[Federal Register Volume 63, Number 249 (Tuesday, December 29, 1998)]
[Proposed Rules]
[Pages 71714-71720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-34372]



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Part VI





Department of Labor





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Office of the Secretary



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29 CFR Part 35



Nondiscrimination on the Basis of Age in Programs and Activities 
Receiving Federal Financial Assistance From the Department of Labor; 
Proposed Rule

  Federal Register / Vol. 63, No. 249 / Tuesday, December 29, 1998 / 
Proposed Rules  

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DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 35

RIN 1291-AA21


Nondiscrimination on the Basis of Age in Programs and Activities 
Receiving Federal Financial Assistance From the Department of Labor

AGENCY: Office of the Secretary, Labor.

ACTION: Proposed rule.

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SUMMARY: This proposed rule sets out the Department of Labor (DOL) 
rules for implementing the Age Discrimination Act of 1975, as amended 
(the Act). The Act prohibits discrimination on the basis of age in 
programs and activities receiving Federal financial assistance. The 
Act, which applies to persons of all ages, permits the use of certain 
age distinctions and factors other than age that meet the Act's 
requirements.
    Under the Act and the general, government-wide regulations 
(codified at 45 CFR part 90), all agencies that extend Federal 
financial assistance are required to issue agency-specific regulations 
implementing the Act. Programs and activities that receive Federal 
financial assistance under the Job Training Partnership Act, as amended 
(JTPA), are already expressly subject to the Act through the JTPA 
statutory language and the DOL regulations implementing JTPA that are 
published at 29 CFR part 34. Other DOL recipients have been subject to 
the Act and government-wide regulations since their effective date in 
1979. Accordingly, today's proposed rule does not substantially change 
DOL recipients' existing duty to refrain from discrimination on the 
basis of age. This proposal would fulfill the obligation on DOL to 
issue agency-specific rules under the Act, clarify the responsibilities 
of DOL recipients under the Act, and describe the DOL investigation, 
conciliation, and enforcement procedures to ensure compliance.

DATES: Comments on this proposed rule must be received on or before 
March 1, 1999.

ADDRESSES: Comments on this proposed rule should be sent to Annabelle 
T. Lockhart, Director, Civil Rights Center, Department of Labor, 200 
Constitution Avenue, N.W., Room N-4123, Washington, DC 20210. Brief 
comments (maximum five pages) may be submitted by facsimile machine 
(FAX) to 202/219-5658. Receipt of submissions, whether by mail or FAX 
transmittal, will not be acknowledged; however, the sender may request 
confirmation that a submission has been received, by telephoning the 
Civil Rights Center (CRC) at (202) 219-8927 (VOICE) or (202) 219-6118 
or (800) 326-2577 (TTY/TDD).
    Comments that CRC receives will be available for public inspection 
at DOL during normal business hours. Appropriate aids, such as readers 
or print magnifiers, are available on request to persons needing 
assistance to review the comments. In addition, copies of this proposed 
rule in the alternate formats of large print and electronic file on 
computer disk are available on request. To schedule an appointment to 
review the comments and/or to obtain the proposed rule in an alternate 
format, contact CRC at the telephone and address listed above.

FOR FURTHER INFORMATION CONTACT: Bud West, Senior Policy Advisor, CRC, 
(202) 219-8927 (VOICE) or (202) 219-6118 or (800) 326-2577 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

I. Background Information

    The Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq., which 
Congress enacted as part of amendments to the Older Americans Act (Pub. 
L. 94-135, 89 Stat. 713, 728) prohibits discrimination on the basis of 
age in programs and activities receiving Federal financial assistance. 
The Civil Rights Restoration Act of 1987 (Pub. L. 100-259, 102 Stat. 
28, 31 (1988)) amended the Act and other civil rights statutes to 
define ``program or activity'' to mean all of the operations of 
specified entities, any part of which is extended Federal financial 
assistance. (See 42 U.S.C. 6107(4).)
    The Act applies to discrimination at all age levels. The Act also 
contains specific exceptions that permit the use of certain age 
distinctions and factors other than age that meet the Act's 
requirements.
    The Act required the former Department of Health, Education, and 
Welfare (HEW) to issue general, government-wide regulations setting 
standards to be followed by all Federal agencies implementing the Act. 
These government-wide regulations, which were issued on June 12, 1979 
(45 CFR part 90; 44 FR 33768) and became effective on July 1, 1979, 
require each Federal agency providing financial assistance to any 
program or activity to publish proposed regulations implementing the 
Act, and to submit final agency regulations to HEW (now the Department 
of Health and Human Services (HHS), before publication in the Federal 
Register. (See 45 CFR 90.31.)
    The Act became effective on the effective date of HEW's final 
government-wide regulations (i.e., July 1, 1979). DOL has enforced the 
provisions of the Act since that time. As a practical matter, the 
absence of DOL-specific age regulations has not had an impact on DOL's 
legal authority to enforce prohibitions against discrimination on the 
basis of age in programs or activities receiving Federal financial 
assistance from DOL. For example, persons alleging age discrimination 
have not been hampered in their ability to file complaints or in CRC's 
ability to process these complaints. In addition, most programs and 
activities that receive Federal financial assistance from DOL receive 
some part of that funding under the Job Training Partnership Act, as 
amended (JTPA), 29 U.S.C. 1501 et seq. Such programs and activities are 
therefore ``JTPA recipients'' subject to the broad nondiscrimination 
and equal opportunity provisions in Section 167 of JTPA, 29 U.S.C. 
1577. Among other things, Section 167 of JTPA expressly applies the 
prohibitions against discrimination on the basis of age under the Age 
Discrimination Act of 1975 to JTPA recipients. The regulations 
implementing Section 167 of JTPA are published at 29 CFR part 34 and 
incorporate the Act's prohibition against discrimination on the basis 
of age.

