[Federal Register Volume 59, Number 29 (Friday, February 11, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2535]


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[Federal Register: February 11, 1994]


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DEPARTMENT OF JUSTICE

28 CFR Part 42

[AG Order No. 1843-94]

 

Nondiscrimination on The Basis of Age in Federally Assisted 
Programs--Implementation of The Age Discrimination Act of 1975

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: This regulation implements the Age Discrimination Act of 1975, 
as amended (Act), with regard to programs receiving federal financial 
assistance from the Department of Justice (Department).
    The Act prohibits, subject to certain exceptions, discrimination on 
the basis of age in federally assisted programs. The Act requires each 
federal agency that extends financial assistance to issue an 
implementing regulation. Also, pursuant to the Act, the Secretary of 
Health and Human Services (HHS) has issued a general regulation to 
guide federal agencies regarding their implementation of the Act. This 
regulation is based upon the HHS general regulation.

EFFECTIVE DATE: February 11, 1994.

FOR FURTHER INFORMATION CONTACT:
Stewart B. Oneglia, Chief, Coordination and Review Section, Civil 
Rights Division, Department of Justice, Washington, DC 20530; (202) 
307-2222 (Voice) or (202) 307-7678 (TDD). This is not a toll-free 
number.

SUPPLEMENTARY INFORMATION:

General

    The Age Discrimination Act of 1975, as amended (42 U.S.C. 6101-
6107), covers such practices as the way in which recipients of Federal 
financial assistance provide benefits and services. The Act does not 
apply to employment practices, except in regard to certain programs 
funded under the Job Training Partnership Act, as amended (29 U.S.C. 
1501-1791j).
    Unlike the Age Discrimination in Employment Act of 1967, as amended 
(29 U.S.C. 621-634), the basic coverage of which is limited to persons 
who are at least 40 years of age, the Age Discrimination Act applies to 
any kind of age distinction. That is, the present Act applies to age-
related practices affecting children, elderly persons, or any other 
persons.
    This regulation applies to programs or activities receiving 
financial assistance from the Department of Justice. The largest amount 
of such assistance is administered by the Office of Justice Programs 
(OJP), which provides staff support to and coordinates the activities 
of the National Institute of Justice, the Bureau of Justice Statistics, 
the Office of Juvenile Justice and Delinquency Prevention, and the 
Bureau of Justice Assistance. The Office of Justice Programs includes 
the Office for Victims of Crime. Other parts of the Department that 
extend such assistance are the Federal Bureau of Investigation, the 
Bureau of Prisons, the Drug Enforcement Administration, the National 
Institute of Corrections, the Community Relations Service, the U.S. 
Parole Commission, the Immigration and Naturalization Service, and the 
U.S. Marshals Service. See Appendix A to subpart C of 28 CFR part 42 
for a list of the Department's financial assistance programs to which 
this subpart is applicable.
    This regulation covers federally assisted programs or activities in 
the same manner as other civil rights authorities, such as title VI of 
the Civil Rights Act of 1964 (42 U.S.C. 2000d-2000d-4a), title IX of 
the Education Amendments of 1972, as amended (20 U.S.C. 1681-1687), and 
section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 
794).

Standards for Determining Age Discrimination

    The Act sets forth a general prohibition against age discrimination 
in federally assisted programs, but the prohibition is subject to three 
exceptions. The general regulation of the Secretary of HHS deals with 
the nature of the exceptions (45 CFR part 90). This regulation 
(Secs. 42.711-42.736) follows the substance of the HHS general 
regulation.

