[Federal Register Volume 67, Number 111 (Monday, June 10, 2002)]
[Proposed Rules]
[Pages 39830-39836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-14458]



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Part III





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 or Activities 
Receiving Federal Financial Assistance From the Department of Labor; 
Proposed Rule

  Federal Register / Vol. 67 , No. 111 / Monday, June 10, 2002 / 
Proposed Rules  

[[Page 39830]]


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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 or Activities 
Receiving Federal Financial Assistance From the Department of Labor

AGENCY: Office of the Secretary, Labor.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This Notice of Proposed Rulemaking (NPRM) sets out the 
Department of Labor (DOL) rules for implementing the Age Discrimination 
Act of 1975, as amended (the Age Act). The Age Act prohibits 
discrimination on the basis of age in programs or activities receiving 
Federal financial assistance. This NPRM is a republication of an NPRM 
published on December 29, 1998 (63 FR 71714). DOL is republishing the 
NPRM for two reasons: To reflect the passage of the Workforce 
Investment Act of 1998 (WIA), which replaced the Job Training 
Partnership Act, as amended, and the publication of an interim final 
rule implementing the nondiscrimination and equal opportunity 
provisions of WIA; and to add the term ``program or activity'' as it is 
defined by the Civil Rights Restoration Act of 1987 (CRRA), and modify 
language in DOL's Age Act rule to accommodate that term and definition. 
These changes do not alter the substance of the December 29, 1998, 
NPRM.

DATES: Comments must be received by August 9, 2002.

ADDRESSES: Address all comments about this proposed rule to Annabelle 
T. Lockhart, Director, Civil Rights Center (CRC), Frances Perkins 
Building, 200 Constitution Ave., NW., Room N-4123, Washington, DC 
20210. Brief comments (maximum five pages) may be submitted by 
facsimile machine (FAX) to 202/693-6505. Receipt of submissions, 
whether by mail or by 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) 693-
6500 (VOICE) or (202) 693-6515 or (800) 326-2577 (TTY/TDD).
    Comments that CRC receives will be available for public inspection 
at DOL during normal business hours. Appropriate aids are available on 
request to persons needing assistance to review the comments. In 
addition, copies of this proposed rule are available, upon request, in 
large print and electronic file on computer disk. Other formats will be 
considered upon 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 number or address listed above.

FOR FURTHER INFORMATION CONTACT: Annabelle T. Lockhart, Director, CRC, 
(202) 693-6500 (VOICE) or (202) 693-6515 (TTY).

SUPPLEMENTARY INFORMATION:   

I. Background Information

    The Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq., 
prohibits discrimination on the basis of age in programs or activities 
receiving Federal financial assistance. The Age Act applies to 
discrimination at all age levels. The Age Act also contains specific 
exceptions that permit the use of certain age distinctions and factors 
other than age that meet the Age Act's requirements. The Age 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 Age 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 final regulations implementing the Age 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 Age Act became effective on the effective date of HEW's final 
government-wide regulations (i.e., July 1, 1979). The Department of 
Labor (DOL) has enforced the provisions of the Age 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. Most financial 
assistance from DOL is distributed under the Workforce Investment Act 
of 1998 (29 USC 2801 et seq.) and its predecessor statutes (the 
Comprehensive Employment and Training Act (Pub. L. 93-203, Pub. L. 93-
567) and the Job Training Partnership Act (29 U.S.C. 794)). Since 1979 
discrimination based on age has been prohibited in these programs, and 
regulatory enforcement mechanisms have existed under them.

