth herein;
(2) Provide training to volunteers on the restrictions and ensure
that all other training materials used in training volunteers are fully
consistent with these restrictions;
(3) Monitor on a continuing basis the activity of volunteers for
compliance with this provision;
(4) Report all violations, or questionable situations, immediately
to the State Director.
(b) Failure of a sponsor to meet the requirements set forth in
paragraph (a) of this section, or a violation of the rules contained
herein by either the sponsor, the sponsor's employees subject to Sec.
1226.12 or the volunteers assigned to the sponsor, at any time during
the course of the grant may be deemed to be a material failure to comply
with the terms and conditions of the grant as that term is used in 45
CFR 1206.1 regarding suspension and termination of assistance or a
violation of the Project Memorandum of Agreement, as applicable. The
sponsor shall be subject to the procedures and penalties contained in 45
CFR 1206.1.
(c) Violation by a volunteer of any of the rules and regulations set
forth herein may be cause for suspension or termination as set forth in
45 CFR 1213.5-5(2) or other disciplinary action.
[46 FR 8522, Jan. 27, 1981. Redesignated at 80 FR 63459, Oct. 20, 2015]
PART 1230_NEW RESTRICTIONS ON LOBBYING--Table of Contents
Subpart A_General
Sec.
1230.100 Conditions on use of funds.
1230.105 Definitions.
1230.110 Certification and disclosure.
Subpart B_Activities by Own Employees
1230.200 Agency and legislative liaison.
1230.205 Professional and technical services.
1230.210 Reporting.
Subpart C_Activities by Other Than Own Employees
1230.300 Professional and technical services.
Subpart D_Penalties and Enforcement
1230.400 Penalties.
1230.405 Penalty procedures.
1230.410 Enforcement.
Subpart E_Exemptions
1230.500 Secretary of Defense.
Subpart F_Agency Reports
1230.600 Semi-annual compilation.
1230.605 Inspector General report.
Appendix A to Part 1230--Certification Regarding Lobbying
Appendix B to Part 1230--Disclosure Form To Report Lobbying
Authority: Section 319, Pub. L. 101-121 (31 U.S.C. 1352); Pub. L.
93-113; 42 U.S.C. 4951, et seq.; 42 U.S.C. 5060.
Source: 55 FR 6737, 6755, Feb. 26, 1990, unless otherwise noted.
Cross Reference: See also Office of Management and Budget notice
published at 54 FR 52306, December 20, 1989.
Subpart A_General
Sec. 1230.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative ageement to pay any person
for influencing or attempting to influence an officer or employee of any
agency, a
[[Page 51]]
Member of Congress, an officer or employee of Congress, or an employee
of a Member of Congress in connection with any of the following covered
Federal actions: the awarding of any Federal contract, the making of any
Federal grant, the making of any Federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal,
amendment, or modification of any Federal contract, grant, loan, or
cooperative agreement.
(b) Each person who requests or receives from an agency a Federal
contract, grant, loan, or cooperative agreement shall file with that
agency a certification, set forth in Appendix A, that the person has not
made, and will not make, any payment prohibited by paragraph (a) of this
section.
(c) Each person who requests or receives from an agency a Federal
contract, grant, loan, or a cooperative agreement shall file with that
agency a disclosure form, set forth in Appendix B, if such person has
made or has agreed to make any payment using nonappropriated funds (to
include profits from any covered Federal action), which would be
prohibited under paragraph (a) of this section if paid for with
appropriated funds.
(d) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a statement, set forth in Appendix A, whether that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
(e) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a disclosure form, set forth in Appendix B, if that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
Sec. 1230.105 Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal
executive departments and agencies as well as independent regulatory
commissions and Government corporations, as defined in 31 U.S.C.
9101(1).
(b) Covered Federal action means any of the following Federal
actions:
(1) The awarding of any Federal contract;
(2) The making of any Federal grant;
(3) The making of any Federal loan;
(4) The entering into of any cooperative agreement; and,
(5) The extension, continuation, renewal, amendment, or modification
of any Federal contract, grant, loan, or cooperative agreement.
Covered Federal action does not include receiving from an agency a
commitment providing for the United States to insure or guarantee a
loan. Loan guarantees and loan insurance are addressed independently
within this part.
(c) Federal contract means an acquisition contract awarded by an
agency, including those subject to the Federal Acquisition Regulation
(FAR), and any other acquisition contract for real or personal property
or services not subject to the FAR.
(d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
(e) Federal grant means an award of financial assistance in the form
of money, or property in lieu of money, by the Federal Government or a
direct appropriation made by law to any person. The term does not
include technical assistance which provides services instead of money,
or other assistance in the form of revenue sharing, loans, loan
guarantees, loan insurance, interest subsidies, insurance, or direct
United States cash assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided
in section 4 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450B). Alaskan Natives are included
[[Page 52]]
under the definitions of Indian tribes in that Act.
(h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
(i) Loan guarantee and loan insurance means an agency's guarantee or
insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
(k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
(1) An individual who is appointed to a position in the Government
under title 5, U.S. Code, including a position under a temporary
appointment;
(2) A member of the uniformed services as defined in section 101(3),
title 37, U.S. Code;
(3) A special Government employee as defined in section 202, title
18, U.S. Code; and,
(4) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act, title 5, U.S. Code
appendix 2.
(l) Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or employee for
work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
(n) Reasonable payment means, with respect to perfessional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier,
and subgrantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(p) Regularly employed means, with respect to an officer or employee
of a person requesting or receiving a Federal contract, grant, loan, or
cooperative agreement or a commitment providing for the United States to
insure or guarantee a loan, an officer or employee who is employed by
such person for at least 130 working days within one year immediately
preceding the date of the submission that initiates agency consideration
of such person for receipt of such contract, grant, loan, cooperative
agreement, loan insurance commitment, or loan guarantee commitment. An
officer or employee who is employed by such person for less than 130
working days within one year immediately preceding the date of the
submission that initiates agency consideration of such person shall be
considered to be regularly employed as soon as he or she is employed by
such person for 130 working days.
(q) State means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, a territory or possession of
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and
powers.
Sec. 1230.110 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form,
if required, with each submission that initiates agency consideration of
such person for:
[[Page 53]]
(1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form,
if required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
(2) A Federal loan or a commitment providing for the United States
to insure or guarantee a loan exceeding $150,000,
unless such person previously filed a certification, and a disclosure
form, if required, under paragraph (a) of this section.
(c) Each person shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that requires
disclosure or that materially affects the accuracy of the information
contained in any disclosure form previously filed by such person under
paragraphs (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action; or
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted
to influence or attempt to influence a covered Federal action.
(d) Any person who requests or receives from a person referred to in
paragraph (a) or (b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal
contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any
tier under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a
Federal loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a
Federal cooperative agreement,
shall file a certification, and a disclosure form, if required, to the
next tier above.
(e) All disclosure forms, but not certifications, shall be forwarded
from tier to tier until received by the person referred to in paragraph
(a) or (b) of this section. That person shall forward all disclosure
forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e)
of this section shall be treated as a material representation of fact
upon which all receiving tiers shall rely. All liability arising from an
erroneous representation shall be borne solely by the tier filing that
representation and shall not be shared by any tier to which the
erroneous representation is forwarded. Submitting an erroneous
certification or disclosure constitutes a failure to file the required
certification or disclosure, respectively. If a person fails to file a
required certification or disclosure, the United States may pursue all
available remedies, including those authorized by section 1352, title
31, U.S. Code.
(g) For awards and commitments in process prior to December 23,
1989, but not made before that date, certifications shall be required at
award or commitment, covering activities occurring between December 23,
1989, and the date of award or commitment. However, for awards and
commitments in process prior to the December 23, 1989 effective date of
these provisions, but not made before December 23, 1989, disclosure
forms shall not be required at time of award or commitment but shall be
filed within 30 days.
(h) No reporting is required for an activity paid for with
appropriated funds if that activity is allowable under either subpart B
or C.
Subpart B_Activities by Own Employees
Sec. 1230.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in Sec.
1230.100 (a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement
[[Page 54]]
if the payment is for agency and legislative liaison activities not
directly related to a covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any
information specifically requested by an agency or Congress is allowable
at any time.
(c) For purposes of paragraph (a) of this section, the following
agency and legislative liaison activities are allowable at any time only
where they are not related to a specific solicitation for any covered
Federal action:
(1) Discussing with an agency (including individual demonstrations)
the qualities and characteristics of the person's products or services,
conditions or terms of sale, and service capabilities; and,
(2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(d) For purposes of paragraph (a) of this section, the following
agencies and legislative liaison activities are allowable only where
they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation of
a covered Federal action;
(2) Technical discussions regarding the preparation of an
unsolicited proposal prior to its official submission; and,
(3) Capability presentations by persons seeking awards from an
agency pursuant to the provisions of the Small Business Act, as amended
by Pub. L. 95-507 and other subsequent amendments.
(e) Only those activities expressly authorized by this section are
allowable under this section.
Sec. 1230.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec.
1230.100 (a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement or
an extension, continuation, renewal, amendment, or modification of a
Federal contract, grant, loan, or cooperative agreement if payment is
for professional or technical services rendered directly in the
preparation, submission, or negotiation of any bid, proposal, or
application for that Federal contract, grant, loan, or cooperative
agreement or for meeting requirements imposed by or pursuant to law as a
condition for receiving that Federal contract, grant, loan, or
cooperative agreement.
(b) For purposes of paragraph (a) of this section, ``professional
and technical services'' shall be limited to advice and analysis
directly applying any professional or technical discipline. For example,
drafting of a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered
directly in the negotiation of a contract is allowable. However,
communications with the intent to influence made by a professional (such
as a licensed lawyer) or a technical person (such as a licensed
accountant) are not allowable under this section unless they provide
advice and analysis directly applying their professional or technical
expertise and unless the advice or analysis is rendered directly and
solely in the preparation, submission or negotiation of a covered
Federal action. Thus, for example, communications with the intent to
influence made by a lawyer that do not provide legal advice or analysis
directly and solely related to the legal aspects of his or her client's
proposal, but generally advocate one proposal over another are not
allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include
[[Page 55]]
those required by law or regulation, or reasonably expected to be
required by law or regulation, and any other requirements in the actual
award documents.
(d) Only those services expressly authorized by this section are
allowable under this section.
Sec. 1230.210 Reporting.
No reporting is required with respect to payments of reasonable
compensation made to regularly employed officers or employees of a
person.
Subpart C_Activities by Other Than Own Employees
Sec. 1230.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec.
1230.100 (a), does not apply in the case of any reasonable payment to a
person, other than an officer or employee of a person requesting or
receiving a covered Federal action, if the payment is for professional
or technical services rendered directly in the preparation, submission,
or negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirements in Sec. 1230.110 (a) and (b)
regarding filing a disclosure form by each person, if required, shall
not apply with respect to professional or technical services rendered
directly in the preparation, submission, or negotiation of any
commitment providing for the United States to insure or guarantee a
loan.
(c) For purposes of paragraph (a) of this section, ``professional
and technical services'' shall be limited to advice and analysis
directly applying any professional or technical discipline. For example,
drafting or a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered
directly in the negotiation of a contract is allowable. However,
communications with the intent to influence made by a professional (such
as a licensed lawyer) or a technical person (such as a licensed
accountant) are not allowable under this section unless they provide
advice and analysis directly applying their professional or technical
expertise and unless the advice or analysis is rendered directly and
solely in the preparation, submission or negotiation of a covered
Federal action. Thus, for example, communications with the intent to
influence made by a lawyer that do not provide legal advice or analysis
directly and solely related to the legal aspects of his or her client's
proposal, but generally advocate one proposal over another are not
allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(e) Persons other than officers or employees of a person requesting
or receiving a covered Federal action include consultants and trade
associations.
(f) Only those services expressly authorized by this section are
allowable under this section.
Subpart D_Penalties and Enforcement
Sec. 1230.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $18,936 and not more than
$189,361 for each such expenditure.
[[Page 56]]
(b) Any person who fails to file or amend the disclosure form (see
Appendix B) to be filed or amended if required herein, shall be subject
to a civil penalty of not less than $18,936 and not more than $189,361
for each such failure.
(c) A filing or amended filing on or after the date on which an
administrative action for the imposition of a civil penalty is commenced
does not prevent the imposition of such civil penalty for a failure
occurring before that date. An administrative action is commenced with
respect to a failure when an investigating official determines in
writing to commence an investigation of an allegation of such failure.
(d) In determining whether to impose a civil penalty, and the amount
of any such penalty, by reason of a violation by any person, the agency
shall consider the nature, circumstances, extent, and gravity of the
violation, the effect on the ability of such person to continue in
business, any prior violations by such person, the degree of culpability
of such person, the ability of the person to pay the penalty, and such
other matters as may be appropriate.
(e) First offenders under paragraph (a) or (b) of this section shall
be subject to a civil penalty of $18,936, absent aggravating
circumstances. Second and subsequent offenses by persons shall be
subject to an appropriate civil penalty between $18,936 and $189,361, as
determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not
prevent the United States from seeking any other remedy that may apply
to the same conduct that is the basis for the imposition of such civil
penalty.
[55 FR 6737, 6755, Feb. 26, 1990, as amended at 81 FR 40820, June 23,
2016]
Sec. 1230.405 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C.
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and
3812, insofar as these provisions are not inconsistent with the
requirements herein.
Sec. 1230.410 Enforcement.
The head of each agency shall take such actions as are necessary to
ensure that the provisions herein are vigorously implemented and
enforced in that agency.
Subpart E_Exemptions
Sec. 1230.500 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a
covered Federal action from the prohibition whenever the Secretary
determines, in writing, that such an exemption is in the national
interest. The Secretary shall transmit a copy of each such written
exemption to Congress immediately after making such a determination.
(b) The Department of Defense may issue supplemental regulations to
implement paragraph (a) of this section.
Subpart F_Agency Reports
Sec. 1230.600 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure
reports (see Appendix B) and, on May 31 and November 30 of each year,
submit to the Secretary of the Senate and the Clerk of the House of
Representatives a report containing a compilation of the information
contained in the disclosure reports received during the six-month period
ending on March 31 or September 30, respectively, of that year.