Compliance Procedures

    Section 42.731 of the regulation, which deals with the handling of 
complaints, is based upon the applicable provision of the HHS general 
regulation (45 CFR 90.43(c)). Section 42.731(b) of the regulation 
states that a complaint may be filed by an ``aggrieved'' person. 
Section 42.731(a) makes clear that this limitation is not intended to 
prevent any person who has information regarding a possible violation 
of this regulation from providing the information to the Department.
    Complaints should be sent to the component within the Department 
that is responsible for the provision of financial assistance to the 
program or activity in which discrimination is alleged. Complaints 
about programs or activities receiving financial assistance from OJP 
(including offices coordinated by OJP) should be directed to: Director, 
Office of Civil Rights Compliance, Office of Justice Programs, U.S. 
Department of Justice, 633 Indiana Avenue, NW., Room 1254-B, 
Washington, DC 20531.
    Upon receipt of a complaint, the Department will refer it to the 
Federal Mediation and Conciliation Service for mediation. If the 
complaint is not resolved after mediation, the Department shall 
promptly investigate it.
    With regard to means of enforcement by the Department, the 
provisions of the Act are similar to those of title VI of the Civil 
Rights Act of 1964 (42 U.S.C. 2000d-2000d-4a), in that the basis means 
of enforcement are (1) An administrative proceeding to terminate 
federal financial assistance or (2) a lawsuit by the Department of 
enjoin discriminatory practices. In addition, the Act expressly 
authorizes lawsuits by private parties who have exhausted their 
administrative remedies.
    Under Sec. 42.733(b)(2) of this regulation, a final decision 
terminating OJP grants to a recipient may be made by the Assistant 
Attorney General, OJP, rather than by the Attorney General. This 
provision is consistent with the responsibility of the Assistant 
Attorney General, OJP, under the nondiscrimination provision of the 
Justice System Improvement Act, as amended (42 U.S.C. 3789d(c)).

Effective Date of Prohibitions

    HHS has taken the position that the Act's prohibitions became 
effective on July 1, 1979. See section 304(a)(5) of the Act, as amended 
(42 U.S.C. 6103(a)(5)). The Department of Justice will investigate 
complaints of alleged discrimination that occurred on or after July 1, 
1979, the effective date of the Age Discrimination Act, and prior to 
the effective date of this regulation, to the extent that those 
complaints charge violations of the statute that do not require for 
their resolution the interpretive language of this regulation.

Rulemaking History

    On May 19, 1980, the Department of Justice published its proposed 
regulation implementing the Act (45 FR 32710). We received written 
comments from two members of the public; these comments related to the 
proposed section on self-evaluation (which is discussed below). We also 
received comments from HHS.
    Because of extended delays in the interagency review process, it 
has been necessary to review the regulation in its entirety to revise 
and update it. The substance of the final regulation is essentially the 
same as the proposed regulation. Differences include the following:
    The proposed rule indicated that it would be placed in subpart H of 
part 42 of title 28 of the Code of Federal Regulations and that 
sections would be numbered 28 CFR 42.600-42.636. During the intervening 
years another regulation was designated subpart H of part 42 of title 
28 of the Code of Federal Regulations. Accordingly, the final rule is 
added as subpart I of part 42 of title 28 of the Code of Federal 
Regulations and the sections are numbered 28 CFR 42.700-42.736.
    Reference in the Act to the Comprehensive Employment and Training 
Act was substituted for reference to the Job Training Partnership Act 
of 1982. See 29 U.S.C. 1592. This change is reflected in Sec. 42.701(b) 
of the final regulation.
    Components of the Department providing federal financial assistance 
have changed since the proposed rule was published. There is no longer 
a Law Enforcement Assistance Administration. The OJP, which includes 
the Office of Victims of Crime, and which coordinates the activities of 
the National Institute of Justice, the Bureau of Justice Statistics, 
the Office of Juvenile Justice and Delinquency Prevention, and the 
Bureau of Justice Assistance, is now the major component of the 
Department through which financial assistance is provided to 
recipients. This change is reflected in the final regulation.
    In a number of instances in which the proposed regulation referred 
to ``federally assisted program[s]'' the final regulation refers to 
``program[s] or activit[ies]'' in order to track completely the 
statutory language. In addition, several provisions have been revised 
to incorporate a reference to the recipient's ``federally assisted 
program or activity'' to clarify the scope of coverage as reflecting 
the language of the statute. The definition section now includes the 
definition of ``program or activity'' as provided in the Civil Rights 
Restoration Act of 1987 (see 42 U.S.C. 2000d-4a).
    The definition of ``Secretary,'' Sec. 42.702, has been amended to 
refer to the Secretary of Health and Human Services, rather than to the 
Secretary of Health, Education, and Welfare.
    The examples that had been presented in the proposed regulation in 
proposed Secs. 42.611-42.613 (cf. final rule, Secs. 42.711-42.713) have 
been deleted. Upon review it was determined that the examples did not 
enhance an understanding of the general principles articulated in those 
sections.
    In response to HHS's objection to the absence of a provision 
pertaining to special benefits for children and elderly persons, the 
final rule includes such a provision in Sec. 42.714. This section is 
derived from the HHS regulation implementing the Act in HHS's own 
financial assistance programs (45 CFR 90.49(c)).
    Proposed Sec. 42.622, which would have required recipients to 
prepare a written self-evaluation of their compliance with the 
regulation, has been modified in Sec. 42.722 to follow the provisions 
of HHS's regulation for HHS-assisted programs (45 CFR 91.33).
    A new Sec. 42.725 has been added that establishes the obligation of 
recipients to execute written assurances, as specified by the 
Department, that the recipient will comply with the subpart in its 
federally assisted programs and activities.
    Proposed Sec. 42.631 has been amended in final Sec. 42.731, by 
addition of a new subsection (a), to make clear that any person who has 
information regarding a possible violation of this regulation may 
provide the information to the Department.
    Proposed Sec. 42.631(c) has been revised in final Sec. 42.731(d). 
Section 42.731(d) continues to state that complainants and recipients 
may request information from the Department concerning the complaint 
process, but the reference to ``assistance'' has been deleted to 
prevent a misunderstanding about the Department's role.
    Proposed Sec. 42.631(d)(2), which deals with the mediation process, 
has been modified in final Sec. 42.731(e)(2) to conform to the general 
regulation of HHS (45 CFR 90.43(c)(3)(ii)).
    The Department has added an appendix (Appendix A) that provides a 
cross-reference to federal financial assistance administered by the 
Department to which this subpart applies.
    In addition, pursuant to the HHS general regulations (45 CFR 
90.31(f)), the Department has added an appendix (Appendix B) that 
describes age distinctions provided in federal statutes or Department 
regulations affecting financial assistance administered by the 
Department.