II. Rulemaking History

    On December 29, 1998, DOL published a Notice of Proposed Rulemaking 
(NPRM) to implement the Age Act. See 63 FR 71714 (1998). The 60-day 
notice and comment period for the submission of comments to DOL ended 
March 1, 1999. No comments were received by DOL regarding the December 
29, 1998, proposal. DOL then intended to publish a final age rule at 
that juncture. However, since December 29, 1998, two events have 
brought about the need to republish this rule as a NPRM.
    The first was the passage of the Workforce Investment Act of 1998 
(WIA). On July 1, 2000, the WIA replaced the Job Training Partnership 
Act, as amended, (JTPA) as the major instrument for DOL-assisted 
education, training and employment programs. The December, 1998, NPRM 
made several references to JTPA and its implementing regulations, found 
at Title 29 CFR part 34. The regulation being proposed today makes 
reference to the nondiscrimination and equal opportunity provisions of 
WIA (section 188) and the regulations implementing section 188. On 
November 12, 1999, DOL published an interim final rule (IFR) 
implementing section 188. This IFR was published at 29 CFR part 37. See 
64 FR 61692 (1999).
    The second reason for the republication of the December, 1998, NPRM 
is to conform the rule to certain statutory amendments to the Age Act 
made by the Civil Rights Restoration Act of 1987 (Pub. L. 100-
259)(CRRA). The principal proposed conforming change is to add the 
definition of ``program or activity'' that corresponds to the statutory 
definition enacted under the CRRA.
    The Department's financial-assistance based civil rights 
regulations (e.g., Title VI of the Civil Rights Act of 1964, and 
Section 504 of the Rehabilitation Act of 1973), when originally issued 
and implemented, were interpreted by DOL to mean that acceptance of 
Federal assistance by an entity resulted in broad institutional 
coverage. In Grove City College v. Bell, 465 U.S. 555, 571-72 (1984) 
(Grove City College), the Supreme Court held, in a case involving Title 
IX of the Education Amendments of 1972 (Title IX), that the provision 
of Federal student financial assistance to a college resulted in 
Federal jurisdiction to ensure Title IX compliance in the specific 
program receiving the assistance, i.e., the student financial aid 
office, but that the Federal student financial assistance would not 
provide jurisdiction over the entire institution.

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Following the Supreme Court's decision in Grove City College, DOL 
changed its interpretation, but not the language of the governing Title 
VI and Section 504 regulations, to be consistent with the Court's 
restrictive, ``program specific'' definition of ``program or 
activity.'' Since Title IX was patterned after Title VI, Grove City 
College significantly narrowed the coverage of Title VI and the two 
other statutes based on it: Section 504 and the Age Act. See S. Rep. 
No. 100-64, at 2-3, 11-16 (1987).
    In 1988, the CRRA was enacted to ``restore the prior consistent and 
longstanding executive branch interpretation and broad, institution-
wide application of those laws as previously administered.'' 20 U.S.C. 
1687 note 1. Congress enacted the CRRA in order to remedy what it 
perceived to be a serious narrowing by the Supreme Court of a 
longstanding administrative interpretation of the coverage of the 
regulations. At that time, DOL reinstated its broad interpretation to 
be consistent with the CRRA, again without changing the language of the 
regulations. It was and remains DOL's consistent interpretation that, 
with regard to the differences between the interpretation of the 
regulations given by the Supreme Court in Grove City College, and the 
language of the CRRA, the CRRA, which took effect upon enactment, 
supersedes the Grove City College decision and, therefore, the 
regulations must be read in conformity with the CRRA in all their 
applications.
    This interpretation reflects the understanding of Congress, as 
expressed in the legislative history of the CRRA, that the statutory 
definition of ``program or activity'' would take effect immediately, by 
its own force, without the need for Federal agencies to amend their 
existing regulations. S. Rep. No. 100-64, at 32. The legislative 
history also evidences congressional concern about the Federal 
agencies' immediate need to address complaints and findings of 
discrimination in federally assisted schools under the CRRA definition 
of ``program or activity,'' and includes examples demonstrating why the 
CRRA was ``urgently'' needed. See S. Rep. No. 100-64, at 11-16.
    The proposed regulatory change described in the previous paragraphs 
address an issue recently raised by the Third Circuit Court of Appeals 
in Cureton v. NCAA, 198 F.3d 107, 115-16 (1999) (Cureton). That court 
determined that, because the Department of Health and Human Services 
(HHS) did not amend its Title VI regulation after the enactment of the 
CRRA, application of HHS's Title VI regulation to disparate impact 
discrimination claims is ``program specific'' (i.e., limited to 
specific programs in an institution affected by the Federal funds), 
rather than institution-wide (i.e., applicable to all of the operations 
of the institution regardless of the use of the Federal funds). In the 
court's view, the regulations should clarify the application of the 
broad institutional coverage to disparate impact claims, because the 
disparate impact analysis appears in a regulation, and not in a 
statute. The proposed regulatory changes would explicitly incorporate 
the definition of ``program or activity'' that corresponds to the 
definition enacted under the CRRA and thereby remove any doubt that 
DOL's rule implementing the Age Act applies institution-wide to both 
disparate impact discrimination and disparate treatment discrimination. 
(``Disparate treatment'' refers to policies or practices that treat 
individuals differently based on their race, color, national origin, 
sex, disability, or age, as applicable. Disparate treatment is 
generally barred by the civil rights statutes and regulations. 
``Disparate impact'' refers to criteria or methods of administration 
that have a significant disparate effect on individuals based on race, 
color, national origin, sex, disability, or age, as applicable. Those 
criteria or practices may constitute impermissible discrimination based 
on legal standards that include consideration of their necessity.) 
DOL's Title IX rule, published in final form on August 30, 2000 at 29 
CFR part 36 (see 65 FR 52858) incorporates the CRRA definition of 
``program or activity.'' Further, on December 6, 2000, DOL proposed to 
amend its Title VI and Section 504 regulations to incorporate the terms 
``program or activity'' or ``program'' and their definition consistent 
with the CRRA.

