[Federal Register Volume 68, Number 133 (Friday, July 11, 2003)]
[Proposed Rules]
[Pages 41512-41517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17591]



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Part IV





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. 68, No. 133 / Friday, July 11, 2003 / 
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 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 sets out the Department of 
Labor's (``DOL'' or ``the Department'') proposed rules for implementing 
the Age Discrimination Act of 1975, as amended (``Age Act''). The Age 
Act prohibits discrimination on the basis of age in programs or 
activities receiving Federal financial assistance. The Age Act also 
contains certain exceptions that permit, under limited circumstances, 
use of age distinctions or factors other than age that might have a 
disproportionate effect on the basis of age. The Age Act applies to 
persons of all ages.

DATES: Comments must be received by September 9, 2003.

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. Comments by electronic mail 
may be sent to [email protected]. Receipt of submissions, 
whether by mail, FAX transmittal or by e-mail, will not be 
acknowledged; however, the sender may request confirmation that a 
submission has been received, by telephoning the Civil Rights Center at 
(202) 693-6500 (VOICE) or (202) 693-6515, (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, Civil 
Rights Center (CRC), Frances Perkins Building, 200 Constitution Ave. 
NW., Room N-4123, Washington, DC 20210, [email protected], 
(202) 693-6500 (VOICE) or (202) 693-6515, (800) 326-2577 (TTY/TDD).

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.)

II. Rulemaking History

    On December 29, 1998, DOL published its first NPRM to implement the 
Age Act. See 63 FR 71714 (1998). No comments were received by DOL 
regarding the proposal. A second NPRM (NPRM II) was published on June 
10, 2002, to address changes in statutory and case law that occurred 
subsequent to publication of the first NPRM. See 67 FR 39830 (2002). No 
comments were received by DOL regarding the second proposal.
    As part of the clearance process required by the government-wide 
Age Act regulations, DOL submitted its draft final rule to the 
Department of Health and Human Services (HHS) for review prior to 
publication as required by 45 CFR 90.31(c). HHS raised concerns about 
consistency between the draft DOL final Age Act rule and the 
government-wide Age Act regulations, as well as a few additional minor 
matters. The purpose of this NPRM is to address the HHS concerns and to 
propose minor technical corrections to the rule. These changes are 
discussed below in the section-by-section review of the proposed rule.

III. Section-by-Section Review of the NPRM

    The NPRM published today is identical to NPRM II with five 
exceptions. The proposed language in sections 35.2(b), 35.3, 35.13, 
35.15 and 35.37 is different from the language proposed for these 
sections in NPRM II. The differences between today's proposal and NPRM 
II are discussed below. Individuals interested in information about 
those sections of the proposed rule not discussed below are referred to 
the December 29, 1998, NPRM (63 FR 71714) and the June 10, 2002, NPRM 
II (67 FR 39830) for additional information.

Section 35.2(b)

    NPRM II proposed that Section 35.2(b) state that ``[c]ompliance 
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.'' Today the 
Department is proposing not to include this language in the rule.
    Compliance with the implementing regulations for section 188 of WIA 
will not satisfy recipient obligations under the Age Act. The 
definition of ``WIA Title I-funded program or activity'' found in the 
WIA regulations is not consistent with the definition of ``program or 
activity'' found in the Age Act, which was amended by the Civil Rights 
Restoration Act of 1987 (CRRA). The effect of the CRRA on the Age Act 
was to define ``program or activity'' to encompass all parts of the 
recipient's operations; i.e., the scope of coverage is institution-
wide. The regulation implementing section 188 of WIA does not contain 
as broad a scope of coverage. The scope of coverage of WIA is limited 
to the specific program or activity that receives financial assistance 
and not the entire institution. Additionally, the regulation 
implementing section 188 of WIA does not contain the exemptions to the 
rules against age discrimination that are part of the government-wide 
rule at 45 CFR 91.13 and 91.14. Accordingly, to make the Department's 
Age Act rule correspond to the government-wide Age Act rule, the 
Department proposes to delete section 35.2(b) and renumber this 
section.