Regulatory Analysis

    In accordance with 5 U.S.C. 605(b), the Attorney General certifies 
that this rule does not have a significant adverse economic impact on a 
substantial number of small entities. This rule is not considered to be 
a major rule within the meaning of section 1(b) of E.O. 12291, nor does 
that rule have federalism implications warranting the preparation of a 
Federalism Assessment in accordance with section 6 of E.O. 12612.

List of Subjects in 28 CFR Part 42

    Administrative practice and procedure, Age discrimination, Blind, 
Buildings and facilities, Civil rights, Employment, Equal educational 
opportunity, Equal employment opportunity, Government employees, Grant 
programs, Disabled, Religious discrimination, Sex discrimination.


    Dated: January 31, 1994.

    Accordingly, part 42 of title 28 of the Code of Federal Regulations 
is amended by adding subpart I to read as follows:
Janet Reno,
Attorney General.

PART 42--NONDISCRIMINATION; EQUAL EMPLOYMENT OPPORTUNITY; POLICIES 
AND PROCEDURES

Subpart I--Nondiscrimination on the Basis of Age in Federally Assisted 
Programs and Activities; Implementation of the Age Discrimination Act 
of 1975
Sec.

General Provisions

42.700  Purpose.
42.701  Application.
42.702  Definitions.
42.703-42.709  [Reserved]

Standards for Determining Age Discrimination

42.710  General prohibition.
42.711  Exception; authorized by law.
42.712  Exception; normal operation or statutory objective.
42.713  Exception; reasonable factors other than age.
42.714  Special benefits.
42.715  Burden of proof regarding exceptions.
42.716-42.719  [Reserved]

Duties of Recipients

42.720  General responsibility.
42.721  Notice to subrecipients.
42.722  Recipient assessment of age distinctions.
42.723  Compliance information.
42.724  Remedial and affirmative action.
42.725  Assurance of compliance.
42.726-42.729  [Reserved]

Compliance Procedures

42.730  Compliance reviews.
42.731  Complaints.
42.732  Prohibition against intimidation.
42.733  Enforcement procedures.
42.734  Alternative funding.
42.735  Judicial review.
42.736  Private lawsuits.
42.737-42.799  [Reserved]
Appendix A to Subpart I of Part 42--Federal Financial Assistance 
Administered by the Department of Justice to Which This Subpart 
Applies
Appendix B to Subpart I of Part 42--Age Distinctions in Federal 
Statutes or Regulations Affecting Financial Assistance Administered 
by the Department of Justice

Subpart I--Nondiscrimination on the Basis of Age in Federally 
Assisted Programs and Activities; Implementation of the Age 
Discrimination Act of 1975

    Authority: 42 U.S.C. 6103(a)(4); 45 CFR Part 90.

General Provisions


Sec. 42.700  Purpose.