III. Overview of NPRM--Changes From December 28, 1998, NPRM

    The NPRM being published today differs little from the NPRM 
published on December 28, 1998; and the language changes in today's 
NPRM do not affect the substance of the December 28, 1998, NPRM. 
However, DOL is republishing the entire rule for notice and comment. 
The public is invited to comment on any or all of its provisions.
    The following table identifies sections in this proposed rule 
containing changes relating to the term ``program or activity'' as that 
term is defined in the CRRA:

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           Section                  Description of language changes
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35.1.........................  In the second sentence, the phrase
                                ``programs and activities'' is changed
                                to ``programs or activities''.
35.2.........................  In the section title, the phrase
                                ``programs and activities'' is changed
                                to ``programs or activities''.
35.2(c)(1)(iii)(2)...........  The phrase ``joint apprenticeship
                                training program'' has been changed to
                                ``joint apprenticeship training''.
32.3.........................  The definition of ``program or activity''
                                has been added.
35.16........................  The phrase ``normal operation of the
                                program'' has been changed to ``normal
                                operation of the program or activity''.
35.17........................  The phrase ``objective of the program''
                                has been changed to ``objective of the
                                program or activity''.
35.20........................  The phrase ``programs and activities''
                                has been changed to ``programs or
                                activities''.
35.21........................  The phrase ``specific programs'' has been
                                changed to ``specific programs or
                                activities''.
35.33........................  The phrase ``Federal program agency'' has
                                been changed to ``Federal agency.''.
35.38(b)(2)..................  The phrase ``program or activity'' has
                                been changed to ``Federal financial
                                assistance''.
------------------------------------------------------------------------

    In keeping with the changes described in the above table, in the 
title of the rule the phrase ``programs and activities'' has been 
changed to ``programs or activities.''
    Today's NPRM proposes additional changes in three sections. First, 
in the December 28, 1998, NPRM, Section 35.2(b) proposed that 
compliance with section 167 of JTPA and its implementing regulations 
would satisfy the obligation of recipients of Federal financial 
assistance from DOL under JTPA to comply with part 35. DOL has replaced 
the JTPA references with WIA

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references. DOL invites commenters to specifically address the 
interrelationship between the Age Act and its regulations and the 
nondiscrimination and equal opportunity provisions of WIA and its 
implementing regulations.
    Second, section 35.2(c)(iii)(2) of the December 28, 1998, NPRM made 
reference to JTPA. That reference has been changed to WIA.
    Third, today's NPRM contains a slight modification in the language 
of proposed section 35.26(a). The parallel section of the December 28, 
1998, NPRM proposed that the Civil Rights Center (CRC) may require a 
recipient receiving financial assistance from DOL to complete a written 
self-evaluation of an age distinction imposed under its program or 
activity. The proposed section stated that this requirement would be 
part of a compliance review or a complaint investigation conducted 
under the regulations implementing the Age Act or JTPA. CRC is 
concerned that a reference to the self-evaluation obligation being 
imposed in connection with financial assistance received under JTPA, or 
successor laws, could be misconstrued as limiting CRC's authority to 
request a self-evaluation in programs and activities receiving DOL 
financial assistance under other laws. Accordingly, proposed section 
35.26(a) has been revised to delete reference to JTPA.
    Readers are referred to the NPRM published at 63 FR 71714 (December 
29, 1998) for an additional detailed discussion of the sections not 
modified by this proposed rule.