II. Overview of Proposed Rule

    This proposed rule is designed to fulfill the statutory and 
regulatory obligations on DOL to issue a regulation implementing the 
Act that conforms to the government-wide regulations at 45 CFR part 90. 
The proposed rule would carry out the Act's prohibition of 
discrimination based on age in programs and activities receiving 
financial assistance from DOL and would provide appropriate 
investigative, conciliation, and enforcement procedures. DOL 
enforcement would be conducted by the Civil Rights Center (CRC) 
(previously organized as the Directorate of Civil Rights), in the 
Office of the Assistant Secretary for Administration and Management. 
CRC enforces all civil rights laws applicable to entities receiving 
financial assistance from DOL.
    As noted above, the primary effect of this proposed rule is to 
clarify the existing requirements prohibiting age discrimination placed 
on those DOL recipients that receive no financial assistance under 
JTPA. The JTPA statutory language and the DOL regulations implementing 
JTPA at 29 CFR part 34 already expressly subject JTPA recipients to the 
Act's prohibitions on age discrimination.

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    The proposed rule is not intended to alter the legal standards 
found in the Act or the government-wide regulations, which are 
applicable to recipients of Federal financial assistance from DOL, 
whether under JTPA or other statutes. The proposed rule closely follows 
the wording and format of rules issued by other Federal agencies to 
implement the Act. In particular, DOL modeled much of its proposal on 
the regulations issued by HEW's successor agencies: HHS, the lead 
Federal agency coordinating implementation of the Act (45 CFR part 91; 
47 FR 57850, Dec. 28, 1982); and the Department of Education (ED) (34 
CFR part 110; 58 FR 40194, July 27, 1993). The government-wide and 
agency-specific rules were subjected to extensive public scrutiny, and 
the public comments were considered in developing those final rules. 
Readers may review the HEW, HHS and ED Federal Register publications 
for historical and explanatory material regarding the Act, the 
government-wide regulations, and the provisions of the agency-specific 
implementing regulations. The following discussion focuses on the 
sections of today's proposed rule that differ from the government-wide 
regulations. As explained below, these differences are meant to clarify 
provisions, and either mirror other Federal agency-specific regulations 
implementing the Act or address DOL-unique circumstances.

Subpart A--General

    The three sections in Subpart A provide the proposed rule's 
purpose, application and definitions, and are consistent with the 
government-wide regulations. A new provision has been added to 
Sec. 35.2 to indicate that JTPA recipients in compliance with 29 CFR 
part 34 are considered in compliance with this part. This provision 
also makes it clear that CRC will use the legal standards in Subpart B 
of these regulations when evaluating whether a recipient of funds under 
JTPA has engaged in unlawful discrimination under the Act.
    The definitions in Sec. 35.3 are substantively identical to 
definitions in the government-wide regulations (45 CFR 90.4), HHS 
agency-specific regulations (45 CFR 91.4), and ED regulations (34 CFR 
110.3). To provide greater clarity to both recipients of Federal 
financial assistance and the general public, the proposed rule also 
defines the word ``beneficiary,'' based on the existing definition in 
DOL rules implementing JTPA (29 CFR 34.2).

Subpart B--Standards for Determining Age Discrimination

    Subpart B is virtually identical to the corresponding sections of 
the government-wide regulations at 45 CFR part 90. Some of the 
provisions have been reordered for greater clarity and coherence.
    Section 35.10 follows the government-wide regulations in laying out 
the general and specific rules prohibiting age discrimination in 
programs or activities receiving Federal financial assistance from DOL. 
For clarity purposes, proposed paragraph (c) of Sec. 35.10 would 
slightly revise language found in the government-wide regulations at 45 
CFR 90.12(c). Like the government-wide rule, the proposal states that 
the list of prohibited forms of age discrimination in Sec. 35.10(b) is 
not exhaustive and, consequently, does not imply that other forms of 
age discrimination are permitted.
    Sections 35.11 and 35.12 follow the government-wide regulations 
(see 45 CFR 90.13-.14), in defining the terms ``normal operation'' and 
``statutory objective'' and delineating the ``normal operation'' and 
``statutory objective'' exceptions to the prohibitions against age 
discrimination that are specified in the Act, 42 U.S.C. 6103. Section 
35.12 sets out the four-prong test, provided in the government-wide 
regulations (see 45 CFR 90.14), for determining when an action 
reasonably takes into account ``age as a factor necessary to the normal 
operation or the achievement of any statutory objective of a program or 
activity'' and thus does not violate the Act.
    In the proposed rule, provisions concerning affirmative action and 
special benefits to children and elderly are in Subpart B at 
Secs. 35.15 and 35.16; in the government-wide regulations, the 
analogous provisions are part of Subpart D (Investigation, 
Conciliation, and Enforcement Procedures) at 45 CFR 90.49. The HHS 
agency-specific regulations also moved these provisions to Subpart B 
(see 45 CFR 19.16-.17), and DOL believes this reordering aids 
comprehension.
    Section 35.17 of the proposed rule provides that age distinctions 
in DOL regulations are entitled to a presumption of validity. For 
example, the provision in 20 CFR 628.605(a), which limits participation 
in the Adult Program funded under JTPA to individuals who are 22 years 
of age or older, is presumed valid. This presumption of validity is 
consistent with the ``statutory objective'' exception in the Act. 
Analogous provisions are in the HHS and ED agency-specific regulations 
(45 CFR 91.18; 34 CFR part 110.17.)