    (a) This subpart implements the Age Discrimination Act of 1975, as 
amended (42 U.S.C. 5101-6107) (Act). Subject to certain exceptions, the 
Act prohibits discrimination on the basis of age in programs or 
activities receiving federal financial assistance.
    (b) The Secretary of Health and Human Services has issued a general 
regulation (45 CFR Part 90) to guide other federal agencies regarding 
implementation of the Act. This subpart is generally based upon that 
general regulation.


Sec. 42.701  Application.

    (a) This subpart applies to each program or activity that receives 
federal financial assistance from the Department of Justice.
    (b) This subpart does not apply to employment practices, except to 
those occurring in programs that receive federal financial assistance 
under the Job Training Partnership Act.


Sec. 42.72  Definitions.

    As used in this subpart, the term:
    Act means the Age Discrimination Act of 1975, as amended, 42 U.S.C. 
6101-6107.
    Action means any act, activity, policy, rule, standard, or method 
of administration; or the use of any policy, rule, standard, or method 
of administration.
    Age distinction means any action using age or an age-related term.
    Age-related term means a term that necessarily implies a particular 
age or range of ages (e.g., ``youth,'' ``juvenile,'' ``adult,'' ``older 
persons,'' but not ``student'').
    Department means the Department of Justice.
    Federal financial assistance means any grant, entitlement, loan, 
cooperative agreement, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement by which 
the Department provides assistance in the form of:
    (1) Funds;
    (2) Services of federal personnel; or
    (3) Real or personal property or any interest in or use of such 
property, including--
    (1) Transfers or leases of property for less than fair market value 
or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of property if 
the federal share of its fair market value is not returned to the 
federal government.
    FMCS means the Federal Mediation and Conciliation Service.
    OJP means the Office of Justice Programs. OJP coordinates the work 
of the Bureau of Justice Assistance, the National Institute of Justice, 
the Bureau of Justice Statistics, and the Office of Juvenile Justice 
and Delinquency Prevention; OJP includes the Office for Victims of 
Crime.
    Program or activity means all of the operations of--
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a state or of a local government;
    (ii) The entity of such state and 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 cases 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 section 198(a)(10) 
of the Elementary and Secondary Education Act of 1965, 20 U.S.C. 
2891(12)), 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) If such entity 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 (1), (2), or (3) of this definition, 
any part of which is extended federal financial assistance.
    Recipient means any state or political subdivision, any 
instrumentality of a State or political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which federal financial assistance is extended, directly or 
through another recipient. ``Recipient'' includes any successor, 
assignee, or transferee, but does not include the ultimate beneficiary 
of the assistance.
    Secretary means the Secretary of Health and Human Services or his 
or her designee.
    United States means the fifty States, the District of Columbia, 
Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the 
Trust Territory of the Pacific Islands, the Northern Marinas, and the 
territories and possessions of the United States.


Secs. 42.703-42.709  [Reserved]

Standards for Determining Age Discrimination


Sec. 42.710  General prohibition.

    (a) Subject to the exceptions discussed in Secs. 42.711-42.713, no 
person in the United States shall, on the basis of age, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in any program or activity to which this subpart 
applies. This prohibition applies to actions taken by a recipient, 
directly or through contractual or other arrangements, that have the 
purpose or effect of discriminating on the basis of age.
    (b) This prohibition encompasses treatment of elderly persons, 
children and any other age group. Unless one of the exception applies, 
the recipient may use neither a minimum age limit nor a maximum age 
limit in connection with receipt of benefits or services or other 
participation in a program subject to this subpart.


Sec. 42.711  Exception; authorized by law.

    (a) This subpart does not apply to an age distinction contained in 
a portion of a federal or state statute or a local statute or ordinance 
adopted by an elected, general-purpose legislative body which portion:
    (1) Provides any benefits or assistance to persons on the basis of 
age;
    (2) Establishes criteria for participation in age-related terms; or
    (3) Describes intended beneficiaries or target groups in age-
related terms.
    (b) The exception set forth in paragraph (a) of this section does 
not extend to regulations adopted by an administrative agency pursuant 
to a specific statutory provision or otherwise.


Sec. 42.712  Exception; normal operation or statutory objective.