(b) The report, including the compilation, shall be available for
public inspection 30 days after receipt of the report by the Secretary
and the Clerk.
(c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
(d) Information that is classified under Executive Order 12356 or
any successor order shall be reported only to
[[Page 57]]
the Committee on Foreign Relations of the Senate and the Committee on
Foreign Affairs of the House of Representatives or the Committees on
Armed Services of the Senate and the House of Representatives (whichever
such committees have jurisdiction of matters involving such information)
and to the Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
(e) The first semi-annual compilation shall be submitted on May 31,
1990, and shall contain a compilation of the disclosure reports received
from December 23, 1989 to March 31, 1990.
(f) Major agencies, designated by the Office of Management and
Budget (OMB), are required to provide machine-readable compilations to
the Secretary of the Senate and the Clerk of the House of
Representatives no later than with the compilations due on May 31, 1991.
OMB shall provide detailed specifications in a memorandum to these
agencies.
(g) Non-major agencies are requested to provide machine-readable
compilations to the Secretary of the Senate and the Clerk of the House
of Representatives.
(h) Agencies shall keep the originals of all disclosure reports in
the official files of the agency.
Sec. 1230.605 Inspector General report.
(a) The Inspector General, or other official as specified in
paragraph (b) of this section, of each agency shall prepare and submit
to Congress each year, commencing with submission of the President's
Budget in 1991, an evaluation of the compliance of that agency with, and
the effectiveness of, the requirements herein. The evaluation may
include any recommended changes that may be necessary to strengthen or
improve the requirements.
(b) In the case of an agency that does not have an Inspector
General, the agency official comparable to an Inspector General shall
prepare and submit the annual report, or, if there is no such comparable
official, the head of the agency shall prepare and submit the annual
report.
(c) The annual report shall be submitted at the same time the agency
submits its annual budget justifications to Congress.
(d) The annual report shall include the following: All alleged
violations relating to the agency's covered Federal actions during the
year covered by the report, the actions taken by the head of the agency
in the year covered by the report with respect to those alleged
violations and alleged violations in previous years, and the amounts of
civil penalties imposed by the agency in the year covered by the report.
Sec. Appendix A to Part 1230--Certification Regarding Lobbying
Certification for Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his or her knowledge and
belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by
or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of an agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been
paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress
in connection with this Federal contract, grant, loan, or cooperative
agreement, the undersigned shall complete and submit Standard Form-LLL,
``Disclosure Form to Report Lobbying,'' in accordance with its
instructions.
(3) The undersigned shall require that the language of this
certification be included in the award documents for all subawards at
all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required certification shall be
subject to a
[[Page 58]]
civil penalty of not less than $18,936 and not more than $189,361 for
each such failure.
Statement for Loan Guarantees and Loan Insurance
The undersigned states, to the best of his or her knowledge and
belief, that:
If any funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this commitment
providing for the United States to insure or guarantee a loan, the
undersigned shall complete and submit Standard Form-LLL, ``Disclosure
Form to Report Lobbying,'' in accordance with its instructions.
Submission of this statement is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required statement shall be
subject to a civil penalty of not less than $18,936 and not more than
$189,361 for each such failure.
[55 FR 6737, 6755, Feb. 26, 1990, as amended at 81 FR 40820, June 23,
2016]
[[Page 59]]
Appendix B to Part 1230--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TR24OC02.007
[[Page 60]]
[GRAPHIC] [TIFF OMITTED] TR24OC02.008
[[Page 61]]
[GRAPHIC] [TIFF OMITTED] TR24OC02.009
[[Page 62]]
PART 1232_NONDISCRIMINATION ON BASIS OF HANDICAP IN PROGRAMS OR
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents
Subpart A_General Provisions
Sec.
1232.1 Purpose.
1232.2 Application.
1232.3 Definitions.
1232.4 General prohibitions against discrimination.
1232.5 Assurances required.
1232.6 Notice.
1232.7 Remedial action, voluntary action and self-evaluation.
1232.8 Effect of state or local law.
Subpart B_Employment and Volunteer Service Practices
1232.9 General prohibitions against employment and volunteer service
discrimination.
1232.10 Reasonable accommodation.
1232.11 Employment and volunteer selection criteria.
1232.12 Preemployment or pre-selection inquiries.
Subpart C_Accessibility
1232.13 General requirement concerning accessibility.
1232.14 Existing facilities.
1232.15 New construction.
Subpart D_Procedures
1232.16 Procedures.
Authority: 29 U.S.C. 794.
Source: 44 FR 31018, May 30, 1979, unless otherwise noted.
Subpart A_General Provisions
Sec. 1232.1 Purpose.
The purpose of this part is to effectuate section 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.
Sec. 1232.2 Application.
This part applies to each recipient of Federal financial assistance
from ACTION and to each program or activity that receives such
assistance, including, but not limited to VISTA, University Year for
ACTION (UYA), Senior Companion Program (SCP), Foster Grandparent Program
(FGP) and Retired Senior Volunteer Program (RSVP). This part does not
apply to recipients outside the United States which receive financial
assistance under the Peace Corps Act, 22 U.S.C. 2501, Pub. L. 87-293, as
amended.
[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]
Sec. 1232.3 Definitions.
As used in this part the term:
(a) The Act means the Rehabilitation Act of 1973. Pub. L. 93-112, as
amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516,
and the Rehabilitation Act Amendments of 1978, Pub. L. 95-602.
(b) Section 504 means section 504 of the Act.
(c) Director means the Director of ACTION.
(d) 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, including any successor, assignee, or
transferee of a recipient, but excluding the ultimate beneficiary of the
assistance.
(e) Applicant for assistance means one who submits an application,
request, or plan required to be approved by an ACTION official or by a
recipient as a condition to becoming a recipient.
(f) Federal financial assistance means any grant, loan, contract
(other than a procurement contract or a contract of insurance or
guaranty), or any other arrangement which provides or otherwise makes
available assistance in the form of:
(1) Funds;
(2) Services of Federal personnel;
(3) Real and personal property or any interest in or use of such
property, including:
(i) Transfers or leases of such property for less than fair market
value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property
if the Federal share of its fair market value
[[Page 63]]
is not returned to the Federal Government.
(4) A Federal agreement, arrangement or other contract which has as
one of its purposes the provision of assistance, including the provision
of volunteers under the Domestic Volunteer Service Act of 1973, 42
U.S.C. 4951, Pub. L. 93-113, as amended.
(g) 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.
(h) Handicapped person.
(1) Handicapped person means any person who has a physical or mental
impairment that substantially limits one or more major life activities,
has a record of such an impairment, or is regarded as having such an
impairment, except that as it relates to employment or volunteer service
the term ``handicapped person'' does not include any individual who is
an alcoholic or drug abuser whose current use of alcohol or drugs
prevents such individual from performing the duties of the job in
question or whose employment or volunteer service, by reason of such
current alcohol or drug abuse, would constitute a direct threat to
property or the safety of others.
(2) As used in paragraph (h)(1) of this section, the phrase:
(i) Physical or mental impairment means (A) 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; genitourinary; hemic
and lymphatic; skin; and endocrine; or (B) 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, drug addiction and alcoholism.
(ii) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(iii) 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.
(iv) Is regarded as having an impairment means (A) has a physical or
mental impairment that does not substantially limit major life
activities but is treated by a recipient as constituting such a
limitation; (B) 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 (C) has none of the impairments defined in
paragraph (h)(2)(i) of this section but is treated by a recipient as
having such an impairment.
(i) Qualified handicapped person means (1) with respect to
employment or volunteer service, a handicapped person who, with
reasonable accommodation, can perform the essential functions of the job
or assignment in question; and (2) with respect to services, a
handicapped person who meets the essential eligibility requirements for
the receipt of such services.
(j) Handicap means any condition or characteristic that renders a
person a handicapped person as defined in paragraph (h) of this section.
(k) Volunteer and ``Volunteer service'' refers to any person serving
as a full time or part-time volunteer as authorized under the Domestic
Volunteer Service Act of 1973, Pub. L. 93-113, as amended.
(l) Work station means any public or private agency, institution,
organization or other entity to which volunteers are assigned by a
recipient.
(m) Program or activity means all of the operations of any entity
described in paragraphs (m)(1) through (4) of this section, 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
[[Page 64]]
(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) Which 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 which is established by two or more of the
entities described in paragraph (m)(1), (2), or (3) of this section.
(Sec. 504, Rehabilitation Act of 1973, Pub. L. 93-112, 87 Stat. 394 (29
U.S.C. 794), sec. 111(a), Rehabilitation Act Amendments of 1974, Pub. L.
93-516, 88 Stat. 1619 (29 U.S.C. 706); Rehabilitation Act Amendments of
1978, Pub. L. 95-602, 92 Stat. 2955; Sec. 402(14), Pub. L. 93-113, 87
Stat. 398)
[44 FR 31018, May 30, 1979; 46 FR 6951, Jan. 22, 1981, as amended at 68
FR 51388, Aug. 26, 2003]
Sec. 1232.4 General prohibitions against discrimination.
(a) 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 to which this part applies.
(b)(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 handicapped 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 such 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 discriminates on the basis of handicap in providing any
aid, benefit, or service to beneficiaries of the recipient's program or
activity;
(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) A recipient may not deny a qualified handicapped person the
opportunity to participate in aid, benefits, or services that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) A recipient may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration:
(i) That have the effect of subjecting qualified handicapped persons
to discrimination on the basis of handicap,
(ii) That have the purpose or effect of defeating or substantially
impairing
[[Page 65]]
accomplishment of the objectives of the recipient's program or activity
with respect to handicapped persons, or
(iii) That perpetuate the discrimination of another recipient if
both recipients are subject to common administrative control or are
agencies of the same state.
(4) A recipient may not, in determining the site or location of a
facility, make selections:
(i) That 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 or
(ii) That 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.
(c) The exclusion of nonhandicapped persons from aid, benefits, or
services limited by federal statute or executive order to handicapped
persons or the exclusion of a specific class of handicapped persons from
aid, benefits, or services limited by federal statute or executive order
to a different class of handicapped persons is not prohibited by this
part.
(d) Recipients shall administer programs or activities in the most
integrated setting appropriate to the needs of qualified handicapped
persons.
(e) Recipients shall take appropriate steps to ensure that
communications with their applicants, employees, volunteers and
beneficiaries are available to persons with impaired vision and hearing.
(f) Recipients shall take appropriate steps to insure that no
handicapped individual is denied the benefits of, excluded from
participation in, or otherwise subjected to discrimination in any
program or activity receiving Federal financial assistance from ACTION
because of the absence of auxiliary aids for individuals with impaired
sensory, manual, or speaking skills.
[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]
Sec. 1232.5 Assurances required.
(a) An applicant for Federal financial assistance 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 this
part. An applicant may incorporate these assurances by reference in
subsequent applications to ACTION. The assurance will obligate the
recipient for the period during which Federal financial assistance is
extended.
(b) In the case of Federal financial assistance extended to provide
personal property, the assurance will obligate the recipient for the
period during which it retains ownership or possession of the property.
(c) A recipient operating a program or activity under which
volunteers are assigned to a number of work stations shall obtain an
assurance from each work station that neither volunteers nor the
beneficiaries they serve will be discriminated against on the basis of
handicap.
[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]
Sec. 1232.6 Notice.
Recipients shall take appropriate initial and continuing steps to
notify participants, beneficiaries, applicants, volunteers and
employees, including those with impaired vision or hearing, that it does
not discriminate on the basis of handicap in violation of section 504
and this part.
Sec. 1232.7 Remedial action, voluntary action and self-evaluation.
(a) Remedial action. (1) If the Director finds that a recipient has
discriminated against persons on the basis of handicap in violation of
section 504 or this part, the recipient shall take such remedial action
as the Director deems necessary to overcome the effects of the
discrimination.
(2) Where a recipient is found to have discriminated against persons
on the basis of handicap in violation of section 504 or this part and
where another recipient exercises control over the recipient that has
discriminated, the Director, where appropriate, may require either or
both recipients to take remedial action.
(3) The Director may, where necessary to overcome the effects of
discrimination in violation of section 504
[[Page 66]]
or this part, require a recipient to take remedial action:
(i) With respect to handicapped persons who are no longer
participants in the recipient's program or activity but who were
participants in the program or activity when such discrimination
occurred or
(ii) With respect to handicapped persons who would have been
participants in the program or activity had the discrimination not
occurred, or
(iii) With respect to handicapped persons presently in the program
or activity, but not receiving full benefits or equal and integrated
treatment within the program or activity.
(b) Voluntary action. Recipient may take steps, in addition to any
action that is required by this part, to overcome the effects of
conditions that resulted in limited participation in the recipient's
program or activity by qualified handicapped persons.
(c) Self-evaluation. (1) Each recipient shall, within one year of
the effective date of this part, conduct a self-evaluation of its
compliance with Section 504, with the assistance of interested persons,
including handicapped persons or organizations representing handicapped
persons. Each recipient shall with the assistance of and consultation
with interested persons, including handicapped persons, evaluate its
current policies, practices and effects thereof; modify any that do not
meet the requirements of this part; and take appropriate remedial steps
to eliminate the effects of any discrimination that resulted from
adherence to these policies and practices.
(2) A recipient that employs fifteen or more persons shall, for at
least three years following completion of the evaluation required under
paragraph (c)(1) of this section, maintain on file, make available for
public inspection, and provide to the Director upon request: (i) A list
of the interested persons consulted,
(ii) A description of areas examined and any problems identified,
and
(iii) A description of any modifications made and of any remedial
steps taken.
[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]
Sec. 1232.8 Effect of state or local law.
The obligation to comply with this part 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.
Subpart B_Employment and Volunteer Service Practices
Sec. 1232.9 General prohibitions against employment and volunteer
service discrimination.
(a) No qualified handicapped person shall, on the basis of handicap,
be subjected to discrimination in employment or volunteer service under
any program or activity that receives federal financial assistance.