Subpart C--Duties of DOL Recipients

    Subpart C is consistent with the government-wide regulations at 45 
CFR part 90. As described below, language differences between this 
Subpart of the proposed rule and the government-wide regulations are 
meant to clarify the duties of DOL recipients.
    The proposed rule fosters awareness of the Act's provisions, by 
requiring that recipients provide notice concerning obligations and 
rights under the Act to other recipients and to beneficiaries 
(Sec. 35.21) and that recipients complete a written assurance of 
compliance (Sec. 35.23). The notice requirements in Sec. 35.21 are 
modeled after the HHS provision in 45 CFR 91.32 and the ED provisions 
in 34 CFR 110.21 and 110.25(b). The Sec. 35.23 requirement for 
assurances of compliance is similar to the HHS rule at 45 CFR 91.33(a) 
and the ED rule at 34 CFR 110.23(a). In addition, the regulations 
implementing the nondiscrimination provisions of JTPA already require 
JTPA recipients to make an assurance of compliance with the Age 
Discrimination Act. 29 CFR 34.20.
    Section 35.22 lists recordkeeping, reporting, and access to records 
requirements under the Act. The government-wide regulations already 
require recipients to maintain records, provide information and afford 
access to its records to agencies for the purposes of determining 
whether the recipient is complying with the Act. (See 45 CFR 90.42(a).) 
The government-wide regulations also mandate that agencies include in 
their regulations implementing the Act the requirements that recipients 
provide information and access to records to the extent the agencies 
find necessary to determine compliance with the Act and regulations. 
(See 45 CFR 90.45.) In addition, the regulations implementing the 
nondiscrimination provisions of JTPA already require JTPA recipients to 
collect data, maintain records, and provide access to such information 
and records as CRC finds necessary to determine whether the JTPA 
recipient is complying with the Age Discrimination Act. (See 29 CFR 
34.24.) Proposed Sec. 35.22 follows the format of the analogous HHS 
provision in 45 CFR 91.34.
    The proposed rule also furthers the goals of the Act by requiring 
the recipient to designate at least one employee to be responsible for 
coordinating its compliance activities under the Act and these 
regulations. (See 29 CFR 35.24.) The responsibilities assigned to this 
employee(s) are similar

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to those already required under other civil rights regulations enforced 
by CRC. (See 29 CFR 32.7 (implementing Section 504 of the 
Rehabilitation Act), and 29 CFR 34.22 (implementing JTPA).) The ED 
regulations implementing the Act also require designating a responsible 
employee, 34 CFR 110.25(a). Designating an employee to coordinate 
compliance helps a recipient to ensure that it will carry out its 
responsibilities under the Act and these regulations. This rule would 
not require recipients to designate a separate or additional 
responsible person to comply with these regulations, but would permit 
recipients to assign these duties to their existing person or staff who 
have similar responsibilities under other Federal laws and regulations 
enforced by CRC. Furthermore, the proposed rule would not require that 
recipients establish a full-time position responsible solely for 
ensuring compliance with this part. The duties described in this 
section could be performed by an individual (or individuals) who are 
assigned other duties.
    Section 35.25 would require the recipient to establish a recipient-
level procedure for processing complaints that allege a violation of 
the Act or these regulations. The ED rules contain a similar provision 
at 34 CFR 110.25(c). This provision would provide both recipients and 
complainants the opportunity to resolve disputes at the recipient 
level. No specific process, however, would be mandated by this 
regulation. For instance, recipients may adopt the complaint processing 
procedures contained in the DOL regulations implementing the 
nondiscrimination provisions of the JTPA. (See 29 CFR part 34.)
    Section 35.26 of this proposed rule provides that CRC may require a 
recipient employing the equivalent of 15 or more employees to complete 
a written self-evaluation as part of a compliance review or complaint 
investigation. The government-wide regulations at 45 CFR 90.43 contain 
the requirement that all recipients with the equivalent of 15 or more 
full-time employees must complete a written self-evaluation of their 
compliance under the Act. However, the Office of Management and Budget 
(OMB) subsequently disapproved of this across-the-board self-evaluation 
requirement as excessively burdensome and inconsistent with the Federal 
Reports Act of 1942, the precursor of the Paperwork Reduction Act, as 
amended (44 U.S.C. 3501 et seq.). Correspondingly, HHS and other 
Federal agencies have rejected imposing self-evaluation requirements on 
all recipients and instead state in their agency-specific regulations 
that such evaluations will only be required as part of a compliance 
review or complaint investigation. (See 34 CFR 110.24; 45 CFR 91.33.) 
The OMB and HHS determinations to impose self-evaluation requirements 
only when there is an ongoing compliance review or complaint inspection 
has been upheld by the courts. See, e.g., Action Alliance of Senior 
Citizens of Greater Philadelphia v. Sullivan, 930 F.2d 77 (D.C. Cir.), 
cert. denied, 502 U.S. 938 (1991). Accordingly, the DOL proposal abides 
by the OMB determination and closely follows the age discrimination 
regulations of the other Federal agencies.

