[Federal Register Volume 69, Number 64 (Friday, April 2, 2004)]
[Rules and Regulations]
[Pages 17571-17582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7006]



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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; 
Final Rule

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  Federal Register / Vol. 69, No. 64 / Friday, April 2, 2004 / Rules 
and Regulations  
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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: Final rule.

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SUMMARY: In this final rule, the U.S. Department of Labor (``DOL'' or 
``the Department'') implements the Age Discrimination Act of 1975, as 
amended (``Age Act'' or ``the Act''). The Age Act prohibits 
discrimination on the basis of age in programs or activities receiving 
Federal financial assistance. The 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.

EFFECTIVE DATE: May 3, 2004.

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 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 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 in 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 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 
after the first NPRM was published. 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. DOL published a third NPRM (NPRM III) on July 11, 2003, that 
addressed the HHS concerns and proposed minor technical corrections to 
the rule. See 68 FR 41511 (2003). Again, DOL received no comments in 
response to the proposed rule.

III. Overview of the Final Rule

    The final rule published today is nearly identical to the rule as 
proposed in the July 11, 2003, NPRM. We have made a few non-substantive 
changes to improve readability of the final rule. We also have amended 
paragraph 35.32(a)(1) from reading ``an exemption under section 
35.2(c)'' to read ``an exception.'' This change was made because the 
NPRM did not contain a section 35.2(c), and to make the rule's language 
consistent with HHS's government-wide Age Act regulations.
    In addition, HHS's government-wide Age Act regulations require that 
``each agency shall publish an appendix to its final age discrimination 
regulations containing a list of each age distinction provided in a 
Federal statute or in regulations affecting financial assistance 
administered by the agency.'' 45 CFR 90.31(f). The Department of Labor 
has complied with this requirement by including Appendix A with this 
final rule. The material in Appendix A is self-explanatory.
    We have made one substantive change to the rule, in paragraph 
35.2(b). That paragraph lists circumstances in which the rule does not 
apply. Subparagraph 35.2(b)(2) of the NPRM stated that the rule would 
not apply to the employment practices of certain listed entities, 
except those of ``any program or activity receiving Federal financial 
assistance under the Workforce Investment Act of 1998 (29 U.S.C. 2801 
et seq.).'' The exception for WIA-financially assisted programs and 
activities was derived from the Age Act. However, in the Omnibus 
Consolidated and Emergency Supplemental Appropriations Act of 1999, 
Public Law 105-277, Congress eliminated this exception. Therefore, we 
are deleting the exception from this final rule. Applicants to, 
participants in, and employees of programs and activities receiving 
Federal financial assistance under WIA remain protected from age-based 
discrimination by WIA Section 188, 29 U.S.C. 2938, and DOL's 
regulations implementing that section, found at 29 CFR part 37.
    Because the change described above is the only substantive 
difference between the regulatory text of this final rule and the 
corresponding text in NPRM III, we have not included a Section-by-
Section Analysis in this preamble. Anyone interested in learning more 
about the differences between this final rule and NPRM II (published in 
2002) should read the preamble to NPRM III at 68 FR 41511.

IV. Regulatory Procedures

Executive Order 12866

    This final rule has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Department has determined that this final 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 the 
Order, this final rule has been reviewed by the Office of Management 
and Budget.

Unfunded Mandates Reform

    Executive Order 12875--This final rule does not create an unfunded 
Federal mandate on any State, local or tribal government.
    Unfunded Mandates Reform Act of 1995--This final rule does 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 final rule clarifies existing requirements for entities 
receiving financial assistance from DOL. The

[[Page 17571]]

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 final rule does not 
substantively change existing obligations on recipients, but merely 
clarifies such duties, the Department certifies that the final rule 
does 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 final 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 final 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.

Executive Order 13132

    This final rule has been reviewed in accordance with Executive 
Order 13132 regarding Federalism. This final 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 22nd day of March, 2004.
Elaine L. Chao,
Secretary of Labor.

0
For the reasons set out in the preamble, 29 CFR subtitle A is 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 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.
Appendix A to Part 35--Age Distinctions in Statutes Affecting 
Federal Financial Assistance Administered by DOL

    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 
program.


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

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

[[Page 17573]]

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.


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

[[Page 17574]]

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 exception; 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) Sixty 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.
    (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

[[Page 17575]]

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.