    (a) A recipient may take an action that would otherwise be 
prohibited by Sec. 42.710(a), if such action reasonably takes age into 
account as a factor necessary to the normal operation of or the 
achievement of any statutory objective of the program or activity.
    (1) ``Normal operation'' refers to the operation of a program or 
activity without significant changes that would impair its ability to 
meet its objectives.
    (2) A ``statutory objective'' of a program is a purpose that is 
expressly stated in a federal or state statute or a local statute or 
ordinance adopted by an elected, general-purpose body.
    (b) This exception applies when the following test is met--
    (1) Age is used as a measure or approximation of one or more other 
characteristics;
    (2) The other characteristic must be measured or approximated in 
order to continue the normal operation of the program or to achieve any 
statutory objective of the program;
    (3) The other characteristic can be reasonably measured or 
approximated by the use of age; and
    (4) The other characteristic is impractical to measure directly on 
an individual basis.
    (c) The question whether an age distinction comes within this 
section depends upon the particular facts, including the nature and 
purpose of the program, the basis for and the nature and purpose of the 
age distinction, and the manner in which the age distinction is used.


Sec. 42.713  Exception; reasonable factors other than age.

    (a) A recipient may take an action, otherwise prohibited by 
Sec. 42.710(a), that affects age groups differently, if such 
differentiation is based upon reasonable factors other than age.
    (b) This exception does not apply to the use of an explicit age 
distinction, but to conduct that has the effect of differentiating 
among age groups. This exception applies when the factor (other than 
age) upon which the recipient's action is based bears a direct and 
substantial relationship to the normal operation of or achievement of a 
statutory objective of the program.


Sec. 42.714  Special benefits.

    If a recipient operating a program provides special benefits to the 
elderly or to children, such use of age distinctions shall be presumed 
to be necessary to the normal operation of the program, notwithstanding 
the provisions of Sec. 42.712.


Sec. 42.715  Burden of proof regarding exceptions.

    The burden of proving that an age distinction or other action falls 
within the exceptions described in Sec. 42.712 and Sec. 42.713 is on 
the recipient. This allocation of the burden of proof applies in 
proceedings by the Department to enforce the Act.


Secs. 42.716-42.719  [Reserved]

Duties of Recipients


Sec. 42.720  General responsibility.

    Regarding any program subject to this subpart, the recipient has 
primary responsibility to ensure compliance with the Act and this 
subpart. The recipient also has responsibility to maintain records, 
provide information, and to afford access to its records to the 
Department to the extent required to determine whether it is in 
compliance with the Act.


Sec. 42.721  Notice to subrecipients.

    Any recipient that receives federal financial assistance from the 
Department and extends such assistance to subrecipients shall give its 
subrecipients written notice of their obligations under this subpart.


Sec. 42.722  Receipient assessment of age distinctions.

    (a) As part of a compliance review under Sec. 42.730 or complaint 
investigation under Sec. 42.731, the Department may require a recipient 
employing the equivalent of 15 or more employees to complete a written 
self-evaluation, in a manner specified by the responsible Department 
official, of any age distinction imposed in its program or activity 
receiving federal financial assistance from the Department to assess 
the recipient's compliance with the Act.
    (b) Whenever a recipient assessment indicates a violation of the 
Act and this subpart, the recipient shall take corrective action.


Sec. 42.723  Compliance information.

    (a) Upon request by the Department, a recipient shall make 
available to the Department information necessary to determine whether 
the recipient is complying with this subpart.
    (b) Each recipient shall permit reasonable access by the Department 
to the recipient's facilities, books, records and other sources of 
information concerning the recipient's compliance with this subpart.


Sec. 42.724  Remedial and affirmative action.

    (a) If the Department finds that, in violation of this subpart, a 
recipient has discriminated on the basis of age, the recipient shall 
take remedial action that the Department considers necessary to 
overcome the effects of the discrimination.
    (b) Even in the absence of a finding of discrimination, a 
recipient, in administering a program, may take steps to overcome the 
effects of conditions that resulted in limited participation on the 
basis of age.


Sec. 42.725  Assurance of compliance.

    Each recipient of federal financial assistance from the Department 
shall sign a written assurance as specified by the Department that it 
will comply with this subpart in its federally assisted programs and 
activities.


Secs. 42.726--42.729  [Reserved]

Compliance Procedures


Sec. 42.730  Compliance reviews.

    The Department may conduct a pre-award or post-award compliance 
review of an applicant or a recipient to determine compliance with this 
subpart. When a compliance review indicates probably noncompliance, the 
Department shall inform the applicant or recipient and shall promptly 
begin enforcement as described in Sec. 42.733.


Sec. 42.731  Complaints.