Subpart D--Investigation, Conciliation, and Enforcement Procedures

    In accordance with the government-wide regulations, Subpart D 
describes procedures for compliance reviews and Federal-level complaint 
processing, and outlines the role of mediation in resolving complaints. 
This Subpart closely follows the HHS and ED age regulations, adopting 
minor stylistic and organizational changes that DOL believes will 
improve clarity.
    Section 35.34 would incorporate the HHS agency-specific regulation 
published at 45 CFR 91.44(a)(4). This section would provide that 
settlements during the agency investigation process will not affect the 
operation of any other enforcement effort by the agency, such as 
compliance reviews and investigations of other complaints, including 
those against the same recipient. In addition, Sec. 35.34 clarifies 
that agreements made during mediation also do not affect other 
enforcement efforts.
    Section 35.37 would provide that the procedures applicable to 
enforcement of Title VI of the Civil Rights Act of 1964, as amended, 
published at 29 CFR 31.9 and 31.10 apply to CRC's enforcement of the 
Act and this part. These procedures have been incorporated into the 
Department's regulation implementing Section 504 of the Rehabilitation 
Act of 1973, as amended (29 CFR part 32), and are incorporated here for 
consistency.
    Section 35.38 of the proposed rule describes procedures for 
disbursal of funds to an alternate recipient if funds are withheld from 
the original recipient because of violations of these rules. Section 
35.38 is not intended to replace established grant-awarding procedures. 
The requirements listed in Sec. 35.38(b) would be in addition to any 
requirements contained in other applicable Federal laws or regulations.

III. Regulatory Procedures

Executive Order 12866

    This proposed rule is not a ``significant regulatory action'' under 
Executive Order 12866 because this action will not: (1) Have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local or, tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in Executive Order 12866. Therefore, no 
regulatory impact analysis has been prepared.

Unfunded Mandates Reform

    Executive Order 12875--This proposed rule, if promulgated in final, 
will not create an unfunded Federal mandate on any State, local or 
tribal government.
    Unfunded Mandates Reform Act of 1995--This proposed rule, if 
promulgated in final, will not include any Federal mandate that may 
result in increased expenditures by State, local and tribal 
governments, in the aggregate, of $100 million or more, or increased 
expenditures by the private sector of $100 million or more.

Regulatory Flexibility Act

    The proposed rule, if promulgated in final, will clarify existing 
requirements for entities receiving financial assistance from DOL. The 
requirements prohibiting age discrimination by recipients of Federal 
financial assistance that are in the Act and the government-wide 
regulations have been in effect since 1979. In addition, entities 
receiving financial assistance from DOL under JTPA, have been expressly 
informed of their obligations to comply with the Act by both JTPA 
statutory language and by the DOL regulations implementing JTPA. 
Because the proposed rule does not substantively change existing 
obligations on recipients, but merely clarifies such duties, the 
Department certifies that the proposed rule will not have a significant 
economic impact on a substantial number of small entities. 
Consequently, a regulatory flexibility analysis is not required.

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Paperwork Reduction Act

    This proposed rule will not impose new information collection 
requirements subject to the Paperwork Reduction Act.

List of Subjects in 29 CFR Part 35

    Administrative practice and procedure, Age discrimination, 
Children, Civil rights, Elderly, Grant programs--Labor.

    Signed at Washington, D.C. this 22nd day of December 1998.
Alexis M. Herman,
Secretary of Labor.

    For the reasons set out in the preamble, 29 CFR subtitle A is 
proposed to be amended by adding a new part 35 to read as follows:

PART 35--NONDISCRIMINATION ON THE BASIS OF AGE IN PROGRAMS AND 
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE FROM THE 
DEPARTMENT OF LABOR

Subpart A--General

Sec.
35.1  What is the purpose of the Department of Labor (DOL) age 
discrimination regulations?
35.2  To what programs and activities do these regulations apply?
35.3  What definitions apply to these regulations?

Subpart B--Standards for Determining Age Discrimination

35.10  Rules against age discrimination.
35.11  Definitions of the terms ``normal operation'' and ``statutory 
objective.''
35.12  Exceptions to the rules against age discrimination: normal 
operation or statutory objective of any program or activity.
35.13  Exceptions to the rules against age discrimination: 
reasonable factors other than age.
35.14  Burden of proof.
35.15  Affirmative action by a recipient.
35.16  Special benefits for children and the elderly.
35.17  Age distinctions in DOL regulations.

Subpart C--Duties of DOL Recipients

35.20  General responsibilities.
35.21  Recipient responsibility to provide notice.
35.22  Information requirements.
35.23  Assurances required.
35.24  Designation of responsible employee.
35.25  Complaint procedures.
35.26  Recipient assessment of age distinctions.