(b) A recipient shall make all decisions concerning employment or
volunteer service 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 or volunteers in any way that adversely affects
their opportunities or status because of handicap.
(c) The prohibition against discrimination in employment and
volunteer service applies to the following activities:
(1) Recruitment, advertising, and the processing of applications for
employment or volunteer service;
(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 leave, or any other leave;
(6) Fringe benefits available by virtue of employment or volunteer
service, whether or not administered by the recipient;
[[Page 67]]
(7) Selection and 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 those that are social
or recreational; and
(9) Any other term, condition, or privilege of employment or
volunteer service.
(d) A recipient may not participate in a contractural or other
relationship that has the effect of subjecting qualified handicapped
applicants, volunteers or employees, to discrimination prohibited by
this subpart. The relationships referred to in this paragraph include
relationships with employment and referral agencies, with labor unions,
with organizations providing or administering fringe benefits to
employees of the recipient, and with organizations providing training
and apprenticeships.
(e) 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.
(f) Recipients operating a program or activity under which
volunteers are assigned to work in a number of work stations will assure
that a representative sample of work stations are accessible to
handicapped persons.
[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]
Sec. 1232.10 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified handicapped
applicant, employee or volunteer unless the recipient can demonstrate
that the accommodation would impose an undue hardship on the operation
of its program or activity.
(b) Reasonable accommodation may include: (1) Making facilities used
by employees or volunteers 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 pursuant to paragraph (a) of this section whether
an accommodation would impose an undue hardship on the operation of a
recipient's program or activity, factors to be considered include:
(1) The overall size of the recipient's program or activity with
respect to number of employees or volunteers, 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 or volunteer force, and
(3) The nature and cost of the accommodation needed.
[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]
Sec. 1232.11 Employment and volunteer selection criteria.
A recipient may not use employment tests or criteria that
discriminate against handicapped persons and shall ensure that
employment tests are adapted for use by persons who have handicaps that
impair sensory, manual, or speaking skills.
Sec. 1232.12 Preemployment or pre-selection inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient may not conduct a preemployment medical examination or not
make pre-employment inquiry of an applicant as to whether the applicant
is a handicapped person or as to the nature of severity of a handicap. A
recipient may, however, make preemployment inquiry into an applicant's
ability to perform job-related functions. For the purpose of this
paragraph, ``pre-employment'' as applied to applicants for volunteer
positions means prior to selection as a volunteer.
(b) When a recipient is taking remedial action to correct the
effects of past discrimination pursuant to Sec. 1232.8(a), when a
recipient is taking voluntary action to overcome the effects of
conditions that resulted in limited participation in its federally
assisted program or activity pursuant to Sec. 1232.8(b) or when a
recipient is taking affirmative action pursuant to section
[[Page 68]]
503 of the Act, the recipient may invite applicants for employment or
volunteer service 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 being
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 part.
(c) Nothing in this section shall prohibit a recipient from
conditioning an offer of employment or volunteer service on the results
of a medical examination conducted prior to the volunteer or employee's
entrance on duty. Provided, That:
(1) All entering volunteers or employees are subjected to such an
examination regardless of handicap, and
(2) The results of such an examination are used only in accordance
with the requirements of this part.
(d) Information obtained in accordance with this section as to the
medical condition or history of the applicant shall be collected and
maintained on separate forms that shall 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 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 officers investigating compliance with the Act shall
be provided relevant information upon request.
Subpart C_Accessibility
Sec. 1232.13 General requirement concerning accessibility.
No qualified handicapped person shall, because a recipient's
facilities are inaccessible to or unusable by handicapped persons, be
denied the benefits of, be excluded from participation in, or otherwise
be subjected to discrimination under any program or activity that
receives or benefits from federal financial assistance.
[44 FR 31018, May 30, 1979]
Sec. 1232.14 Existing facilities.
(a) A recipient shall operate each program or activity to which this
part applies so that when each part is viewed in its entirety it is
readily accessible and usable 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 usable by handicapped
persons.
(b) A recipient is not required to make structural changes in
existing facilities where other methods are effective in achieving
compliance with this section. Where structural changes are necessary to
comply with paragraph (a) of this section, such changes shall be made as
soon as practicable, but in no event later than three years after the
effective date of the regulation.
(c) 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 six months of the effective date of this part, a
transition plan which sets forth in detail the steps necessary to
complete the changes, and a schedule for taking those steps. The plan
shall be developed with the assistance of interested persons, including
handicapped persons or organizations representing handicapped persons. A
copy of the plan shall be made available for public inspection.
[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]
Sec. 1232.15 New construction.
(a) Design, construction, and alteration. New facilities shall be
designed and constructed to be readily accessible to
[[Page 69]]
and usable by handicapped persons. construction shall be considered new
if ground breaking takes place after the effective date of the
regulation. Alterations to existing facilities shall, to the maximum
extent feasible, be designed and constructed to be readily accessible to
and usable by handicapped persons.
(b) 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.
[44 FR 31018, May 30, 1979, as amended at 55 FR 52138, 52142, Dec. 19,
1990]
Subpart D_Procedures
Sec. 1232.16 Procedures.
The procedural provisions applicable to title VI of the Civil Rights
Act of 1964 apply to this part. These procedures are found in Sec. Sec.
1203.6 through 1203.11 of this title.
PART 1233_INTERGOVERNMENTAL REVIEW OF ACTION PROGRAMS--Table of Contents
Sec.
1233.1 What is the purpose of these regulations?
1233.2 What definitions apply to these regulations?
1233.3 What programs of the Agency are subject to these regulations?
1233.4 [Reserved]
1233.5 What is the Director's obligation with respect to federal
interagency coordination?
1233.6 What procedures apply to the selection of programs under these
regulations?
1233.7 How does the Director communicate with state and local officials
concerning the Agency's programs?
1233.8 How does the Director provide states an opportunity to comment on
proposed federal financial assistance?
1233.9 How does the Director receive and respond to comments?
1233.10 How does the Director make efforts to accommodate
intergovernmental concerns?
1233.11-1233.12 [Reserved]
1233.13 May the Director waive any provision of these regulations?
Authority: E.O. 12372, July 14, 1982 (47 FR 30959), as amended April
8, 1983 (48 FR 15887); sec. 401 of the Intergovernmental Cooperation Act
of 1968, as amended (31 U.S.C. 6505).
Source: 48 FR 29284, June 24, 1983, unless otherwise noted.
Sec. 1233.1 What is the purpose of these regulations?
(a) The regulations in this part implement Executive Order 12372,
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982,
and amended on April 8, 1983. These regulations also implement
applicable provisions of section 401 of the Intergovernmental
Cooperation Act of 1968.
(b) These regulations are intended to foster an intergovernmental
partnership and a strengthened Federalism by relying on state processes
and on state, areawide, regional and local coordination for review of
proposed federal financial assistance.
(c) These regulations are intended to aid the internal management of
the Agency, and are not intended to create any right or benefit
enforceable at law by a party against the Agency or its officers.
Sec. 1233.2 What definitions apply to these regulations?
Agency means ACTION, the National Volunteer Agency.
Order means Executive Order 12372, issued July 14, 1982, and amended
April
[[Page 70]]
8, 1983 and titled ``Intergovernmental Review of Federal Programs.''
Director means the Director of ACTION, or an official or employee of
the Agency acting for the Director under a delegation of authority.
State means any of the 50 states, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust
Territory of the Pacific Islands.
Sec. 1233.3 What programs of the Agency are subject to these
regulations?
The Director publishes in the Federal Register a list of the
Agency's programs that are subject to these regulations.
Sec. 1233.4 [Reserved]
Sec. 1233.5 What is the Director's obligation with respect to federal
interagency coordination?
The Director, to the extent practicable, consults with and seeks
advice from all other substantially affected federal departments and
agencies in an effort to assure full coordination between such agencies
and ACTION regarding programs covered under these regulations.
Sec. 1233.6 What procedures apply to the selection of programs under
these regulations?
(a) A state may select any ACTION program published in the Federal
Register in accordance with Sec. 1233.3 of this part for
intergovernmental review under these regulations. Each state, before
selecting programs and activities, shall consult with local elected
officials.
(b) Each state that adopts a process shall notify the Director of
the Agency's programs selected for that process.
(c) A state may notify the Director of changes in its selections at
any time. For each change, the state shall submit to the Director an
assurance that the state has consulted with local elected officials
regarding the change. The Agency may establish deadlines by which states
are required to inform the Director of changes in their program
selections.
(d) The Director uses a state's process as soon as feasible,
depending on individual programs, after the Director is notified of its
selections.
Sec. 1233.7 How does the Director communicate with state and local
officials concerning the Agency's programs?
(a) The Director provides opportunities for consultation by elected
officials of those state and local governments that would provide the
nonfederal funds for, or that would be directly affected by, proposed
federal financial assistance from the Agency. For those programs covered
by a state process under Sec. 1233.6, the Director, to the extent
permitted by law:
(1) Uses the official state process to determine views of state and
local elected officials; and,
(2) Communicates with state and local elected officials, through the
official state process, as early in a program planning cycle as is
reasonably feasible to explain specific plans and actions.
(b) The Director provides notice to directly affected state,
areawide, regional, and local entities in a state of proposed federal
financial assistance if:
(1) The state has not adopted a process under the Order; or
(2) The assistance involves a program not selected for the state
process.
This notice may be made by publication in the Federal Register, or other
appropriate means, which the Agency in its discretion deems appropriate.
Sec. 1233.8 How does the Director provide states an opportunity to
comment on proposed federal financial assistance?
(a) Except in unusual circumstances, the Director gives state
processes or directly affected state, areawide, regional and local
officials and entities:
(1) At least 30 days from the date established by the Director to
comment on proposed federal financial assistance in the form of
noncompeting continuation awards; and
(2) At least 60 days from the date established by the Director to
comment on proposed federal financial assistance other than noncompeting
continuation awards.
[[Page 71]]
(b) This section also applies to comments in cases in which the
review, coordination, and communication with the Agency have been
delegated.
Sec. 1233.9 How does the Director receive and respond to comments?
(a) The Director follows the procedures in Sec. 1233.10 if:
(1) A state office or official is designated to act as a single
point of contact between a state process and all federal agencies, and
(2) That office or official transmits a state process recommendation
for a program selected under Sec. 1233.6.
(b)(1) The single point of contact is not obligated to transmit
comments from state, areawide, regional or local officials and entities
where there is no state process recommendation.
(2) If a state process recommendation is transmitted by a single
point of contact, all comments from state, areawide, regional, and local
officials and entities that differ from it must also be transmitted.
(c) If a state has not established a process, or is unable to submit
a state process recommendation, state, areawide, regional and local
officials and entities may submit comments either to the applicant or to
the Agency, or both.
(d) If a program is not selected for a state process, state,
areawide, regional and local officials and entities may submit comments
either to the applicant or to the Agency, or both. In addition, if a
state process recommendation for a nonselected program is transmitted to
the Agency by the single point of contact, the Director follows the
prodecures of Sec. 1233.10 of this part.
(e) The Director considers comments which do not constitute a state
process recommendation submitted under these regulations and for which
the Director is not required to apply the procedures of Sec. 1233.10 of
this part, when such comments are provided by a single point of contact,
by the applicant, or directly to the Agency by a commenting party.
Sec. 1233.10 How does the Director make efforts to accommodate
intergovernmental concerns?
(a) If a state process provides a state process recommendation to
the Agency through its single point of contact, the Director either:
(1) Accepts the recommendation;
(2) Reaches a mutually agreeable solution with the state process; or
(3) Provides the single point of contact with a written explanation
of the Agency's decision, in such form as the Director in his or her
discretion deems appropriate. The Director may also supplement the
written explanation by providing the explanation to the single point of
contact by telephone, other telecommunication, or other means.
(b) In any explanation under paragraph (a)(3) of this section, the
Director informs the single point of contact that:
(1) The Agency will not implement its decision for at least ten days
after the single point of contact receives the explanation; or
(2) The Director has reviewed the decision and determined that,
because of unusual circumstances, the waiting period of at least ten
days is not feasible.
(c) For purpose of computing the waiting period under paragraph
(b)(1) of this section, a single point of contact is presumed to have
received written notification 5 days after the date of mailing of such
notification.
Sec. Sec. 1233.11-1233.12 [Reserved]
Sec. 1233.13 May the Director waive any provision of these regulations?
In an emergency, the Director may waive any provision of these
regulations.
PART 1235_LOCALLY GENERATED CONTRIBUTIONS IN OLDER AMERICAN VOLUNTEER
PROGRAMS--Table of Contents
Sec.
1235.1 Definitions.
1235.2 Implementation guidance.
1235.3 Statement of policy.
Authority: 42 U.S.C. 5024; 42 U.S.C. 5060.
Source: 56 FR 4732, Feb. 6, 1991, unless otherwise noted.
[[Page 72]]
Sec. 1235.1 Definitions.
As used in this part and in section 224 of the Domestic Volunteer
Service Act of 1973, as amended, the following definitions shall apply:
(a) Director means the Director of ACTION.
(b) Locally Generated Contributions means all contributions
generated by the grantee in support of the grant, including non-ACTION
Federal, State, local government and privately raised contributions.
(c) Amount Required by the Director means the proportion of the non-
Federal contribution (including in-kind contributions) for a grant or
contract made under the Domestic Volunteer Service Act of 1973, as
amended, required by the Director in order to receive ACTION funds. This
proportion is generally 10% for the Foster Grandparent Program/Senior
Companion Program (FGP/SCP) and generally 10%, 20% and 30% for the
Retired Senior Volunteer Program (RSVP) in the first, second, and
subsequent years respectively. The ``amount required by the Director''
is also called the ``local match.''
(d) In Excess of the Amount Required by the Director means of the
total locally generated contributions, the amount over and above the
percentage match (generally 10% for FGP/SCP and 10%, 20% and 30% for
RSVP in the first, second, and subsequent years respectively) required
by the Director of ACTION to be raised from non-ACTION sources to
support the grant.