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Section 35.3

    Section 35.3 would contain definitions applicable to the Age Act 
regulations. The definition for ``program or activity'' has been 
modified in two respects in today's NPRM: the modified definition 
contains an updated statutory citation to the definition of ``local 
educational agency,'' and the definition is now proposed to match the 
definition used in the Civil Rights Restoration Act of 1987. As 
discussed above, the CRRA amended the definition of ``program or 
activity'' in the Age Act to encompass all parts of the recipient's 
operations. The definition proposed today is the same as the definition 
proposed for the Department of Justice common rule which will amend the 
definition of ``program or activity'' for various Executive branch 
agencies' Title VI, Section 504 of the Rehabilitation Act, and Age Act 
regulations. (For more information on this change, see 65 FR 76460, 
December 6, 2000.)

Section 35.13

    Section 35.13 is proposed to contain certain exemptions to the 
rules against age discrimination. Today's proposal differs from NPRM II 
in that the word ``reasonable'' has been deleted from the text of this 
section to conform its language to that of the government-wide Age Act 
regulation.

Section 35.15

    Section 35.15 is proposed to allow recipients to take steps to 
overcome the effects of conditions that result in a limited 
participation on the basis of age. Today's NPRM proposes to revise the 
title of this section and to clarify that this section does not allow 
recipients to take actions that would permit any otherwise prohibited 
use of age distinctions in any program or activity receiving Federal 
financial assistance from DOL.

Section 35.37

    In NPRM II DOL proposed to use its procedures for conducting 
hearings, issuing decisions, and conducting post-termination 
proceedings under Section 188 of the Workforce Investment Act to 
conduct such proceedings under the Age Act as well. Differences between 
the Age Act and WIA coverage, discussed above, make it more appropriate 
to propose use of DOL Title VI enforcement procedures for Age Act 
cases. Section 37.37 of today's proposal would accomplish that end.

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 proposed 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

    This 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 the civil rights provisions of WIA. Because 
this proposed rule will not substantively change existing obligations 
on recipients, but merely clarifies such duties, the Department 
certifies that the proposed rule would not have a significant economic 
impact on a substantial number of small entities. Consequently, a 
regulatory flexibility analysis is not required.

Paperwork Reduction Act

    Section 35.31(c)(1) of the proposed rule allows a complainant to 
file a complaint by submitting a 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. Section 
35.40(b)(3)(iii) of the proposed rule requires a complainant to give 30 
days notice to the Secretary of Labor, the Secretary of Health and 
Human Services, the Attorney General of the United States, and the 
recipient, before commencing a civil action in the event that CRC 
issues a finding in favor of the recipient or fails to make a finding 
within 180 days. Based on the history of the program, the Department 
projects that fewer than 9 persons per year will either file a 
complaint with CRC or give notice that a civil action is being pursued. 
Accordingly, the Department believes the Paperwork Reduction Act is 
inapplicable to this rule. The Department invites the public to comment 
on its Paperwork Reduction Act analysis.

Executive Order 13132

    This proposed rule has been reviewed in accordance with Executive 
Order 13132 regarding Federalism. This proposed rule will 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 7th day of July, 2003.
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.

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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 Remedial action.
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 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) 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.
    Director means the Director of CRC.
    Department means the United States Department of Labor.
    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 any entity 
described in paragraphs (1) through (4) of this section, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other 
State or local government entity) to which the assistance is extended, 
in the case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (ii) A local educational agency (as defined in section 7801 of 
title 20), system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (1), (2), or (3) of this section.
    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

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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 Sec. Sec.  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 factor other than age, even 
though the action may have a disproportionate effect on persons of 
different ages. An action is based on a factor other than age only if 
the factor bears a direct and substantial relationship to the normal 
operation of the program or activity or to the achievement of a 
statutory objective.


Sec.  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 Sec. Sec.  35.12 
and 35.13.


Sec.  35.15  Remedial action.

    Even in the absence of a finding of discrimination, a recipient, in 
administering a program, may take steps to overcome the effects of 
conditions that resulted in a limited participation on the basis of 
age. Nothing in this section will permit any otherwise prohibited use 
of age distinctions that have the effect of excluding individuals from, 
denying them benefits of, subjecting them to discrimination under, or 
limiting them in their opportunity to participate in any program or 
activity receiving federal financial assistance from DOL.


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.

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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 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 
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

[[Page 41517]]

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.
    (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.

    Certain DOL procedural provisions applicable to Title VI of the 
Civil Rights Act of 1964 apply to DOL enforcement of these regulations. 
They are found at 29 CFR 31.9 through 31.11.


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. 03-17591 Filed 7-10-03; 8:45 am]
BILLING CODE 4510-23-P