IV. Regulatory Procedures

Executive Order 12866

    These proposed Age Discrimination Act regulations have been drafted 
and reviewed in accordance with Executive Order 12866, section 1(b), 
Principles of Regulation. The Department has determined that this 
proposed rule is a ``significant regulatory action'' under Executive 
Order 12866, section 3(f), Regulatory Planning and Review, yet is not 
economically significant as defined in section 3(f)(1), and, therefore, 
the information enumerated in section 6(a)(3)(C) of the order is not 
required. Pursuant to Executive Order 12866, this rule has been 
reviewed by the Office of Management and Budget.

Unfunded Mandates Reform

    Executive Order 12875--This proposed rule would not create an 
unfunded Federal mandate on any State, local or tribal government.
    Unfunded Mandates Reform Act of 1995--This proposed rule would not 
include any Federal mandate that might 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 clarifies existing requirements for entities 
receiving financial assistance from DOL. The requirements prohibiting 
age discrimination by recipients of Federal financial assistance that 
are in the Age Act and the government-wide regulations have been in 
effect since 1979. In addition, entities receiving financial assistance 
from DOL under WIA, have been expressly informed of their obligations 
to comply with the Age Act by both WIA statutory language and by the 
DOL regulations implementing WIA. Because the proposed rule would 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.

Paperwork Reduction Act

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

Executive Order 13132

    These proposed regulations have been reviewed in accordance with 
Executive Order 13132 regarding Federalism. This rule would not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. Therefore, 
the requirements of section 6 of Executive Order 13132 do not apply to 
this rule.

List of Subjects in 29 CFR Part 35

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

    Signed at Washington, DC this 3rd day of June, 2002.
Elaine L. Chao,
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 OR 
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 or 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

[[Page 39833]]

discrimination on the basis of age by recipients of Federal financial 
assistance and in federally assisted programs or 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 or 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 37. Compliance with Section 188 of 
the Workforce Investment Act of 1998 (WIA) (29 U.S.C. 2938) and 
implementing regulations at 29 CFR part 37, will satisfy the 
obligations of recipients of Federal financial assistance from DOL 
under WIA to comply with this part. CRC will use the legal standards in 
subpart B of this part when evaluating whether a WIA 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; 
or
    (ii) Establishes criteria for participation in age-related terms; 
or
    (iii) Describes intended beneficiaries or target groups in age-
related terms;
    (2) Any employment practice of any employer, employment agency, 
labor organization, or any labor-management joint apprentice training, 
except any program or activity receiving Federal financial assistance 
under the Workforce Investment Act of 1998 (29 U.S.C. 2801 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 Administration 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.
    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; or
    (ii) The entity of such State or local government that distributes 
such assistance and each department or agency (and each other State or 
local government entity) to which assistance is extended, in the case 
of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (ii) A local educational agency (as defined in section 8801 of 
Title 20 of the United States Code), system of vocational education, or 
other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraphs (1), (2) or (3) of this definition; 
any part of which is extended Federal financial assistance.
    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 
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.

[[Page 39834]]

    (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 or activity, 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 or 
activity 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 or 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 or activities. 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.


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 or monitoring review, or a complaint 
investigation, 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

[[Page 39835]]

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 this part, 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 
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 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 effect 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.

[[Page 39836]]

    (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 termination 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 the 
nondiscrimination and equal opportunity provisions of WIA, found at 29 
CFR 37.111, 37.112 and 37.115, 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 Federal financial assistance.


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 complaint 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) Notify the complainant;
    (2) Advise the complainant 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. 02-14458 Filed 6-7-02; 8:45 am]
BILLING CODE 4510-23-P