(e) Inconsistent with the Provisions of This Act means expenditures
not in support of ACTION programs, as defined by the Domestic Volunteer
Service Act of 1973, as amended. For example:
(1) Inconsistency with the age threshold for volunteers for all
Older American Volunteer Programs (OAVP);
(2) Inconsistency with the low income test for the FGP and SCP
programs;
(3) Variations from the approved stipend levels for the FGP and SCP
programs;
(4) Inconsistency with the prohibition against political activity
under all the OAVP programs; and/or
(5) Unreasonable cost for a low-cost volunteer program.
Sec. 1235.2 Implementation guidance.
ACTION's implementation of section 224 of the DVSA is based on
fundamental principles regarding the Congressional intent of the Section
as well as the Executive Branch's policy on Federal financial assistance
to grantees. These principles include:
(a) That ACTION may not restrict grantees' use of excess
contributions as long as those expenditures are ``not inconsistent''
with the Domestic Volunteer Service Act of 1973, as amended;
(b) That grantees are to fully account for and document expenditures
of non-Federal contributions, regardless of whether they are used to
meet ACTION's local match requirement or are in excess of the
requirement; and
[56 FR 4732, Feb. 6, 1991, as amended at 79 FR 76077, Dec. 19, 2014]
Sec. 1235.3 Statement of policy.
(a) Expenditures of locally generated non-Federal contributions
required by the Director as matching funds must meet the requirements
specified in ACTION's Grant Management and Program Operations Handbook,
ACTION Order 2650.2, as amended, and the Domestic Volunteer Service Act
of 1973, as amended. Copies of ACTION's Grants Management and Program
Operations Handbook, ACTION Order 2650.2, as amended, are available at
ACTION, 1100 Vermont Avenue, NW., Room 9200, Washington, DC 20525.
(b) All expenditures by the grantee of Federal and non-Federal funds
(including expenditures from excess locally generated contributions) in
support of the grant are subject to ACTION authorized audits.
(c) ACTION will not restrict the manner in which locally generated
contributions in excess of the required match are expended if these
expenditures are not inconsistent with the Domestic Volunteer Service
Act of 1973, as amended.
PARTS 1236 1299 [RESERVED]
[[Page 73]]
CHAPTER XIII--ADMINISTRATION FOR CHILDREN AND FAMILIES, DEPARTMENT OF
HEALTH AND HUMAN SERVICES
--------------------------------------------------------------------
SUBCHAPTER A--OFFICE OF HUMAN DEVELOPMENT SERVICES, GENERAL PROVISIONS
[RESERVED]
SUBCHAPTER B--THE ADMINISTRATION FOR CHILDREN AND FAMILIES, HEAD START
PROGRAM (REV. EFF. 11-7-16)
Part Page
1300 [Reserved]
1301 Head Start grants administration............ 75
1302 Policies and procedures for selection,
initial funding and refunding of Head
Start grantees, and for selection of
replacement grantees.................... 80
1303 Appeal procedures for Head Start grantees
and current or prospective delegate
agencies................................ 86
1304 Program performance standards for the
operation of Head Start programs by
grantee and delegate agencies........... 101
1305 Eligibility, recruitment, selection,
enrollment and attendance in Head Start. 128
1306 Head Start staffing requirements and program
options................................. 137
1307 Policies and procedures for designation
renewal of Head Start and Early Head
Start grantees.......................... 146
1308 Head Start program performance standards on
services for children with disabilities. 151
1309 Head Start facilities purchase, major
renovation and construction............. 179
1310 Head Start transportation................... 191
1311 Head Start Fellows Program.................. 198
SUBCHAPTER C--THE ADMINISTRATION FOR COMMUNITY LIVING
1321 Grants to State and community programs on
aging................................... 258
1322 Grants to Indian tribes for support and
nutrition services...................... 273
[[Page 74]]
1323 Grants for supportive and nutritional
services to older Hawaiian Natives...... 277
1324 Allotments for vulnerable elder rights
protection activities................... 281
1325 Requirements applicable to the developmental
disabilities program.................... 298
1326 Formula grant programs...................... 304
1327 Developmental disabilities projects of
national significance................... 327
1328 The national network of university centers
for excellence in developmental
disabilities, education, research, and
service................................. 328
1330 National Institute for Disability,
Independent Living, and Rehabilitation
Research................................ 332
1331 State health insurance assistance program... 342
SUBCHAPTER D--THE ADMINISTRATION FOR NATIVE AMERICANS, NATIVE AMERICAN
PROGRAMS
1336 Native American programs.................... 344
SUBCHAPTER E [RESERVED]
SUBCHAPTER F--THE ADMINISTRATION FOR CHILDREN, YOUTH AND FAMILIES,
FAMILY AND YOUTH SERVICES BUREAU
1351 Runaway and Homeless Youth Program.......... 358
SUBCHAPTER G--THE ADMINISTRATION ON CHILDREN, YOUTH AND FAMILIES, FOSTER
CARE MAINTENANCE PAYMENTS, ADOPTION ASSISTANCE, AND CHILD AND FAMILY
SERVICES
1355 General..................................... 363
1356 Requirements applicable to Title IV-E....... 408
1357 Requirements applicable to Title IV-B....... 442
SUBCHAPTER H--FAMILY VIOLENCE PREVENTION AND SERVICES PROGRAMS
1370 Family violence prevention and services
programs................................ 457
SUBCHAPTER I--THE ADMINISTRATION ON INTELLECTUAL AND DEVELOPMENTAL
DISABILITIES, DEVELOPMENTAL DISABILITIES PROGRAM
1385-1399 [Reserved]
SUBCHAPTERS J-K [RESERVED]
[[Page 75]]
SUBCHAPTER A_OFFICE OF HUMAN DEVELOPMENT SERVICES, GENERAL PROVISIONS
[RESERVED]
SUBCHAPTER B_THE ADMINISTRATION FOR CHILDREN AND FAMILIES, HEAD START
PROGRAM (Rev. effective 11-7-16)
PART 1300 [RESERVED]
PART 1301_HEAD START GRANTS ADMINISTRATION--Table of Contents
Subpart A_General
Sec.
1301.1 Purpose and scope.
1301.2 Definitions.
Subpart B_General Requirements
1301.10 General.
1301.11 Insurance and bonding.
1301.12 Annual audit of Head Start programs.
1301.13 Accounting system certification.
Subpart C_Federal Financial Assistance
1301.20 Matching requirements.
1301.21 Criteria for increase in Federal financial assistance.
Subpart D_Personnel and General Administration
1301.30 General requirements.
1301.31 Personnel policies.
1301.32 Limitations on costs of development and administration of a Head
Start program.
1301.33 Delegation of program operations.
1301.34 Grantee appeals.
Authority: 42 U.S.C. 9801 et seq.
Source: 44 FR 24061, Apr. 24, 1979, unless otherwise noted.
Subpart A_General
Sec. 1301.1 Purpose and scope.
This part establishes regulations applicable to program
administration and grants management for all grants under the Act,
including grants for technical assistance and training and grants for
research, demonstration, and pilot projects.
Sec. 1301.2 Definitions.
For the purposes of this part, unless the context requires
otherwise:
Act means title V of the Economic Opportunity Act of 1964, as
amended.
Budget period means the interval of time, into which a multi-year
period of assistance (project period) is divided for budgetary and
funding purposes.
Community means a city, county, a multi-city or multi-county unit
within a state, an Indian reservation, or any neighborhood or other
geographic area (irrespective of boundaries or political subdivisions)
which provides a suitable organizational base and possesses the
commonality of interest needed to operate a Head Start program.
Delegate agency means a public or private non-profit organization or
agency to which a grantee has delegated all or part of its
responsibility for operating a Head Start program.
Development and administrative costs mean costs incurred in
accordance with an approved Head Start budget which do not directly
relate to the provision of program component services, including
services to children with disabilities, as set forth and described in
the Head Start program performance standards (45 CFR part 1304).
Dual benefit costs mean costs incurred in accordance with an
approved Head Start budget which directly relate to both development and
administrative functions and to the program component services,
including services to children with disabilities, as set forth and
described in the Head Start program performance standards (45 CFR part
1304).
Head Start Agency or ``grantee'' means a local public or private
non-profit agency designated to operate a Head Start program by the
responsible HHS official, in accordance with part 1302 of this chapter.
Head Start program means a program, funded under the Act and carried
out by a Head Start agency or a delegate agency, that provides ongoing
comprehensive child development services.
Independent auditor means an individual accountant or an accounting
[[Page 76]]
firm, public or private agency, association, corporation, or
partnership, that is sufficiently independent of the agency being
audited to render objective and unbiased opinions, conclusions, and
judgments.
Indirect costs mean those costs of a Head Start agency, as approved
by the cognizant agency, the agency which has authority to set the
grantee's indirect cost rate, which are not readily identifiable with a
particular project or program but nevertheless are necessary to the
general operation of the agency and the conduct of its activities.
Major disaster means any natural disaster or catastrophe which is of
such severity and magnitude as to directly affect the capability of the
Head Start agency of agencies providing Head Start programs to the
damaged community to continue the programs without an increase in the
Federal share above 80 percent.
Program costs mean costs incurred in accordance with an approved
Head Start budget which directly relate to the provision of program
component services, including services to children with disabilities, as
set forth and described in the Head Start Program Performance Standards
(45 CFR part 1304).
Responsible HHS official means the official of the Department of
Health and Human Services who has authority to make grants under the
Act.
Total approved costs mean the sum of all costs of the Head Start
program approved for a given budget period by the Administration on
Children, Youth and Families, as indicated on the Financial Assistance
Award. Total approved costs consist of the Federal share plus any
approved non-Federal share, including non-Federal share above the
statutory minimum.
[44 FR 24061, Apr. 24, 1979, as amended at 57 FR 41884, Sept. 14, 1992]
Subpart B_General Requirements
Sec. 1301.10 General.
(a) Except as specified in paragraph (b) of this section, the
following HHS regulations shall apply to all grants made under the Act:
45 CFR part 16 Department grant appeals process (except as provided in
Sec. 1301.34)
45 CFR part 46 Protection of Human Subjects
45 CFR part 75 Uniform Administrative Requirements, Cost Principles and
Audit Requirements for HHS Awards
45 CFR part 80 Nondiscrimination under programs receiving Federal
assistance through the Department of Health and Human Services--
Effectuation of title VI of the Civil Rights Act of 1964
45 CFR part 81 Practice and procedure for hearings under part 80
45 CFR part 84 Nondiscrimination on the basis of handicap in Federally
assisted programs.
(b) 45 CFR part 75 is superseded as follows:
(1) Section 1301.11 of this subpart supersedes Sec. 75.334 of part
75 with respect to insurance and bonding of private, non-profit Head
Start agencies; and
(2) Section 1301.12 of this subpart supersedes subpart F of part 75
with respect to audit requirements for all Head Start agencies.
[44 FR 24061, Apr. 24, 1979, as amended at 81 FR 3021, Jan. 20, 2016]
Sec. 1301.11 Insurance and bonding.
(a) Private nonprofit Head Start agencies and their delegate
agencies shall carry reasonable amounts of student accident insurance,
liability insurance for accidents of their premises, and transportation
liability insurance.
(b) Private nonprofit Head Start and delegate agencies shall make
arrangements for bonding officials and employees authorized to disburse
program funds.
Sec. 1301.12 Annual audit of Head Start programs.
(a) An audit of the Head Start program covering the prior budget
period of each Head Start agency and its delegate agencies, if any,
shall be made by an independent auditor to determine:
(1) Whether the agency's financial statements are accurate;
(2) Whether the agency is complying with the terms and conditions of
the grant; and
(3) Whether appropriate financial and administrative procedures and
controls have been installed and are operating effectively. Head Start
agencies shall either include delegate agency audits as a part of their
own audits or provide
[[Page 77]]
for separate independent audits of their delegate agencies.
(b) Upon a written request showing necessity, the responsible HHS
official may approve a period other than the prior budget period to be
covered by the annual audit.
(c) Unless otherwise approved by the responsible HHS official, the
report of the audit shall be submitted to the responsible HHS official,
in the manner and form prescribed by him or her, within 4 months after
the prior budget period.
Sec. 1301.13 Accounting system certification.
(a) Upon request by the responsible HHS official, each Head Start
agency or its delegate agency shall submit an accounting system
certification, prepared by an independent auditor, stating that the
accounting system or systems established by the Head Start agency, or
its delegate, has appropriate internal controls for safeguarding assets,
checking the accuracy and reliability of accounting data, and promoting
operating efficiency.
(b) A Head Start agency shall not delegate any of its Head Start
program responsibilities to a delegate agency prior to receiving a
certification that the delegate agency's accounting system meets the
requirements specified in paragraph (a) of this section.
Subpart C_Federal Financial Assistance
Sec. 1301.20 Matching requirements.
(a) Federal financial assistance granted under the act for a Head
Start program shall not exceed 80 percent of the total costs of the
program, unless:
(1) An amount in excess of that percentage is approved under section
1301.21; or
(2) The Head Start agency received Federal financial assistance in
excess of 80 percent for any budget period falling within fiscal year
1973 or fiscal year 1974. Under the circumstances described in clause
(3) Of the preceding sentence, the agency is entitled to receive the
same percentage of Federal financial assistance that it received during
such budget periods.
(b) The non-Federal share will not be required to exceed 20 percent
of the total costs of the program.
(c) Federal financial assistance awarded to Head Start grantees for
training and technical assistance activities shall be included in the
Federal share in determining the total approved costs of the program.
Such financial assistance is, therefore, subject to the 20 percent non-
Federal matching requirement of this subpart.
[44 FR 24061, Apr. 24, 1979, as amended at 57 FR 41884, Sept. 14, 1992]
Sec. 1301.21 Criteria for increase in Federal financial assistance.
The responsible HHS official, on the basis of a written application
and any supporting evidence he or she may require, will approve
financial assistance in excess of 80 percent if he or she concludes that
the Head Start agency has made a reasonable effort to meet its required
non-Federal share but is unable to do so; and the Head Start agency is
located in a county:
(a) That has a personal per capita income of less that $3,000 per
year; or
(b) That has been involved in a major disaster.