    (a) General. This section provides for the filing, by aggrieved 
persons, of complaints alleging violation of this subpart. Although the 
complaint process is limited to aggrieved persons, any person who has 
information regarding a possible violation of this subpart may provide 
it to the Department.
    (b) Receipt of complaints. (1) Any aggrieved person, individually 
or as a member of a class, may file with the Department a written 
complaint alleging a violation of this subpart. A complaint may be 
filed by a representative of an aggrieved person. A complaint must be 
filed within 180 days of the date the complaint first knew of the 
alleged violation. However, this time limit may, for good cause shown, 
be extended by the Department.
    (2) The Department shall promptly review each such complaint for 
sufficiency. A complaint will be deemed sufficient if it--
    (i) Describes an action that may constitute a violation of this 
subpart; and
    (ii) Contains information necessary for further processing (i.e., 
identifies the parties involved, states the date when the complainant 
first learned of the alleged violation, and is signed by the 
complainant).
    (3) When a complaint is deemed sufficient, the Department shall 
promptly refer it to the FMCS for mediation.
    (4) When a complaint is deemed insufficient, the Department shall 
advise the complainant of the reasons for that determination. A 
complainant shall be freely permitted to add information necessary for 
further processing.
    (c) Representation of parties. During each stage of the complaint 
process, the complainant and the recipient may be represented by an 
attorney or other representative.
    (d) Assistance from the Department. Any complainant or recipient 
may request from the Department information regarding the complaint 
process.
    (e) Mediation. (1) When a complaint is referred for mediation, the 
complainant and the recipient shall participate in the mediation 
process to the extent necessary either to reach an agreement or to 
enable the mediator to determine that no agreement can be reached. No 
determination that an agreement is not possible shall be made until the 
mediator has conferred at least once, jointly or separately, with each 
of the parties.
    (2) If the complainant and the recipient reach an agreement, they 
shall reduce the agreement to writing and sign it. The mediator shall 
send a copy of the agreement to the Department.
    (3) If, after 60 days after the Department's receipt of a 
complaint, no agreement is reached or if, within that 60-day period, 
the mediator determines that no agreement can be reached, the mediator 
shall return the complaint to the Department.
    (4) The mediator shall protect the confidentiality of information 
obtained during the mediation process. No mediator shall testify in any 
adjudicative proceeding, produce any document, or otherwise disclose 
any information obtained during the mediation process without prior 
approval of the Director of the FMCS.
    (f) Department investigations. The Department shall promptly 
investigate any complaint that is unresolved after mediation or is 
reopened because of violation of a mediation agreement. An 
investigation should include a review of the pertinent actions or 
practices of the recipient and the circumstances under which the 
alleged discrimination occurred. During an investigation the Department 
shall take appropriate steps to obtain informal resolution of the 
complaint.
    (g) Resolution of matters. (1) where, prior to any finding by the 
Department of probable noncompliance with this subpart, discussions 
between the Department and the parties result in settlement of a 
complaint, the Department shall prepare an agreement to be signed by 
the parties and an authorized official of the Department. A settlement 
shall not affect the operation of any other enforcement efforts of the 
Department, including compliance reviews or investigation of other 
complaints involving the recipient.
    (2) If the Department determines that an investigation pursuant to 
paragraph (f) of this section indicates probable noncompliance with 
this subpart, the Department shall inform the recipient and shall 
promptly begin enforcement pursuant to Sec. 42.733.
    (3) If the Department determines that an investigation does not 
indicate probable noncompliance, the Department shall inform the 
recipient and the complainant. The Department shall also inform the 
complainant of his or her right to bring a civil action as described in 
Sec. 42.736.


Sec. 42.732  Prohibition against intimidation.

    A recipient may not intimidate or retaliate against any person who 
attempts to assert a right secured by the Act and this suppart or who 
cooperates in any mediation, investigation, hearing, or other aspect of 
the Department's compliance procedure.


Sec. 42.733  Enforcement procedures.