Subpart D--Investigation, Conciliation, and Enforcement Procedures

35.30  Compliance reviews.
35.31  Complaints.
35.32  Mediation.
35.33  Investigations.
35.34  Effect of agreements on enforcement effort.
35.35  Prohibition against intimidation or retaliation.
35.36  Enforcement.
35.37  Hearings, decisions, and post-termination proceedings.
35.38  Procedure for disbursal of funds to an alternate recipient.
35.39  Remedial action by recipient.
35.40  Exhaustion of administrative remedies.

    Authority: 42 U.S.C. 6101 et. seq; 45 CFR part 90.

Subpart A--General


Sec. 35.1  What is the purpose of the Department of Labor (DOL) age 
discrimination regulations?

    The purpose of this part is to set out the DOL rules for 
implementing the Age Discrimination Act of 1975, as amended. The Act 
prohibits discrimination on the basis of age by recipients of Federal 
financial assistance and in federally assisted programs and activities, 
but permits the use of certain age distinctions and factors other than 
age that meet the requirements of the Act and this part.


Sec. 35.2  To what programs and activities do these regulations apply?

    (a) Application. This part applies to any program or activity that 
receives Federal financial assistance, directly or indirectly, from 
DOL.
    (b) Compliance with 29 CFR part 34. Compliance with Section 167 of 
the Job Training Partnership Act, as amended (JTPA) (29 U.S.C. 1577) 
and implementing regulations at 29 CFR part 34, shall satisfy the 
obligation of recipients of Federal financial assistance from DOL under 
JTPA to comply with this part. CRC will use the legal standards in 
Subpart B of this part when evaluating whether a JTPA recipient has 
engaged in unlawful age discrimination.
    (c) Limitation of application. This part does not apply to:
    (1) An age distinction contained in that part of a Federal, State, 
or local statute or ordinance adopted by an elected, general purpose 
legislative body that:
    (i) Provides persons with any benefits or assistance based on age;
    (ii) Establishes criteria for participation in age-related terms; 
or
    (iii) Describes intended beneficiaries or target groups in age-
related terms; or
    (2) Any employment practice of any employer, employment agency, 
labor organization, or any labor-management joint apprentice training 
program, except any program or activity receiving Federal financial 
assistance under JTPA (29 U.S.C. 1501 et seq.).


Sec. 35.3  What definitions apply to these regulations?

    As used in this part:
    Act means the Age Discrimination Act of 1975, as amended (42 U.S.C. 
6101 et seq.).
    Action means any act, activity, policy, rule, standard, or method 
of administration, or the use of any policy, rule, standard, or method 
of administration.
    Age means how old a person is, or the number of years from the date 
of a person's birth.
    Age distinction means any action using age or an age-related term.
    Age-related term means a word or words that necessarily imply a 
particular age or range of ages (e.g., ``child,'' ``adults,'' ``older 
persons,'' but not ``student'').
    Applicant for Federal financial assistance means the individual or 
entity submitting an application, request, or plan required to be 
approved by a DOL official or recipient as a condition to becoming a 
recipient or subrecipient.
    Beneficiary means the person(s) intended by Congress to receive 
benefits or services from a recipient of Federal financial assistance 
from DOL.
    CRC means the Civil Rights Center, Office of the Assistant 
Secretary for Administation and Management, United States Department of 
Labor.
    Department means the United States Department of Labor.
    Director means the Director of CRC.
    DOL means the United States Department of Labor.
    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 
DOL provides or otherwise makes available assistance in the form of:
    (1) Funds;
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use of 
property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of property if 
the Federal share of its fair market value is not returned to the 
Federal Government.
    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 from DOL is extended, 
directly or through another recipient, but excludes the ultimate

[[Page 71718]]

beneficiary of the assistance. Recipient includes any subrecipient to 
which a recipient extends or passes on Federal financial assistance, 
and any successor, assignee, or transferee of a recipient.
    Secretary means the Secretary of Labor, or his or her designee.
    State means the individual States of the United States, the 
Commonwealth of Puerto Rico, the District of Columbia, Guam, the Virgin 
Islands, American Samoa, Wake Island and the Commonwealth of the 
Northern Mariana Islands.

Subpart B--Standards for Determining Age Discrimination


Sec. 35.10  Rules against age discrimination.

    The rules stated in this section are subject to the exceptions 
contained in Secs. 35.12 and 35.13.
    (a) General rule. No person in the United States shall be, on the 
basis of age, excluded from participation in, denied the benefits of or 
subjected to discrimination under, any program or activity receiving 
Federal financial assistance from DOL.
    (b) Specific rules. A recipient may not, directly or through 
contractual, licensing, or other arrangements, use age distinctions or 
take any other actions that have the effect of, on the basis of age:
    (1) Excluding individuals from, denying them the benefits of, or 
subjecting them to discrimination under, a program or activity 
receiving Federal financial assistance from DOL; or
    (2) Denying or limiting individuals in their opportunity to 
participate in any program or activity receiving Federal financial 
assistance from DOL.
    (c) Other forms of age discrimination. The listing of specific 
forms of age discrimination in paragraph (b) of this section is not 
exhaustive and does not imply that any other form of age discrimination 
is permitted.


Sec. 35.11  Definitions of the terms ``normal operation'' and 
``statutory objective.''

    As used in this part, the term:
    (a) Normal operation means the operation of a program or activity 
without significant changes that would impair the ability of the 
program or activity to meet its objectives.
    (b) Statutory objective means any purpose of a program or activity 
expressly stated in any Federal statute, State statute, or local 
statute or ordinance adopted by an elected, general purpose legislative 
body.