Subpart D_Personnel and General Administration
Sec. 1301.30 General requirements.
Head Start agencies and delegate agencies shall conduct the Head
Start program in an effective and efficient manner, free of political
bias or family favoritism. Each agency shall also provide reasonable
public access to information and to the agency's records pertaining to
the Head Start program.
Sec. 1301.31 Personnel policies.
(a) Written policies. Grantee and delegate agencies must establish
and implement written personnel policies for staff, that are approved by
the Policy Council or Policy Committee and that are made available to
all grantee and delegate agency staff. At a minimum, such policies must
include:
(1) Descriptions of each staff position, addressing, as appropriate,
roles
[[Page 78]]
and responsibilities, relevant qualifications, salary range, and
employee benefits (see 45 CFR 1304.52(c) and (d));
(2) A description of the procedures for recruitment, selection and
termination (see paragraph (b) of this Section, Staff recruitment and
selection procedures);
(3) Standards of conduct (see 45 CFR 1304.52(h));
(4) Descriptions of methods for providing staff and volunteers with
opportunities for training, development, and advancement (see 45 CFR
1304.52(k), Training and development);
(5) A description of the procedures for conducting staff performance
appraisals (see 45 CFR 1304.52(i), Staff performance appraisals);
(6) Assurances that the program is an equal opportunity employer and
does not discriminate on the basis of gender, race, ethnicity, religion
or disability; and
(7) A description of employee-management relation procedures,
including those for managing employee grievances and adverse actions.
(b) Staff recruitment and selection procedures. (1) Before an
employee is hired, grantee or delegate agencies must conduct:
(i) An interview with the applicant;
(ii) A verification of personal and employment references; and
(iii) A State or national criminal record check, as required by
State law or administrative requirement. If it is not feasible to obtain
a criminal record check prior to hiring, an employee must not be
considered permanent until such a check has been completed.
(2) Grantee and delegate agencies must require that all current and
prospective employees sign a declaration prior to employment that lists:
(i) All pending and prior criminal arrests and charges related to
child sexual abuse and their disposition;
(ii) Convictions related to other forms of child abuse and neglect;
and
(iii) All convictions of violent felonies.
(3) Grantee and delegate agencies must review each application for
employment individually in order to assess the relevancy of an arrest, a
pending criminal charge, or a conviction.
(c) Declaration exclusions. The declaration required by paragraph
(b)(2) of this section may exclude:
(1) Traffic fines of $200.00 or less;
(2) Any offense, other than any offense related to child abuse and/
or child sexual abuse or violent felonies, committed before the
prospective employee's 18th birthday which was finally adjudicated in a
juvenile court or under a youth offender law;
(3) Any conviction the record of which has been expunged under
Federal or State law; and
(4) Any conviction set aside under the Federal Youth Corrections Act
or similar State authority.
(d) Probationary period. The policies governing the recruitment and
selection of staff must provide for a probationary period for all new
employees that allows time to monitor employee performance and to
examine and act on the results of the criminal record checks discussed
in paragraph (b) (1) of this Section.
(e) Reporting child abuse or sexual abuse. Grantee and delegate
agencies must develop a plan for responding to suspected or known child
abuse or sexual abuse as defined in 45 CFR 1340.2(d) whether it occurs
inside or outside of the program.
(The information collection requirements are approved by the Office of
Management and Budget (OMB) under OMB Control Number 0970-0148 for
paragraph (b).)
[61 FR 57225, Nov. 5, 1996, as amended at 63 FR 2313, Jan. 15, 1998]
Sec. 1301.32 Limitations on costs of development and administration
of a Head Start program.
(a) General provisions. (1) Allowable costs for developing and
administering a Head Start program may not exceed 15 percent of the
total approved costs of the program, unless the responsible HHS official
grants a waiver approving a higher percentage for a specific period of
time not to exceed twelve months.
(2) The limit of 15 percent for development and administrative costs
is a maximum. In cases where the costs for development and
administration are at or below 15 percent, but are judged by
[[Page 79]]
the responsible HHS official to be excessive, the grantee must eliminate
excessive development and administrative costs.
(b) Development and administrative costs. (1) Costs classified as
development and administrative costs are those costs related to the
overall management of the program. These costs can be in both the
personnel and non-personnel categories.
(2) Grantees must charge the costs of organization-wide management
functions as development and administrative costs. These functions
include planning, coordination and direction; budgeting, accounting, and
auditing; and management of purchasing, property, payroll and personnel.
(3) Development and administrative costs include, but are not
limited to, the salaries of the executive director, personnel officer,
fiscal officer/bookkeeper, purchasing officer, payroll/insurance/
property clerk, janitor for administrative office space, and costs
associated with volunteers carrying out administrative functions.
(4) Other development and administrative costs include expenses
related to administrative staff functions such as the costs allocated to
fringe benefits, travel, per diem, transportation and training.
(5) Development and administrative costs include expenses related to
bookkeeping and payroll services, audits, and bonding; and, to the
extent they support development and administrative functions and
activities, the costs of insurance, supplies, copy machines, postage,
and utilities, and occupying, operating and maintaining space.
(c) Program costs. Program costs include, but are not limited to:
(1) Personnel and non-personnel costs directly related to the
provision of program component services and component training and
transportation for staff, parents and volunteers;
(2) Costs of functions directly associated with the delivery of
program component services through the direction, coordination or
implementation of a specific component;
(3) Costs of the salaries of program component coordinators and
component staff, janitorial and transportation staff involved in program
component efforts, and the costs associated with parent involvement and
component volunteer services; and
(4) Expenses related to program staff functions, such as the
allocable costs of fringe benefits, travel, per diem and transportation,
training, food, center/classroom supplies and equipment, parent
activities funds, insurance, and the occupation, operation and
maintenance of program component space, including utilities.
(d) Dual benefit costs. (1) Some costs benefit both the program
components as well as development and administrative functions within
the Head Start program. In such cases, grantees must identify and
allocate appropriately the portion of the costs that are for development
and administration.
(2) Dual benefit costs include, but are not limited to, salaries,
benefits and other costs (such as travel, per diem, and training costs)
of staff who perform both program and development and administrative
functions. Grantees must determine and allocate appropriately the part
of these costs dedicated to development and administration.
(3) Space costs, and costs related to space, such as utilities, are
frequently dual benefit costs. The grantee must determine and allocate
appropriately the amount or percentage of space dedicated to development
and administration.
(e) Relationship between development and administrative costs and
indirect costs. (1) Grantees must categorize costs in a Head Start
program as development and administrative or program costs. These
categorizations are separate from the decision to charge such costs
directly or indirectly.
(2) Grantees must charge all costs, whether program or development
and administrative, either directly to the project or as part of an
indirect cost pool.
(f) Requirements for compliance. (1) Head Start grantees must
calculate the percentage of their total approved costs allocated to
development and administration as a part of their budget submission for
initial funding, refunding or for a request for supplemental assistance
in connection with a Head Start program. These costs may be a
[[Page 80]]
part of the direct or the indirect cost pool.
(2) The Head Start grant applicant shall delineate all development
and administrative costs in its application.
(3) Indirect costs which are categorized as program costs must be
fully explained in the application.
(g) Waiver. (1) The responsible HHS official may grant a waiver of
the 15 percent limitation on development and administrative costs and
approve a higher percentage for a specific period of time not to exceed
twelve months. The conditions under which a waiver will be considered
are listed below and encompass those situations under which development
and administrative costs are being incurred, but the provision of actual
services has not begun or has been suspended. A waiver may be granted
when:
(i) A new Head Start grantee or delegate agency is being established
or services are being expanded by an existing Head Start grantee or
delegate agency, and the delivery of component services to children and
families is delayed until all program development and planning is well
underway or completed; or
(ii) Component services are disrupted in an existing Head Start
program due to circumstances not under the control of the grantee.
(2) A Head Start grantee that estimates that the cost of development
and administration will exceed 15 percent of total approved costs must
submit a request for a waiver that explains the reasons for exceeding
the limitation. This must be done as soon as the grantee determines that
it cannot comply with the 15 percent limit, regardless of where the
grantee is within the grant funding cycle.
(3) The request for the waiver must include the period of time for
which the waiver is requested. It must also describe the action the
grantee will take to reduce its development and administrative costs so
that the grantee will be able to assure that these costs will not exceed
15 percent of the total approved costs of the program after the
completion of the waiver period.
(4) If granted, the waiver and the period of time for which it will
be granted will be indicated on the Financial Assistance Award.
(5) If a waiver requested as a part of a grant application for
funding or refunding is not approved, no Financial Assistance Award will
be awarded to the Head Start program until the grantee resubmits a
revised budget that complies with the 15 percent limitation.
(Information collection requirements contained in paragraphs (f) (2) and
(3) of this section were approved on January 26, 1993, by the Office of
Management and Budget under Control Number 0980-1043).
[57 FR 41885, Sept. 14, 1992, as amended at 58 FR 26918, May 6, 1993]
Sec. 1301.33 Delegation of program operations.
Federal financial assistance is not available for program operations
where such operations have been delegated to a delegate agency by a Head
Start agency unless the delegation of program operations is made by a
written agreement and has been approved by the responsible HHS official
before the delegation is made.
Sec. 1301.34 Grantee appeals.
An agency receiving a grant under the Act for technical assistance
and training, or for a research, demonstration, or pilot project may
appeal adverse decisions in accordance with part 16 of this title. Head
Start agencies are also subject to the appeal procedures in part 16
except appeals by those agencies for suspension, termination and denial
of refunding are subject to part 1303 of this title.
PART 1302_POLICIES AND PROCEDURES FOR SELECTION, INITIAL FUNDING,
AND REFUNDING OF HEAD START GRANTEES, AND FOR SELECTION OF REPLACEMENT
GRANTEES--Table of Contents
Subpart A_General
Sec.
1302.1 Purpose and scope.
1302.2 Definitions.
1302.3 Consultation with public officials and consumers.
1302.4 Transfer of unexpended balances.
1302.5 Notice for show cause and hearing.
[[Page 81]]
Subpart B_Basis for Selection of Grantees
1302.10 Selection among applicants.
1302.11 Selection among applicants to replace grantee.
Subpart C_Change in Grantee Requiring Amendment of Approved Application
or Replacement of Head Start Program
1302.20 Grantee to show both legal status and financial viability.
1302.21 Grantee shows legal status but not financial viability.
1302.22 Suspension or termination of grantee which shows financial
viability but not legal status.
1302.23 Suspension or termination of grantee which shows legal status
but not financial viability.
1302.24 Denial of refunding of grantee.
1302.25 Control of funds of grantee scheduled for change.
Subpart D_Replacement of Indian Tribal Grantees
1302.30 Procedure for identification of alternative agency.
1302.31 Requirements of alternative agency.
1302.32 Alternative agency--prohibition.
Authority: 42 U.S.C. 9801 et seq.
Source: 44 FR 24062, Apr. 24, 1979, unless otherwise noted.
Subpart A_General
Sec. 1302.1 Purpose and scope.
The purpose of this part is to set forth policies and procedures for
the selection, initial funding and refunding of Head Start grantees and
for the selection of replacement grantees in the event of the voluntary
or involuntary termination, or denial of refunding, of Head Start
programs. It particularly provides for consideration of the need for
selection of a replacement grantee where the continuing eligibility
(legal status) and fiscal capability (financial viability) of a grantee
to operate a Head Start program is cast in doubt by the cessation of
funding under section 519 of the Act or by the occurrence of some other
major change. It is intended that Head Start programs be administered
effectively and responsibly; that applicants to administer programs
receive fair and equitable consideration; and that the legal rights of
current Head Start grantees be fully protected.
Sec. 1302.2 Definitions.
As used in this part--
Act means Title V of The Economic Opportunity Act of 1964, as
amended.
Approvable application means an application for a Head Start
program, either as an initial application or as an application to amend
an approved application governing an on-going Head Start program, which,
in addition to showing that the applicant has legal status and financial
viability, provides for comprehensive services for children and families
and for effective and responsible administration which are in conformity
with the Act and applicable regulations, the Head Start Manual and Head
Start policies.
Community action agency means a public or private nonprofit agency
or organization designated as a community action agency by the Director
of the Community Services Administration pursuant to section 210(a) or
section 210(d) of the Act.
Community action program means a program operated by a community
action agency.
Financial viability means the capability of an applicant or the
continuing capability of a grantee to furnish the non-Federal share of
the cost of operating an approvable or approved Head Start program.
Head Start grantee or grantee means a public or private nonprofit
agency or organization whose application to operate a Head Start program
pursuant to section 514 of the Act has been approved by the responsible
HHS official.
Indian tribe means any tribe, band, nation, pueblo, or other
organized group or community of Indians, including any Native village
described in section 3(c) of the Alaska Native Claims Settlement Act (43
U.S.C. 1602 (c)) or established pursuant to such Act (43 U.S.C. 1601 et
seq.) that is recognized as eligible for special programs and services
provided by the United States to Indians because of their status as
Indians.
Legal status means the existence of an applicant or grantee as a
public agency or organization under the law of the State in which it is
located, or existence as a private nonprofit agency or organization as a
legal entity recognized under the law of the State in
[[Page 82]]
which it is located. Existence as a private non-profit agency or
organization may be established under applicable State or Federal law.
Responsible HHS official means the official of the Department of
Health and Human Services who has authority to make grants under the
Act.
[44 FR 24062, Apr. 24, 1979, as amended at 63 FR 34329, June 24, 1998]
Sec. 1302.3 Consultation with public officials and consumers.
Responsible HHS officials will consult with Governors, or their
representatives, appropriate local general purpose government officials,
and Head Start Policy Council and other appropriate representatives of
communities to be served on the proposed replacement of Head Start
grantees.
Sec. 1302.4 Transfer of unexpended balances.
When replacing a grantee, unexpended balances of funds in the
possession of such grantee in the fiscal year following the fiscal year
for which the funds were appropriated may be transferred to the
replacement grantee if the approved application of the replacement
grantee provides for the continuation of the Head Start services without
significant change to the same enrollees and their parents and
undertakes to offer employment to the staff of the terminating grantee.