    (a) Voluntary compliance. When a compliance review or complaint 
investigation results in a finding of probable noncompliance with this 
subpart, the Department shall attempt to obtain voluntary compliance. 
An agreement for voluntary compliance shall describe the corrective 
action to be taken and time limits for such action and shall be signed 
by the recipient and an authorized official of the Department.
    (b) Means of enforcement--(1) General. (i) The Department may seek 
to enforce this subpart--
    (A) By administrative proceedings that may lead to termination or 
refusal of federal financial assistance to the particular program; or
    (B) By any other means authorized by law. Such other means include 
lawsuits by the Department of enjoin violations of this subpart.
    (ii) To the extent consistent with the Act, the Department, in 
enforcing this subpart, shall follow the procedures applicable to 
enforcement of title VI of the Civil Rights Act of 1964.
    (2) Termination of federal financial assistance. With regard to 
enforcement of this subpart through the termination or refusal of 
federal financial assistance, the Department shall follow the 
provisions of its title VI regulation concerning notice (28 CFR 
42.180(c)), hearings (28 CFR 42.109), and decisions (28 CFR 42.110). 
However, with respect to programs receiving federal financial 
assistance from a component of the Department's Office of Justice 
Programs (OJP), the requirement of 28 CFR 42.110(e) that a sanction be 
approved by the Attorney General shall not apply; that function may be 
performed by the Assistant Attorney General, OJP.
    (3) Other means of enforcement. With regard to enforcement of this 
subpart through other means, the Department shall follow the procedures 
of 28 CFR 42.108(d). In addition, at least 30 days before commencing a 
lawsuit or taking other action pursuant to paragraph (b)(1)(i)(A) of 
this section, the Department shall send an appropriate report to the 
committees of the House of Representatives and the Senate having 
legislative jurisdiction over the program involved.
    (c) Deferral. When a proceeding for the termination or refusal or 
federal financial assistance is initiated pursuant to paragraph 
(b)(1)(i)(A) of this section, the Department may defer granting new 
federal financial assistance to the recipient.
    (1) New federal financial assistance includes any assistance for 
which, during the deferral period, the Department requires an 
application or approval, including renewal or continuation of existing 
activities or authorization of new activities. New federal financial 
assistance does not include assistance approved prior to initiation of 
the administrative proceeding or increases in funding as a result of a 
change in the manner of computing formula awards.
    (2) A deferral may not begin until the recipient has received a 
notice of opportunity for a hearing. A deferral may not continue for 
more than 60 days unless a hearing has begun within that time or the 
time for beginning the hearing has been extended by mutual consent of 
the recipient and the Department. A deferral may not continue for more 
than 30 days after the close of the hearing, unless the hearing results 
in a finding against the recipient.


Sec. 42.734  Alternative funding.

    When assistance to a recipient is terminated or refused pursuant to 
Sec. 42.733(b)(1)(i)(A), the Department may disburse the withheld funds 
directly to an alternate recipient serving the same area (i.e., a 
public or nonprofit private organization or agency or state or 
political subdivision of the state). Any such alternate recipient must 
demonstrate the ability to comply with the requirements of this subpart 
and to achieve the goals of the federal statute authorizing the 
assistance.


Sec. 42.735  Judicial review.

    A final decision of the Department in an administrative proceeding 
pursuant to Sec. 42.733(b)(1)(i)(A) is subject to judicial review as 
provided in section 306 of the Act, 42 U.S.C. 6105.


Sec. 42.736  Private lawsuits.

    (a) Upon exhausting administrative remedies under the Act, a 
complainant may file a civil action to enjoin a violation of the Act. 
Administrative remedies are exhausted if--
    (1) 180 days have elapsed since the complainant filed the complaint 
and the Department has made no finding with regard to the complaint; or
    (2) The Department issues a finding, pursuant to Sec. 42.731(g)(3), 
in favor of the recipient.
    (b) Whenever administrative remedies are exhausted in accord with 
paragraph (a) of this section, the Department shall promptly inform the 
complainant that
    (1) The complainant may bring a civil action in a United States 
district court for the district in which the recipient is located or 
transacts business;
    (2) A complainant who prevails in such an action has the right to 
be awarded reasonable attorney's fees, if the complainant demands such 
an award in the complaint initiating the lawsuit;
    (3) Before commencing the action, the complainant must give 30 
days' notice by registered mail to the Secretary, the Attorney General, 
and the recipient;
    (4) The notice must state the nature of the alleged violation, the 
relief requested, the court in which the action will be brought, and 
whether attorney's fees will be demanded; and
    (5) The complainant may not bring an action if the same alleged 
violation by the recipient is the subject of a pending action in any 
court of the United States.


Secs. 42.737-42.799  [Reserved]

Appendix A to Subpart I of Part 42--Federal Financial Assistance 
Administered by the Department of Justice to Which This Subpart 
Applies

    Note: Failure to list a type of federal assistance in Appendix A 
shall not mean, if the Age Discrimination Act is otherwise 
applicable, that a program or activity is not covered. For the text 
of Appendix A to subpart I, see Appendix A to subpart C of this 
part.