Sec. 35.12  Exceptions to the rules against age discrimination: normal 
operation or statutory objective of any program or activity.

    A recipient is permitted to take an action otherwise prohibited by 
Sec. 35.10 if the action reasonably takes age into account as a factor 
necessary to the normal operation or the achievement of any statutory 
objective of a program or activity. An action reasonably takes age into 
account as a factor necessary to the normal operation or the 
achievement of any statutory objective of a program or activity if:
    (a) Age is used as a measure or approximation of one or more other 
characteristics;
    (b) The other characteristic(s) must be measured or approximated in 
order for the normal operation of the program or activity to continue, 
or to achieve any statutory objective of the program or activity;
    (c) The other characteristic(s) can reasonably be measured or 
approximated by the use of age; and
    (d) The other characteristic(s) are impractical to measure directly 
on an individual basis.


Sec. 35.13  Exceptions to the rules against age discrimination: 
reasonable factors other than age.

    A recipient is permitted to take an action otherwise prohibited by 
Sec. 35.10, if that action is based on a reasonable factor other than 
age, even though the action may have a disproportionate effect on 
persons of different ages. An action is based on a reasonable factor 
other than age only if the factor bears a direct and substantial 
relationship to the normal operation of the program or activity or to 
the achievement of a statutory objective.


Sec. 35.14  Burden of proof.

    The recipient has the burden of proving that an age distinction or 
other action falls within the exceptions outlined in Secs. 35.12 and 
35.13.


Sec. 35.15  Affirmative action by a recipient.

    Even in the absence of a finding of discrimination, a recipient may 
take affirmative action to overcome the effects of conditions that 
resulted in limited participation on the basis of age in the 
recipient's program or activity.


Sec. 35.16  Special benefits for children and the elderly.

    If a recipient is operating a program or activity that provides 
special benefits to the elderly or to children, the use of such age 
distinctions is presumed to be necessary to the normal operation of the 
program, notwithstanding the provisions of Sec. 35.12.


Sec. 35.17  Age distinctions in DOL regulations.

    Any age distinction in regulations issued by DOL is presumed to be 
necessary to the achievement of a statutory objective of the program to 
which the regulations apply, notwithstanding the provisions of 
Sec. 35.12.

Subpart C--Duties of DOL Recipients


Sec. 35.20  General responsibilities.

    Each DOL recipient has primary responsibility for ensuring that its 
programs and activities are in compliance with the Act and this part 
and for taking appropriate steps to correct any violations of the Act 
or this part.


Sec. 35.21  Recipient responsibility to provide notice.

    (a) Notice to other recipients. Where a recipient of Federal 
financial assistance from DOL passes on funds to other recipients, that 
recipient shall notify such other recipients of their obligations under 
the Act and this part.
    (b) Notice to beneficiaries. A recipient shall notify its 
beneficiaries about the provisions of the Act and this part and their 
applicability to specific programs. The notification must also identify 
the responsible employee designated under Sec. 35.24 by name or title, 
address, and telephone number.


Sec. 35.22  Information requirements.

    Each recipient shall:
    (a) Keep such records as CRC determines are necessary to ascertain 
whether the recipient is complying with the Act and this part;
    (b) Upon request, provide CRC with such information and reports as 
the Director determines are necessary to ascertain whether the 
recipient is complying with the Act and this part; and
    (c) Permit reasonable access by CRC to books, records, accounts, 
reports, other recipient facilities and other sources of information to 
the extent CRC determines is necessary to ascertain whether the 
recipient is complying with the Act and this part.


Sec. 35.23  Assurances required.

    A recipient or applicant for Federal financial assistance from DOL 
shall sign a written assurance, in a form specified by DOL, that the 
program or activity will be operated in compliance with the Act and 
this part. In subsequent applications to DOL, an applicant may 
incorporate this assurance by reference.

[[Page 71719]]

Sec. 35.24  Designation of responsible employee.

    Each recipient shall designate at least one employee to coordinate 
its compliance activities under the Act and this part, including 
investigation of any complaints that the recipient receives alleging 
any actions that are prohibited by the Act or this part.


Sec. 35.25  Complaint procedures.

    Each recipient shall adopt and publish complaint procedures 
providing for prompt and equitable resolution of complaints alleging 
any action that would be prohibited by the Act or this part.


Sec. 35.26  Recipient assessment of age distinctions.

    (a) In order to assess a recipient's compliance with the Act and 
this part, as part of a compliance review or a complaint investigation 
conducted under Secs. 35.30 or 35.31, or a compliance review, 
monitoring review or complaint investigation conducted under 29 CFR 
part 34, CRC may require a recipient employing the equivalent of 15 or 
more full-time employees to complete a written self-evaluation, in a 
manner specified by CRC, of any age distinction imposed in its program 
or activity receiving Federal financial assistance from DOL.
    (b) Whenever such an assessment indicates a violation of the Act or 
this part, the recipient shall take prompt and appropriate corrective 
action.

Subpart D--Investigation, Conciliation, and Enforcement Procedures


Sec. 35.30  Compliance reviews.