A letter of concurrence in the change should be obtained from the
terminating grantee whenever possible.
Sec. 1302.5 Notice for show cause and hearing.
(a) Except in emergency situations, the responsible HHS official
will not suspend financial assistance under the Act unless the grantee
has been given an opportunity, in accordance with part 1303, subpart D,
of this chapter, to show cause why such action should not be taken.
(b) The responsible HHS official will not terminate a grant, suspend
a grant for longer than 30 days, or deny refunding to a grantee, unless
the grantee has been given an opportunity for a hearing in accordance
with part 1303 of this chapter.
Subpart B_Bases for Selection of Grantees
Sec. 1302.10 Selection among applicants.
(a) The basis for selection of applicants proposing to operate a
Head Start program will be the extent to which the applicants
demonstrate in their application the most effective Head Start program.
(b) In addition to the applicable criteria at section 641(d) of the
Head Start Act, the criteria for selection will include:
(1) The cost effectiveness of the proposed program;
(2) The qualifications and experience of the applicant and the
applicant's staff in planning, organizing and providing comprehensive
child development services at the community level, including the
administrative and fiscal capability of the applicant to administer all
Head Start programs carried out in the designated service area;
(3) The quality of the proposed program as indicated by adherence to
or evidence of the intent and capability to adhere to Head Start
Performance Standards (in 45 CFR part 1304) and program policies,
including the opportunities provided for employment of target area
residents and career development for paraprofessional and other staff
and provisions made for the direct participation of parents in the
planning, conduct and administration of the program;
(4) The proposed program design and option including the suitability
of facilities and equipment proposed to be used in carrying out the
program, as it relates to community needs and as the applicant proposes
to implement the program in accordance with program policies and
regulations; and
(5) The need for Head Start services in the community served by the
applicant.
[57 FR 41887, Sept. 14, 1992]
Sec. 1302.11 Selection among applicants to replace grantee.
The bases for making a selection among applicants which submit
approvable applications to replace a grantee, in addition to the basis
in Sec. 1302.10 of this part, shall be:
[[Page 83]]
(a) The extent to which provision is made for a continuation of
services to the eligible children who have been participating as
enrollees in the program;
(b) The extent to which provision is made for continuation of
services to the target area or areas served by the program; and
(c) The extent to which provision is made for continued employment
by the applicant of the qualified personnel of the existing program.
Subpart C_Change in Grantee Requiring Amendment of Approved Application
or Replacement of Head Start Program
Sec. 1302.20 Grantee to show both legal status and financial viability.
(a) Upon the occurrence of a change in the legal condition of a
grantee or of a substantial diminution of the financial resources of a
grantee, or both, for example, such as might result from cessation of
grants to the grantee under section 514 of the Act, the grantee is
required within 30 days after the effective date of the regulations in
this Part or the date the grantee has notice or knowledge of the change,
whichever is later, to show in writing to the satisfaction of the
responsible HHS official that it has and will continue to have legal
status and financial viability. Failure to make this showing may result
in suspension, termination or denial of refunding.
(b) The responsible HHS official will notify the grantee in writing
of the decision as to the grantee's legal status and financial viability
within 30 days after receiving the grantee's written submittal.
(c) When it is consistent with proper and efficient administration,
the responsible HHS official may extend a grantee's program year to end
on the date when a change in its legal condition or a substantial
diminution of financial resources, or both, is scheduled to take place.
Sec. 1302.21 Grantee shows legal status but not financial viability.
(a) If a grantee shows legal status but impaired financial viability
the responsible HHS official will entertain a timely request for
amendment of the grantee's approved application which restores the
grantee's financial viability either by a reduction in the program which
produces minimum disruption to services and functions, or by an
amendment which incorporates essential functions and services not
previously funded as part of the total cost of the Head Start program,
and, therefore, requires an increase in the amount of the Head Start
grant but which will not result in a Federal share of the total cost of
the Head Start program in excess of the percentage authorized by the Act
or applicable regulations. In considering such a request which includes
an increase in the Head Start grant the responsible HHS official will
take into account the funds available to him for obligation and whether
the proposed increase is consistent with that distribution of Head Start
funds which:
(1) Maximizes the number of childen served within his area of
responsibility, or in the case of experimental or demonstration
programs, the experimental or demonstration benefits to be achieved, and
(2) Maintains approximately the same distribution of Head Start
program funds to States as exist during the fiscal year in which his
decision is made.
(b) A request for amendment will be considered to be timely if it is
included with the written submittal required by Sec. 1302.20(a) of this
part, submitted within 30 days after receiving the notice required by
Sec. 1302.20(b) of this part, or submitted as a part of a timely
application for refunding.
(c) The grantee will be notified in writing by the responsible HHS
official within 30 days after submission of the requested amendment of
the decision to approve or disapprove the requested amendment. If the
requested amendment is disapproved the notice will contain a statement
of the reasons for disapproval.
Sec. 1302.22 Suspension or termination of grantee which shows
financial viability but not legal status.
If a grantee fails to show that it will continue to have legal
status after the
[[Page 84]]
date of change even though it may show financial viability, the grant
shall be suspended or terminated or refunding shall be denied as of the
date of change. If it appears reasonable to the responsible HHS official
that the deficiency in legal status will be corrected within 30 days he
may suspend the grant for not to exceed 30 days after the date of change
or the date of submission of a timely request for amendment. If such
correction has not been made within the 30 day period the grant shall be
terminated.
Sec. 1302.23 Suspension or termination of grantee which shows legal
status but not financial viability.
(a) If the date of change of financial viability precedes or will
precede the end of the grantee's program year the grant will be
suspended or terminated on that date, or, if a request for amendment has
been submitted under Sec. 1302.21 of this part, upon written notice of
disapproval of the requested amendment, whichever is later. If it
appears reasonable to the responsible HHS official that the deficiency
in financial viability will be corrected within 30 days he may suspend
the grant for not to exceed 30 days after the date of change or notice
of disapproval. If such correction has not been made within the 30 day
period the grant will be terminated.
Sec. 1302.24 Denial of refunding of grantee.
(a) If the date of change will coincide with or will come after the
end of the program year and the grantee has notice or knowledge of such
change prior to the end of the program year any action taken to approve
the grantee's application for refunding for the following program year
shall be subject to rescission or ratification depending upon the
decision of the responsible HHS official on the grantee's legal status
and financial viability and on any requested amendment submitted by the
grantee. If the requested amendment is disapproved the responsible HHS
official may extend the program year in accordance with Sec. 1302.20(c)
of this part.
(b) If the date of change coincides with the end of the program year
and the grantee does not have notice or knowledge of the change prior
thereto and the grantee's application for refunding for the following
program year has been approved, such approval shall be subject to
rescission or ratification depending upon the decision of the
responsible HHS official on the grantee's legal status and viability and
on any requested financial amendment submitted by the grantee.
(c) If the date of change will coincide with or will come after the
end of the program year and if the responsible HHS official has prior
notice thereof from the grantee or other official source such as the
Community Services Administration action to approve any application for
refunding submitted by the grantee shall be deferred pending decision by
the responsible HHS official on the grantee's legal status and financial
viability and any requested amendment submitted by the grantee.
(d) When the responsible HHS official determines to approve a
requested amendment for refunding he will approve it for the full term
of the proposed program period, if that period as approved is no longer
than a program year.
Sec. 1302.25 Control of funds of grantee scheduled for change.
Responsible HHS officials will place strict controls on the release
of grant funds to grantees which are scheduled for change by cessation
of their grants under section 519 of the Act. Specifically, the
following controls will be established:
(a) Funds will be released on a monthly basis regardless of the form
of grant payment.
(b) Funds released each month will be limited to the amount required
to cover actual disbursements during that period for activities
authorized under the approved Head Start program.
(c) The amount of funds released must be approved each month by the
responsible HHS official.
Subpart D_Replacement of Indian Tribal Grantees
Source: 63 FR 34329, June 24, 1998, unless otherwise noted.
[[Page 85]]
Sec. 1302.30 Procedure for identification of alternative agency.
(a) An Indian tribe whose Head Start grant has been terminated, or
which has been denied refunding as a Head Start grantee, may identify an
agency and request the responsible HHS official to designate such agency
as an alternative agency to provide Head Start services to the tribe if:
(1) The tribe was the only agency that was receiving federal
financial assistance to provide Head Start services to members of the
tribe; and
(2) The tribe would be otherwise precluded from providing such
services to its members because of the termination or denial of
refunding.
(b)(1) The responsible HHS official, when notifying a tribal grantee
of the intent to terminate financial assistance or deny its application
for refunding, must notify the grantee that it may identify an agency
and request that the agency serve as the alternative agency in the event
that the grant is terminated or refunding denied.
(2) The tribe must identify the alternate agency to the responsible
HHS official, in writing, within the time for filing an appeal under 45
CFR Part 1303.
(3) The responsible HHS official will notify the tribe, in writing,
whether the alternative agency proposed by the tribe is found to be
eligible for Head Start funding and capable of operating a Head Start
program. If the alternative agency identified by the tribe is not an
eligible agency capable of operating a Head Start program, the tribe
will have 15 days from the date of the sending of the notification to
that effect from the responsible HHS official to identify another agency
and request that the agency be designated. The responsible HHS official
will notify the tribe in writing whether the second proposed alternate
agency is found to be an eligible agency capable of operating the Head
Start program.
(4) If the tribe does not identify a suitable alternative agency, a
replacement grantee will be designated under these regulations.
(c) If the tribe appeals a termination of financial assistance or a
denial of refunding, it will, consistent with the terms of 45 CFR Part
1303, continue to
be funded pending resolution of the appeal. However, the responsible HHS
official and the grantee will proceed with the steps outlined in this
regulation during the appeal process.
(d) If the tribe does not identify an agency and request that the
agency be appointed as the alternative agency, the responsible HHS
official will seek a permanent replacement grantee under these
regulations.
Sec. 1302.31 Requirements of alternative agency.
The agency identified by the Indian tribe must establish that it
meets all requirements established by the Head Start Act and these
requirements for designation as a Head Start grantee and that it is
capable of conducting a Head Start program. The responsible HHS
official, in deciding whether to designate the proposed agency, will
analyze the capacity and experience of the agency according to the
criteria found in section 641(d) of the Head Start Act and Sec. Sec.
1302.10 (b)(1) through (5) and 1302.11 of this part.
Sec. 1302.32 Alternative agency--prohibition.
(a) No agency will be designated as the alternative agency pursuant
to this subpart if the agency includes an employee who:
(1) Served on the administrative or program staff of the Indian
tribal grantee, and
(2) Was responsible for a deficiency that:
(i) Relates to the performance standards or financial management
standards described in the Head Start Act; and
(ii) Was the basis for the termination or denial of refunding
described in Sec. 1302.30 of this part.
(b) The responsible HHS official shall determine whether an employee
was responsible for a deficiency within the meaning and context of this
section.
[[Page 86]]
PART 1303_APPEAL PROCEDURES FOR HEAD START GRANTEES AND CURRENT
OR PROSPECTIVE DELEGATE AGENCIES--Table of Contents
Subpart A_General
Sec.
1303.1 Purpose and application.
1303.2 Definitions.
1303.3 Right to attorney, attorney fees, and travel costs.
1303.4 Remedies.
1303.5 Service of process.
1303.6 Successor agencies and officials.
1303.7 Effect of failure to file or serve documents in a timely manner.
1303.8 Waiver of requirements.
Subpart B_Appeals by Grantees
1303.10 Purpose.
1303.11 Suspension on notice and opportunity to show cause.
1303.12 Summary suspension and opportunity to show cause.
1303.13 Appeal by a grantee of a suspension continuing for more than 30
days.
1303.14 Appeal by a grantee from a termination of financial assistance.
1303.15 Appeal by a grantee from a denial of refunding.
1303.16 Conduct of hearing.
1303.17 Time for hearing and decision.
Subpart C_Appeals by Current or Prospective Delegate Agencies
1303.20 Appeals to grantees by current or prospective delegate agencies
of rejection of an application, failure to act on an
application, or termination of a grant or contract.
1303.21 Procedures for appeal by current or prospective delegate
agencies to the responsible HHS official from denials by
grantees of an application or failure to act on an
application.
1303.22 Decision on appeal in favor of grantee.
1303.23 Decision on appeal in favor of the current or prospective
delegate agency.
1303.24 OMB control number.
Authority: 42 U.S.C. 9801 et seq.
Source: 57 FR 59264, Dec. 14, 1992, unless otherwise noted.
Subpart A_General
Sec. 1303.1 Purpose and application.
This part prescribes regulations based on section 646 of the Head
Start Act, 42 U.S.C. 9841, as it applies to grantees and current or
prospective delegate agencies engaged in or wanting to engage in the
operation of Head Start programs under the Act. It prescribes the
procedures for appeals by current and prospective delegate agencies from
specified actions or inaction by grantees. It also provides procedures
for reasonable notice and opportunity to show cause in cases of
suspension of financial assistance by the responsible HHS official and
for an appeal to the Departmental Appeals Board by grantees in cases of
denial of refunding, termination of financial assistance, and suspension
of financial assistance.
Sec. 1303.2 Definitions.
As used in this part:
Act means the Head Start Act, 42 U.S.C. section 9831, et seq.
ACYF means the Administration on Children, Youth and Families in the
Department of Health and Human Services, and includes Regional staff.
Agreement means either a grant or a contract between a grantee and a
delegate agency for the conduct of all or part of the grantee's Head
Start program.
Day means the 24 hour period beginning at 12 a.m. local time and
continuing for the next 24 hour period. It includes all calendar days
unless otherwise expressly noted.
Delegate Agency means a public or private non-profit organization or
agency to which a grantee has delegated by written agreement the
carrying out of all or part of its Head Start program.
Denial of Refunding means the refusal of a funding agency to fund an
application for a continuation of a Head Start program for a subsequent
program year when the decision is based on a determination that the
grantee has improperly conducted its program, or is incapable of doing
so properly in the future, or otherwise is in violation of applicable
law, regulations, or other policies.