Appendix B to Subpart I of Part 42--Age Distinctions in Federal 
Statutes or Regulations Affecting Financial Assistance Administered 
by the Department of Justice

    Section 90.31(f) of HHS' the general regulations (45 CFR Part 
90) requires each federal agency to publish an appendix to its final 
regulation containing a list of age distinctions in federal statutes 
and regulations affecting financial assistance administered by the 
agency. This appendix is the Department's list of federal statutes 
and Department regulations that contain age distinctions that:
    (1) Provide benefits or assistance to persons based upon age; or
    (2) Establish criteria for participation in age-related terms; 
or
    (3) Describe intended beneficiaries or target groups in age-
related terms.
    The Department administers financial assistance under the 
Juvenile Justice and Delinquency Prevention Act of 1974, as amended 
(42 U.S.C. 5601-5672). This statute reflects the basic distinction 
between criminal justice systems for adults and juvenile justice 
systems, and the entire statute is predicated upon making 
distinctions on the basis of age between juveniles and adults. Such 
age distinctions are set forth throughout this statute, including 
provisions establishing programs of financial assistance to juvenile 
justice systems and for purposes related to the prevention of 
juvenile delinquency. The Department's current regulations 
pertaining to formula grants under this statute are set forth at 28 
CFR part 31 (CFDA No. 16.540). In order to implement the statutory 
purposes, these regulations reflect the same age distinctions 
between juveniles and adults as are contained in the statute. The 
same statute also provides for discretionary special emphasis grants 
for which there are program announcements issued (CFDA No. 16.541), 
and this program also necessarily reflects the basic statutory 
distinction based on age.
    The Department is authorized to extend financial assistance 
under the Missing Children's Assistance Act, as amended (42 U.S.C. 
5771-5777). This law is concerned with problems related to missing 
children, and, thus, it contains many age-related references to 
children, including references in connection with the provision of 
financial assistance. Program announcements are issued in connection 
with this program (CFDA No. 16.543).
    The Department is authorized to extend financial assistance 
pursuant to the Omnibus Crime Control and Safe Streets Act of 1968, 
as amended (42 U.S.C. 3701-3797). Among the statutory purposes of 
this law is the provision of grants addressing problems related to 
juvenile delinquency and problems related to crimes committed 
against elderly persons. Accordingly, this law also reflects the 
basic distinction between criminal justice systems for adults and 
juvenile justice systems. This law also singles out elderly persons 
as a special target group to benefit from its programs. The 
Department's regulations concerning block grants authorized under 
this statute are set forth at 28 CFR part 33. These regulations 
reflect the statutory authorizations for such block grants, which 
specifically authorize funds for, among other things, programs 
addressing problems related to juvenile delinquency and programs 
addressing the problem of crimes committed against elderly persons 
(CFDA No. 16.573). Similarly, the statute provides for discretionary 
grants to enhance and complement the block grants (CFDA No. 16.574) 
and has been amended to provide a focus on narcotics control (CFDA 
No. 16.580).
    The Department is authorized to extend financial assistance 
under the Victims of Crime Act of 1984, as amended (42 U.S.C. 10601-
10604). Among other things, in order to qualify for funds under one 
grant program, a state must certify that priority will be given to 
eligible crime victim assistance programs that help victims of 
certain crimes, including child abuse. In addition, among the 
services to victims of crime for which funding is available is 
``short term child care services'' (CFDA Nos. 16.575 and 16.576).
    The Department is authorized to make grants to Native American 
Indian tribes with funds reserved to the Office of Victims of Crime 
under the Victims of Crime act of 1984, as amended (42 U.S.C. 
10601(g)). The primary purpose of the funding is to assist Native 
American Indian tribes with handling child abuse cases, particularly 
child sexual abuse (CFDA No. 16.583).
    The Department is authorized to extend financial assistance to 
state and local authorities for narcotics control under the Anti-
Drug Abuse Act of 1988 (Pub. L. 100-690, 102 Stat. 4181), which 
extends and/or modifies each of the previously noted laws. The 
statute reflects the basic distinction between criminal justice 
systems for adults and juveniles (CFDA Nos. 16.579 and 16.582).

[FR Doc. 94-2535 Filed 2-10-94; 8:45 am]
BILLING CODE 4410-01-M