    (a) CRC may conduct such compliance reviews, pre-award reviews, and 
other similar procedures as permit CRC to investigate and correct 
violations of the Act and this part, irrespective of whether a 
complaint has been filed against a recipient. Such reviews may be as 
comprehensive as necessary to determine whether a violation of the Act 
or this part has occurred.
    (b) Where a review conducted pursuant to paragraph (a) of this 
section indicates a violation of the Act or this part, CRC will attempt 
to achieve voluntary compliance. If voluntary compliance cannot be 
achieved, CRC will begin enforcement proceedings, as described in 
Sec. 35.36.


Sec. 35.31  Complaints.

    (a) Who may file. Any person, whether individually, as a member of 
a class, or on behalf of others, may file a complaint with CRC alleging 
discrimination in violation of the Act or these regulations, based on 
an action occurring on or after July 1, 1979.
    (b) When to file. A complainant must file a complaint within 180 
days from the date the complainant first had knowledge of the alleged 
act of discrimination. The Director may extend this time limit for good 
cause shown.
    (c) Complaint procedure. A complaint is considered to be complete 
on the date CRC receives all the information necessary to process it, 
as provided in paragraph (c)(1) of this section. CRC will:
    (1) Accept as a complete complaint any written statement that 
identifies the parties involved and the date the complainant first had 
knowledge of the alleged violation, describes generally the action or 
practice complained of, and is signed by the complainant;
    (2) Freely permit a complainant to add information to the complaint 
to meet the requirements of a complete complaint;
    (3) Notify the complainant and the recipient of their rights and 
obligations under the complaint procedure, including the right to have 
a representative at all stages of the complaint procedure; and
    (4) Notify the complainant and the recipient (or their 
representatives) of their right to contact CRC for information and 
assistance regarding the complaint resolution process.
    (d) No jurisdiction. CRC will return to the complainant any 
complaint outside the jurisdiction of this part, with a statement 
indicating why there is no jurisdiction.


Sec. 35.32  Mediation.

    (a) Referral to mediation. CRC will promptly refer to the Federal 
Mediation and Conciliation Service or the mediation agency designated 
by the Secretary of Health and Human Services under 45 CFR part 90, all 
complaints that:
    (1) Fall within the jurisdiction of the Act or this part, unless 
the age distinction complained of is clearly within an exemption under 
Sec. 35.2(c); and
    (2) Contain all information necessary for further processing, as 
provided in Sec. 35.31(c)(1).
    (b) Participation in mediation process. Both the complainant and 
the recipient shall participate in the mediation process to the extent 
necessary to reach an agreement or to make an informed judgment that an 
agreement is not possible. The recipient and the complainant do not 
need to meet with the mediator at the same time, and a meeting may be 
conducted by telephone or other means of effective dialogue if a 
personal meeting between the party and the mediator is impractical.
    (c) When agreement is reached. If the complainant and the recipient 
reach an agreement, the mediator shall prepare a written statement of 
the agreement, have the complainant and recipient sign it, and send a 
copy of the agreement to CRC.
    (d) Confidentiality. The mediator shall protect the confidentiality 
of all information obtained in the course of the mediation process. No 
mediator may testify in any adjudicative proceeding, produce any 
document, or otherwise disclose any information obtained in the course 
of the mediation process, unless the mediator has obtained prior 
approval of the head of the mediation agency.
    (e) Maximum time period for mediation. The mediation shall proceed 
for a maximum of 60 days after a complaint is filed with CRC. This 60-
day period may be extended by the mediator, with the concurrence of the 
Director, for not more than 30 days, if the mediator determines that 
agreement is likely to be reached during the extended period. In the 
absence of such an extension, mediation ends if:
    (1) 60 days elapse from the time the complaint is filed; or
    (2) Prior to the end of the 60-day period, either
    (i) An agreement is reached; or
    (ii) The mediator determines that agreement cannot be reached.
    (f) Unresolved complaints. The mediator shall return unresolved 
complaints to CRC.


Sec. 35.33  Investigations.

    (a) Initial investigation. CRC will investigate complaints that are 
unresolved after mediation or reopened because the mediation agreement 
has been violated.
    (1) As part of the initial investigation, CRC will use informal 
fact-finding methods, including joint or separate discussions with the 
complainant and recipient to establish the facts and, if possible, 
resolve the complaint to the mutual satisfaction of the parties. CRC 
may seek the assistance of any involved State, local, or other Federal 
program agency.
    (2) Where agreement between the parties has been reached pursuant 
to paragraph (a)(1) of this section, the agreement shall be put in 
writing by DOL, and signed by the parties and an authorized official of 
DOL.
    (b) Formal findings, conciliation, and hearing. If CRC cannot 
resolve the complaint during the early stages of the investigation, CRC 
will complete the

[[Page 71720]]

investigation of the complaint and make formal findings. If the 
investigation indicates a violation of the Act or this part, CRC will 
attempt to achieve voluntary compliance. If CRC cannot obtain voluntary 
compliance, CRC will begin appropriate enforcement action, as provided 
in Sec. 35.36.


Sec. 35.34  Effect of agreements on enforcement effort.

    An agreement reached pursuant to either Sec. 35.32(c) or 
Sec. 35.33(a) shall have no affect on the operation of any other 
enforcement effort of DOL, such as compliance reviews and 
investigations of other complaints, including those against the 
recipient.


Sec. 35.35  Prohibition against intimidation or retaliation.