Funding Agency means the agency that provides funds directly to
either a grantee or a delegate agency. ACYF is the funding agency for a
grantee, and a grantee is the funding agency for a delegate agency.
Grantee means the local public or private non-profit agency which
has been
[[Page 87]]
designated as a Head Start agency under 42 U.S.C. 9836 and which has
been granted financial assistance by the responsible HHS official to
operate a Head Start program.
Interim Grantee means an agency which has been appointed to operate
a Head Start program for a period of time not to exceed one year while
an appeal of a denial of refunding, termination or suspension action is
pending.
Prospective Delegate Agency means a public or private non-profit
agency or organization which has applied to a grantee to serve as a
delegate agency.
Responsible HHS Official means the official who is authorized to
make the grant of financial assistance to operate a Head Start program
or his or her designee.
Submittal means the date of actual receipt or the date the material
was served in accordance with Sec. 1303.5 of this part for providing
documents or notices of appeals, and similar matters, to either
grantees, delegate agencies, prospective delegate agencies, or ACYF.
Substantial Rejection means that a funding agency requires that the
funding of a current delegate agency be reduced to 80 percent or less of
the current level of operations for any reason other than a
determination that the delegate agency does not need the funds to serve
all the eligible persons it proposes to serve.
Suspension of a grant means temporary withdrawal of the grantee's
authority to obligate grant funds pending corrective action by the
grantee.
Termination of a grant or delegate agency agreement means permanent
withdrawal of the grantee's or delegate agency's authority to obligate
previously awarded grant funds before that authority would otherwise
expire. It also means the voluntary relinquishment of that authority by
the grantee or delegate agency. Termination does not include:
(1) Withdrawal of funds awarded on the basis of the grantee's or
delegate agency's underestimate of the unobligated balance in a prior
period;
(2) Refusal by the funding agency to extend a grant or award
additional funds (such as refusal to make a competing or noncompeting
continuation renewal, extension or supplemental award);
(3) Withdrawal of the unobligated balance as of the expiration of a
grant;
(4) Annulment, i.e., voiding of a grant upon determination that the
award was obtained fraudulently or was otherwise illegal or invalid from
its inception.
Work day means any 24 hour period beginning at 12 a.m. local time
and continuing for 24 hours. It excludes Saturdays, Sundays, and legal
holidays. Any time ending on one of the excluded days shall extend to 5
p.m. of the next full work day.
Sec. 1303.3 Right to attorney, attorney fees, and travel costs.
(a) All parties to proceedings under this part, including informal
proceedings, have the right to be represented by an attorney.
(1) Attorney fees may be charged to the program grant in an amount
equal to the usual and customary fees charged in the locality. However,
such fees may not exceed $250.00 per day, adjusted annually to reflect
the percentage change in the Consumer Price Index for All Urban
Consumers (issued by the Bureau of Labor Statistics) beginning one year
after the effective date of these regulations. The grantee or delegate
agency may use current operating funds to pay these costs. The fees of
only one attorney may be charged to the program grant with respect to a
particular dispute. Such fees may not be charged if the grantee or
delegate agency has an attorney on its staff, or if it has a retainer
agreement with an attorney which fully covers fees connected with
litigation. The grantee or delegate agency shall have the burden of
establishing the usual and customary fees and shall furnish
documentation to support that determination that is satisfactory to the
responsible HHS official.
(2) A grantee or delegate agency may designate up to two persons to
attend and participate in proceedings held under this Part. Travel and
per diem costs of such persons, and of an attorney representing the
grantee or delegate agency, shall not exceed those allowable under
Standard Governmental Travel Regulations in effect at the time of the
travel.
[[Page 88]]
(b) In the event that use of program funds under this section would
result in curtailment of program operations or inability to liquidate
prior obligations, the party so affected may apply to the responsible
HHS official for payment of these expenses.
(c) The responsible HHS official, upon being satisfied that these
expenditures would result in curtailment of program operations or
inability to liquidate prior obligations, must make payment therefor to
the affected party by way of reimbursement from currently available
funds.
Sec. 1303.4 Remedies.
The procedures established by subparts B and C of this Part shall
not be construed as precluding ACYF from pursuing any other remedies
authorized by law.
Sec. 1303.5 Service of process.
Whenever documents are required to be filed or served under this
part, or notice provided under this part, certified mail shall be used
with a return receipt requested. Alternatively, any other system may be
used that provides proof of the date of receipt of the documents by the
addressee. If this regulation is not complied with, and if a party
alleges that it failed to receive documents allegedly sent to it, there
will be a rebuttable presumption that the documents or notices were not
sent as required by this part, or as alleged by the party that failed to
use the required mode of service. The presumption may be rebutted only
by a showing supported by a preponderance of evidence that the material
was in fact submitted in a timely manner.
Sec. 1303.6 Successor agencies and officials.
Wherever reference is made to a particular Federal agency, office,
or official it shall be deemed to apply to any other agency, office, or
official which subsequently becomes responsible for administration of
the program or any portion of it.
Sec. 1303.7 Effect of failure to file or serve documents in a timely
manner.
(a) Whenever an appeal is not filed within the time specified in
these or related regulations, the potential appellant shall be deemed to
have consented to the proposed action and to have waived all rights of
appeal.
(b) Whenever a party has failed to file a response or other
submission within the time required in these regulations, or by order of
an appropriate HHS responsible official, the party shall be deemed to
have waived the right to file such response or submission.
(c) A party fails to comply with the requisite deadlines or time
frames if it exceeds them by any amount.
(d) The time to file an appeal, response, or other submission may be
waived in accordance with Sec. 1303.8 of this part.
Sec. 1303.8 Waiver of requirements.
(a) Any procedural requirements required by these regulations may be
waived by the responsible HHS official or such waiver requests may be
granted by the Departmental Appeals Board in those cases where the Board
has jurisdiction. Requests for waivers must be in writing and based on
good cause.
(b) Approvals of waivers must be in writing and signed by the
responsible HHS official or by the Departmental Appeals Board when it
has jurisdiction.
(c) ``Good cause'' consists of the following:
(1) Litigation dates cannot be changed;
(2) Personal emergencies pertaining to the health of a person
involved in and essential to the proceeding or to a member of that
person's immediate family, spouse, parents, or siblings;
(3) The complexity of the case is such that preparation of the
necessary documents cannot reasonably be expected to be completed within
the standard time frames;
(4) Other matters beyond the control of the party requesting the
waiver, such as strikes and natural disasters.
(d) Under no circumstances may ``good cause'' consist of a failure
to meet a deadline due to the oversight of either a party or its
representative.
[[Page 89]]
(e) Waivers of timely filing or service shall be granted only when
necessary in the interest of fairness to all parties, including the
Federal agency. They will be granted sparingly as prompt resolution of
disputes is a major goal of these regulations. The responsible HHS
official or the Departmental Appeals Board shall have the right, on own
motion or on motion of a party, to require such documentation as deemed
necessary in support of a request for a waiver.
(f) A request for an informal meeting by a delegate agency,
including a prospective delegate agency, may be denied by the
responsible HHS official, on motion of the grantee or on his or her own
motion, if the official concludes that the written appeal fails to state
plausible grounds for reversing the grantee's decision or the grantee's
failure to act on an application.
(g) The requirements of this section may not be waived.
Subpart B_Appeals by Grantees
Sec. 1303.10 Purpose.
(a) This subpart establishes rules and procedures for the suspension
of a grantee, denial of a grantee's application for refunding, or
termination of assistance under the Act for circumstances related to the
particular grant, such as ineffective or improper use of Federal funds
or for failure to comply with applicable laws, regulations, policies,
instructions, assurances, terms and conditions or, in accordance with
part 1302 of this chapter, upon loss by the grantee of legal status or
financial viability.
(b) This subpart does not apply to any administrative action based
upon any violation, or alleged violation, of title VI of the Civil
Rights Act of 1964.
Sec. 1303.11 Suspension on notice and opportunity to show cause.
(a) After receiving concurrence from the Commissioner, ACYF, the
responsible HHS official may suspend financial assistance to a grantee
in whole or in part for breach or threatened breach of any requirement
stated in Sec. 1303.10 pursuant to notice and opportunity to show cause
why assistance should not be suspended.
(b) The responsible HHS official will notify the grantee as required
by Sec. 1303.5 or by telegram that ACYF intends to suspend financial
assistance, in whole or in part, unless good cause is shown why such
action should not be taken. The notice will include:
(1) The grounds for the proposed suspension;
(2) The effective date of the proposed suspension;
(3) Information that the grantee has the opportunity to submit
written material in opposition to the intended suspension and to meet
informally with the responsible HHS official regarding the intended
suspension;
(4) Information that the written material must be submitted to the
responsible HHS official at least seven days prior to the effective date
of the proposed suspension and that a request for an informal meeting
must be made in writing to the responsible HHS official no later than
seven days after the day the notice of intention to suspend was mailed
to the grantee;
(5) Invitation to correct the deficiency by voluntary action; and
(6) A copy of this subpart.
(c) If the grantee requests an informal meeting, the responsible HHS
official will fix a time and place for the meeting. In no event will
such meeting be scheduled less than seven days after the notice of
intention to suspend was sent to the grantee.
(d) The responsible HHS official may at his or her discretion extend
the period of time or date for making requests or submitting material by
the grantee and will notify the grantee of any such extension.
(e) At the time the responsible HHS official sends the notice of
intention to suspend financial assistance to the grantee, the official
will send a copy of it to any delegate agency whose activities or
failures to act are a substantial cause of the proposed suspension, and
will inform such delegate agency that it is entitled to submit written
material in opposition and to participate in the informal meeting with
the responsible HHS official if one is held. In addition, the
responsible HHS official may give such notice to any other Head Start
delegate agency of the grantee.
[[Page 90]]
(f) Within three days of receipt of the notice of intention to
suspend financial assistance, the grantee shall send a copy of such
notice and a copy of this subpart to all delegate agencies which would
be financially affected by the proposed suspension action. Any delegate
agency that wishes to submit written material may do so within the time
stated in the notice. Any delegate agency that wishes to participate in
the informal meeting regarding the intended suspension, if not otherwise
afforded a right to participate, may request permission to do so from
the responsible HHS official, who may grant or deny such permission. In
acting upon any such request from a delegate agency, the responsible HHS
official will take into account the effect of the proposed suspension on
the particular delegate agency, the extent to which the meeting would
become unduly complicated as a result of granting such permission, and
the extent to which the interests of the delegate agency requesting such
permission appear to be adequately represented by other participants.
(g) The responsible HHS official will consider any timely material
presented in writing, any material presented during the course of the
informal meeting as well as any showing that the grantee has adequately
corrected the deficiency which led to the suspension proceedings. The
decision of the responsible HHS official will be made within five days
after the conclusion of the informal meeting, or, if no informal meeting
is held, within five days of receipt by the responsible HHS official of
written material from all concerned parties. If the responsible HHS
official concludes that the grantee has failed to show cause why
financial assistance should not be suspended, the official may suspend
financial assistance in whole or in part and under such terms and
conditions as he or she specifies.
(h) Notice of such suspension will be promptly transmitted to the
grantee as required in Sec. 1303.5 of this part or by some other means
showing the date of receipt, and shall become effective upon delivery or
on the date delivery is refused or the material is returned. Suspension
shall not exceed 30 days unless the responsible HHS official and the
grantee agree to a continuation of the suspension for an additional
period of time. If termination proceedings are initiated in accordance
with Sec. 1303.14, the suspension of financial assistance will be
rescinded.
(i) New obligations incurred by the grantee during the suspension
period will be not be allowed unless the granting agency expressly
authorizes them in the notice of suspension or an amendment to it.
Necessary and otherwise allowable costs which the grantee could not
reasonably avoid during the suspension period will be allowed if they
result from obligations properly incurred by the grantee before the
effective date of the suspension and not in anticipation of suspension
or termination. At the discretion of the granting agency, third-party
in-kind contributions applicable to the suspension period may be allowed
in satisfaction of cost sharing or matching requirements.
(j) The responsible HHS official may appoint an agency to serve as
an interim grantee to operate the program until the grantee's suspension
is lifted.
(k) The responsible HHS official may modify the terms, conditions
and nature of the suspension or rescind the suspension action at any
time on his or her own initiative or upon a satisfactory showing that
the grantee has adequately corrected the deficiency which led to the
suspension and that repetition is not threatened. Suspension partly or
fully rescinded may, at the discretion of the responsible HHS official,
be reimposed with or without further proceedings, except that the total
time of suspension may not exceed 30 days unless termination proceedings
are initiated in accordance with Sec. 1303.14 or unless the responsible
HHS official and the grantee agree to continuation of the suspension for
an additional period of time. If termination proceedings are initiated,
the suspension of financial assistance will be rescinded.
Sec. 1303.12 Summary suspension and opportunity to show cause.
(a) After receiving concurrence from the Commissioner, ACYF, the
responsible HHS official may suspend financial assistance in whole or in
part
[[Page 91]]
without prior notice and an opportunity to show cause if it is
determined that immediate suspension is necessary because of a serious
risk of:
(1) Substantial injury to property or loss of project funds; or
(2) Violation of a Federal, State, or local criminal statute; or
(3) If staff or participants' health and safety are at risk.
(b) The notice of summary suspension will be given to the grantee as
required by Sec. 1303.5 of this part, or by some other means showing
the date of receipt, and shall become effective on delivery or on the
date delivery is refused or the material is returned unclaimed.
(c) The notice must include the following items:
(1) The effective date of the suspension;
(2) The grounds for the suspension;
(3) The extent of the terms and conditions of any full or partial
suspension;
(4) A statement prohibiting the grantee from making any new
expenditures or incurring any new obligations in connection with the
suspended portion of the program; and
(5) A statement advising the grantee that it has an opportunity to
show cause at an informal meeting why the suspension should be
rescinded. The request for an informal meeting must be made by the
grantee in writing to the responsible HHS official no later than five
workdays after the effective date of the notice of summary suspension as
described in paragraph (b) of this section.
(d) If the grantee requests in writing the opportunity to show cause
why the suspension should be rescinded, the responsible HHS official
will fix a time and place for an informal meeting for this purpose. This
meeting will be held within five workdays after the grantee's request is
received by the responsible HHS official. Notwithstanding the provisions
of this paragraph, the responsible HHS official may proceed to deny
refunding or initiate termination proceedings at any time even though
financial assistance of the grantee has been suspended in whole or in
part.
(e) Notice of summary suspension must also be furnished by the
grantee to its delegate agencies within two workdays of its receipt of
the notice from ACYF by certified mail, return receipt requested, or by
any other means showing dates of transmittal and receipt or return as
undeliverable or unclaimed. Delegate agencies affected by the summary
suspension have the right to participate in the informal meeting as set
forth in paragraph (d) of this section.
(f) The effective period of a summary suspension of financial
assistance may not exceed 30 days unless:
(1) The conditions creating the summary suspension have not been
corrected; or
(2) The parties agree to a continuation of the summary suspension
for an additional period of time; or
(3) The grantee, in accordance with paragraph (d) of this section,
requests an opportunity to show cause why the summary suspension should
be rescinded, in which case it may remain in effect in accordance with
paragraph (h) of this section; or
(4) Termination or denial of refunding proceedings are initiated in
accordance with Sec. 1303.14 or Sec. 1303.15.
(g) Any summary suspension that remains in effect for more than 30
days is subject to the requirements of Sec. 1303.13 of this part. The
only exceptions are where there is an agreement under paragraph (f)(2)
of this section, or the circumstances described in paragraph (f)(4) or
(h)(1) of this section exist.
(h)(1) If the grantee requests an opportunity to show cause why a
summary suspension should be rescinded, the suspension of financial
assistance will continue in effect until the grantee has been afforded
such opportunity and a decision has been made by the responsible HHS
official.
(2) If the suspension continues for more than 30 days, the
suspension remains in effect even if it is appealed to the Departmental
Appeals Board.
(3) Notwithstanding any other provisions of these or other
regulations, if a denial of refunding occurs or a termination action is
instituted while the summary suspension is in effect, the suspension
shall merge into the later action and funding shall not be available
until the action is rescinded or a decision favorable to the grantee is
rendered.
[[Page 92]]
(i) The responsible HHS official must consider any timely material
presented in writing, any material presented during the course of the
informal meeting, as well as any other evidence that the grantee has
adequately corrected the deficiency which led to the summary suspension.
(j) A decision must be made within five work days after the
conclusion of the informal meeting with the responsible HHS official. If
the responsible HHS official concludes, after considering the
information provided at the informal meeting, that the grantee has
failed to show cause why the suspension should be rescinded, the
responsible HHS official may continue the suspension, in whole or in
part and under the terms and conditions specified in the notice of
suspension.
(k) New obligations incurred by the grantee during the suspension
period will not be allowed unless the granting agency expressly
authorizes them in the notice of suspension or by an amendment to the
notice. Necessary and otherwise allowable costs which the grantee could
not reasonably avoid during the suspension period will be allowed if
they result from obligations properly incurred by the grantee before the
effective date of the suspension and not in anticipation of suspension,
denial of refunding or termination.
(l) The responsible HHS official may appoint an agency to serve as
an interim grantee to operate the program until either the grantee's
summary suspension is lifted or a new grantee is selected in accordance
with subpart B of this part.
(m) At the discretion of the funding agency, third-party in-kind
contributions applicable to the suspension period may be allowed in
satisfaction of cost sharing or matching requirements.
(n) The responsible HHS official may modify the terms, conditions
and nature of the summary suspension or rescind the suspension action at
any time upon receiving satisfactory evidence that the grantee has
adequately corrected the deficiency which led to the suspension and that
the deficiency will not occur again. Suspension partly or fully
rescinded may, at the discretion of the responsible HHS official, be
reimposed with or without further proceedings.
Sec. 1303.13 Appeal by a grantee of a suspension continuing for more
than 30 days.
(a) This section applies to summary suspensions that are initially
issued for more than 30 days and summary suspensions continued for more
than 30 days except those identified in paragraph Sec. 1303.12(g) of
this part.
(b) After receiving concurrence from the Commissioner, ACYF, the
responsible HHS official may suspend a grant for more than 30 days. A
suspension may, among other bases, be imposed for the same reasons that
justify termination of financial assistance or which justify a denial of
refunding of a grant.
(c) A notice of a suspension under this section shall set forth:
(1) The reasons for the action;
(2) The duration of the suspension, which may be indefinite;
(3) The fact that the action may be appealed to the Departmental
Appeals Board and the time within which it must be appealed.
(d) During the period of suspension a grantee may not incur any
valid obligations against Federal Head Start grant funds, nor may any
grantee expenditure or provision of in-kind services or items of value
made during the period be counted as applying toward any required
matching contribution required of a grantee, except as otherwise
provided in this part.
(e) The responsible HHS official may appoint an agency to serve as
an interim grantee to operate the program until either the grantee's
suspension is lifted or a new grantee is selected in accordance with
subparts B and C of 45 CFR part 1302.
(f) Any appeal to the Departmental Appeals Board must be made within
five days of the grantee's receipt of notice of suspension or return of
the notice as undeliverable, refused, or unclaimed. Such an appeal must
be in writing and it must fully set forth the grounds for the appeal and
be accompanied by all documentation that the grantee believes is
relevant and supportive of its position.
[[Page 93]]
All such appeals shall be addressed to the Departmental Appeals
Board, and the appellant will send a copy of the appeal to the
Commissioner, ACYF, and the responsible HHS official. Appeals will be
governed by the Departmental Appeals Board's regulations at 45 CFR part
16, except as otherwise provided in the Head Start appeals regulations.
Any grantee requesting a hearing as part of its appeal shall be afforded
one by the Departmental Appeals Board.
(g) If a grantee is successful on its appeal any costs incurred
during the period of suspension that are otherwise allowable may be paid
with Federal grant funds. Moreover, any cash or in-kind contributions of
the grantee during the suspension period that are otherwise allowable
may be counted toward meeting the grantee's non-Federal share
requirement.
(h) If a grantee's appeal is denied by the Departmental Appeals
Board, but the grantee is subsequently restored to the program because
it has corrected those conditions which warranted the suspension, its
activities during the period of the suspension remain outside the scope
of the program.
Federal funds may not be used to offset any costs during the period,
nor may any cash or in-kind contributions received during the period be
used to meet non-Federal share requirements.
(i) If the Federal agency institutes termination proceedings during
a suspension, or denies refunding, the two actions shall merge and the
grantee need not file a new appeal. Rather, the Departmental Appeals
Board will be notified by the Federal agency and will automatically be
vested with jurisdiction over the termination action or the denial of
refunding and will, pursuant to its rules and procedures, permit the
grantee to respond to the notice of termination. In a situation where a
suspension action is merged into a termination action in accordance with
this section, the suspension continues until there is an administrative
decision by the Departmental Appeals Board on the grantee's appeal.
Sec. 1303.14 Appeal by a grantee from a termination of financial
assistance.
(a) After receiving concurrence from the Commissioner, ACYF, the
responsible HHS official may terminate financial assistance to a
grantee. Financial assistance may be terminated in whole or in part.
(b) Financial assistance may be terminated for any or all of the
following reasons:
(1) The grantee is no longer financially viable;
(2) The grantee has lost the requisite legal status or permits;
(3) The grantee has failed to comply with the required fiscal or
program reporting requirements applicable to grantees in the Head Start
program;
(4) The grantee has failed to timely correct one or more
deficiencies as defined in 45 CFR Part 1304;
(5) The grantee has failed to comply with the eligibility
requirements and limitations on enrollment in the Head Start program, or
both;
(6) The grantee has failed to comply with the Head Start grants
administration requirements set forth in 45 CFR part 1301;
(7) The grantee has failed to comply with the requirements of the
Head Start Act;
(8) The grantee is debarred from receiving Federal grants or
contracts;
(9) The grantee fails to abide by any other terms and conditions of
its award of financial assistance, or any other applicable laws,
regulations, or other applicable Federal or State requirements or
policies.
(c) A notice of termination shall set forth:
(1) The legal basis for the termination under paragraph (b) of this
section, the factual findings on which the termination is based or
reference to specific findings in another document that form the basis
for the termination (such as reference to item numbers in an on-site
review report or instrument), and citation to any statutory provisions,
regulations, or policy issuances on which ACF is relying for its
determination.
(2) The fact that the termination may be appealed within 30 days to
the Departmental Appeals Board (with a
[[Page 94]]
copy of the appeal sent to the responsible HHS official and the
Commissioner, ACYF) and that such appeal shall be governed by 45 CFR
part 16, except as otherwise provided in the Head Start appeals
regulations, and that any grantee that requests a hearing shall be
afforded one, as mandated by 42. U.S.C. 9841.
(3) That the appeal may be made only by the Board of Directors of
the grantee or an official acting on behalf of such Board.
(4) That, if the activities of a delegate agency are the basis, in
whole or in part, for the proposed termination, the identity of the
delegate agency.
(5) That the grantee's appeal must meet the requirements set forth
in paragraph (d) of this section.
(6) That a failure by the responsible HHS official to meet the
requirements of this paragraph may result in the dismissal of the
termination action without prejudice, or the remand of that action for
the purpose of reissuing it with the necessary corrections.
(d) A grantee's appeal must:
(1) Be in writing;
(2) Specifically identify what factual findings are disputed;
(3) Identify any legal issues raised, including relevant citations;
(4) Include an original and two copies of each document the grantee
believes is relevant and supportive of its position (unless the grantee
has obtained permission from the Departmental Appeals Board to submit
fewer copies);
(5) Include any request for specifically identified documents the
grantee wishes to obtain from ACF and a statement of the relevance of
the requested documents, and a statement that the grantee has attempted
informally to obtain the documents from ACF and was unable to do so;
(6) Grantees may submit additional documents within 14 days of
receipt of the documentation submitted by ACF in response to the
grantee's appeal and initial submittals. The ACF response to the appeal
and initial submittals of the grantee shall be filed no later than 30
days after ACF's receipt of the material. In response to such a
submittal, ACF may submit additional documents should it have any, or
request discovery in connection with the new documents, or both, but
must do so within 10 days of receipt of the additional filings;
(7) Include a statement on whether the grantee is requesting a
hearing; and
(8) Be filed with the Departmental Appeals Board and be served on
the responsible HHS official who issued the termination notice and on
the Commissioner of ACYF. The grantee must also serve a copy of the
appeal on any delegate agency that would be financially affected at the
time the grantee files its appeal.
(e) The Departmental Appeals Board sanctions with respect to a
grantee's failure to comply with the provisions of paragraph (d) of this
section are as follows:
(1) If in the judgment of the Departmental Appeals Board a grantee
has failed to substantially comply with the provisions of the preceding
paragraphs of this section, its appeal must be dismissed with prejudice.
(2) If the Departmental Appeals Board concludes that the grantee's
failures are not substantial, but are confined to one or a few specific
instances, it shall bar the submittal of an omitted document, or
preclude the raising of an argument or objection not timely raised in
the appeal, or deny a request for a document or other ``discovery''
request not timely made.
(3) The sanctions set forth in paragraphs (e)(1) and (2) of this
section shall not apply if the Departmental Appeals Board determines
that the grantee has shown good cause for its failure to comply with the
relevant requirements. Delays in obtaining representation shall not
constitute good cause. Matters within the control of its agents and
attorneys shall be deemed to be within the control of the grantee.
(f) (1) During a grantee's appeal of a termination decision, funding
will continue until an adverse decision is rendered or until expiration
of the then current budget period. At the end of the current budget
period, if a decision has not been rendered, the responsible HHS
official shall award an interim grant to the grantee until a decision is
made.
[[Page 95]]
(2) If a grantee's funding has been suspended, no funding shall be
available during the termination proceedings, or at any other time,
unless the action is rescinded or the grantee's appeal is successful. An
interim grantee will be appointed during the appeal period.
(3) If a grantee does not appeal an administrative decision to court
within 30 days of its receipt of the decision, a replacement grantee
will be immediately sought. An interim grantee may be named, if needed,
pending the selection of a replacement grantee.
(4) An interim grantee may be sought even though the grantee has
appealed an administrative decision to court within 30 days, if the
responsible HHS official determines it necessary to do so. Examples of
circumstances that warrant an interim grantee are to protect children
and families from harm and Federal funds from misuse or dissipation or
both.
(g) If the Departmental Appeals Board informs a grantee that a
proposed termination action has been set down for hearing, the grantee
shall, within five days of its receipt of this notice, send a copy of it
to all delegate agencies which would be financially affected by the
termination and to each delegate agency identified in the notice. The
grantee shall send the Departmental Appeals Board and the responsible
HHS official a list of all delegate agencies notified and the dates of
notification.
(h) If the responsible HHS official initiated termination
proceedings because of the activities of a delegate agency, that
delegate agency may participate in the hearing as a matter of right. Any
other delegate agency, person, agency or organization that wishes to
participate in the hearing may request permission to do so from the
Departmental Appeals Board. Any request for participation, including a
request by a delegate agency, must be filed within 30 days of the
grantee's appeal.
(i) The results of the proceeding and any measure taken thereafter
by ACYF pursuant to this part shall be fully binding upon the grantee
and all its delegate agencies, whether or not they actually participated
in the hearing.
(j) A grantee may waive a hearing and submit written information and
argument for the record. Such material shall be submitted within a
reasonable period of time to be fixed by the Departmental Appeals Board
upon the request of the grantee. The failure of a grantee to request a
hearing, or to appear at a hearing for which a date had been set, unless
excused for good cause, shall be deemed a waiver of the right to a
hearing and consent to the making of a decision on the basis of written
information and argument submitted by the parties to the Departmental
Appeals Board.
(k) The responsible HHS official may attempt, either personally or
through a representative, to resolve the issues in dispute by informal
means prior to the hearing.
[57 FR 59264, Dec. 14, 1992, as amended at 61 FR 57226, Nov. 5, 1996; 65
FR 4768, Feb. 1, 2000]