    A recipient may not engage in acts of intimidation or retaliation 
against any person who:
    (a) Attempts to assert a right protected by the Act or this part; 
or
    (b) Cooperates in any mediation, investigation, hearing or other 
part of CRC's investigation, conciliation, and enforcement process.


Sec. 35.36  Enforcement.

    (a) DOL may enforce the Act and this part through:
    (1) Termination of, or refusal to grant or continue, a recipient's 
Federal financial assistance from DOL under the program or activity in 
which the recipient has violated the Act or this part. Such enforcement 
action may be taken only after a recipient has had an opportunity for a 
hearing on the record before an administrative law judge.
    (2) Any other means authorized by law, including, but not limited 
to:
    (i) Referral to the Department of Justice for proceedings to 
enforce any rights of the United States or obligation of the recipient 
created by the Act or this part; or
    (ii) Use of any requirement of, or referral to, any Federal, State, 
or local government agency that will have the effect of correcting a 
violation of the Act or this part.
    (b) Any termination or refusal under paragraph (a)(1) of this 
section will be limited to the particular recipient and to the 
particular program or activity found to be in violation of the Act or 
this part. A finding with respect to a program or activity that does 
not receive Federal financial assistance from DOL will not form any 
part of the basis for termination or refusal.
    (c) No action may be taken under paragraph (a) of this section 
until:
    (1) DOL has advised the recipient of its failure to comply with the 
Act or with this part and has determined that voluntary compliance 
cannot be obtained; and
    (2) Thirty days have elapsed since DOL sent a written report of the 
circumstances and grounds of the action to the committees of Congress 
having jurisdiction over the program or activity involved.
    (d) Deferral. DOL may defer granting new Federal financial 
assistance to a recipient when proceedings under paragraph (a)(1) of 
this section are initiated.
    (1) New Federal financial assistance from DOL includes all 
assistance for which DOL requires an application or approval, including 
renewal or continuation of existing activities, or authorization of new 
activities, during the deferral period. New Federal financial 
assistance from DOL does not include increases in funding as a result 
of changed computation of formula awards or assistance approved prior 
to the initiation of a hearing under paragraph (a)(1) of this section.
    (2) DOL may not defer a grant until the recipient has received 
notice of an opportunity for a hearing under paragraph (a)(1) of this 
section. A deferral may not continue for more than 60 days unless a 
hearing has begun within the 60-day period or the recipient and DOL 
have mutually agreed to extend the time for beginning the hearing. If 
the hearing does not result in a finding against the recipient, the 
deferral may not continue for more than 30 days after the close of the 
hearing.


Sec. 35.37  Hearings, decisions, and post-termination proceedings.

    The provisions applicable to enforcement procedures under 
regulations effectuating Title VI of the Civil Rights Act of 1964, as 
amended, found at 29 CFR 31.9 and 34.10, apply to CRC's enforcement of 
the Act and this part.


Sec. 35.38  Procedure for disbursal of funds to an alternate recipient.

    (a) If funds are withheld from a recipient under this part, the 
Secretary may disburse the funds withheld directly to an alternate 
recipient.
    (b) The Secretary will require any alternate recipient to 
demonstrate:
    (1) The ability to comply with the Act and this part; and
    (2) The ability to achieve the goals of the Federal statute 
authorizing the program or activity.


Sec. 35.39  Remedial action by recipient.

    Where CRC finds discrimination on the basis of age in violation of 
this Act or this part, the recipient shall take any remedial action 
that CRC deems necessary to overcome the effects of the discrimination. 
In addition, if a recipient funds or otherwise exercises control over 
another recipient that has discriminated, both recipients may be 
required to take remedial action.


Sec. 35.40  Exhaustion of administrative remedies.

    (a) A complainant may file a civil action under the Act following 
the exhaustion of administrative remedies. Administrative remedies are 
exhausted if:
    (1) One hundred eighty days have elapsed since the complainant 
filed the complainant with CRC, and CRC has made no finding with regard 
to the complaint; or
    (2) CRC issues any finding in favor of the recipient.
    (b) If CRC fails to make a finding within 180 days, or issues a 
finding in favor of the recipient, CRC will promptly:
    (1) So notify the complainant;
    (2) Advise the complaint of his or her right to bring a civil 
action for injunctive relief; and
    (3) Inform the complainant that--
    (i) The complainant may bring a civil action only in a United 
States district court for the district in which the recipient is found 
or transacts business;
    (ii) A complainant who prevails in a civil action has the right to 
be awarded the costs of the action, including reasonable attorney's 
fees, but that the complainant must demand these costs in the complaint 
filed with the court;
    (iii) Before commencing the action, the complainant must give 30 
days notice by registered mail to the Secretary, the Secretary of 
Health and Human Services, the Attorney General of the United States, 
and the recipient;
    (iv) The notice required by paragraph (b)(3)(iii) of this section 
must state the alleged violation of the Act, the relief requested, the 
court in which the complainant is bringing the action, and whether or 
not attorney's fees are demanded in the event that the complainant 
prevails; and
    (v) The complainant may not bring an action if the same alleged 
violation of the Act by the same recipient is the subject of a pending 
action in any court of the United States.

[FR Doc. 98-34372 Filed 12-28-98; 8:45 am]
BILLING CODE 4510-23-P