     Appendix A to Part 35--Age Distinctions in Statutes Affecting Financial Assistance Administered by DOL
----------------------------------------------------------------------------------------------------------------
                                                                    Section and age
               Program                         Statute                distinction               Regulation
----------------------------------------------------------------------------------------------------------------
                                     Employment and Training Administration
----------------------------------------------------------------------------------------------------------------
1. Senior Community Service            Title V, Older           Sec. 516(2) defines the  20 CFR part 641.
 Employment Program (SCSEP).            Americans Act            term ``eligible
                                        Amendments of 2000,      individuals'' to mean
                                        Pub. L. 106-501, 42      ``an individual who is
                                        U.S.C.3056, 3056N.       55 years old or older,
                                                                 who has a low income *
                                                                 * *, except that, * *
                                                                 *, any such individual
                                                                 who is 60 years of
                                                                 older shall have
                                                                 priority * * *.
2. Job Corps.........................  Title I, Subtitle C,     Sec. 144 of WIA (29      20 CFR 670.400.
                                        Workforce Investment     U.S.C. 2884)
                                        Act of 1998 (WIA),       establishes
                                        Pub. L. 105-220, 29      eligibility criteria
                                        U.S.C. 2881-2901.        for the Job Corps
                                                                 program. These
                                                                 criteria require an
                                                                 enrollee to ``be--(1)
                                                                 not less than age 16
                                                                 and not more than age
                                                                 21 on the date of
                                                                 enrollment, except
                                                                 that--(A) not more
                                                                 than 20 percent of the
                                                                 individuals enrolled
                                                                 in the Job Corps may
                                                                 be not less than age
                                                                 22 and not more than
                                                                 age 24 on the date of
                                                                 enrollment; and (B)
                                                                 either such maximum
                                                                 age limitation may be
                                                                 waived by the
                                                                 Secretary, * * * in
                                                                 the case of an
                                                                 individual with a
                                                                 disability.''
3. Indian and Native American          Title I, Workforce       Sec. 166(d)(2)(A)(ii)    20 CFR 668.430.
 Supplemental Youth Services.           Investment Act of 1998   of WIA (29 U.S.C.
                                        (WIA), Pub. L. 105-      2911(d)(2)(A)(ii))
                                        220, 29 U.S.C. 2911.     states that funds made
                                                                 available under the
                                                                 program shall be used
                                                                 for ``supplemental
                                                                 services for Indian or
                                                                 Native Hawaiian youth
                                                                 on or near Indian
                                                                 reservations and in
                                                                 Oklahoma, Alaska, or
                                                                 Hawaii.'' Sec. 101(13)
                                                                 of WIA (29 U.S.C.
                                                                 2801(13)) defines an
                                                                 eligible youth as an
                                                                 individual who ``is
                                                                 not less than age 14
                                                                 and not more than age
                                                                 21 * * *''.
4. Migrant and Seasonal Farmworker     Title I, Workforce       Sec. 167 of WIA (29      20 CFR 669.670.
 (MSFW) Youth Program.                  Investment Act of 1998   U.S.C. 2912) outlines
                                        (WIA), Pub. L. 105-      the MSFW program. WIA
                                        220, 29 U.S.C. 2912.     Sec. 127(b)(1)(A)(iii)
                                                                 authorizes the MSFW
                                                                 Youth Program. That
                                                                 provision states that,
                                                                 ``the Secretary shall
                                                                 make available 4
                                                                 percent of such
                                                                 portion to provide
                                                                 youth activities under
                                                                 sec. 167.'' Sec.
                                                                 101(13) of WIA (29
                                                                 U.S.C. 2801(13))
                                                                 defines an eligible
                                                                 youth as an individual
                                                                 who ``is not less than
                                                                 age 14 and not more
                                                                 than age 21; * * *''.

[[Page 17576]]

 
5. Responsible Reintegration of Young  Title I, Workforce       (a) Sec. 171(b)(1) of    20 CFR 667.220.
 Offenders (Youth Offender              Investment Act of 1998   WIA (29 U.S.C.
 Demonstration Project).                (WIA), Pub. L. 105-      2916(b)(1)) states
                                        220, 29 U.S.C. 2916;     that the ``Secretary
                                        Departments Of Labor,    shall, through grants
                                        Health And Human         or contracts, carry
                                        Services, And            out demonstration and
                                        Education, And Related   pilot projects for the
                                        Agencies Appropriation   purpose of developing
                                        Bill, 2003.              and implementing
                                                                 techniques and
                                                                 approaches, and
                                                                 demonstrating the
                                                                 effectiveness of
                                                                 specialized methods,
                                                                 in addressing
                                                                 employment and
                                                                 training needs. Such
                                                                 projects shall include
                                                                 the provision of
                                                                 direct services to
                                                                 individuals to enhance
                                                                 employment
                                                                 opportunities and an
                                                                 evaluation component *
                                                                 * *.'' The Responsible
                                                                 Reintegration of Young
                                                                 Offenders program was
                                                                 established in FY 2001
                                                                 by DOL, in
                                                                 collaboration with the
                                                                 Departments of Health
                                                                 and Human Services and
                                                                 Justice, pursuant to
                                                                 this authority.
                                                                (b) Senate Report 107-
                                                                 84 on bill S. 1536
                                                                 (Departments of Labor,
                                                                 Health and Human
                                                                 Services, and
                                                                 Education, and Related
                                                                 Agencies Appropriation
                                                                 for FY 2002) noted
                                                                 that the Responsible
                                                                 Reintegration of Young
                                                                 Offenders initiative
                                                                 would ``link offenders
                                                                 under age 35 with
                                                                 essential services
                                                                 that can help make the
                                                                 difference in their
                                                                 choices in the future
                                                                 * * *'' (p. 25). DOL
                                                                 has determined, based
                                                                 upon the reentry needs
                                                                 of states and local
                                                                 communities, to
                                                                 provide services to a
                                                                 14-24 year-old subset
                                                                 within this age limit.
                                                                 See 66 FR 30754, 30755
                                                                 (June 7, 2001).
6. WIA Youth Activities..............  Title I, Workforce       WIA Sec. 129 (29 U.S.C.  20 CFR 664.200.
                                        Investment Act of 1998   2854) provides the
                                        (WIA), Pub. L. 105-      standards for WIA-
                                        220, 29 U.S.C. Sec.      financially assisted
                                        2854.                    services to eligible
                                                                 youth. Eligible youth
                                                                 is defined in Sec.
                                                                 101(13) as an
                                                                 individual who ``is
                                                                 not less than age 14
                                                                 and not more than age
                                                                 21; * * *''.
7. Work Opportunity Tax Credits        Small Business Job       WOTC is intended to      None.
 (WOTCs).                               Protection Act of        assist individuals
                                        1996, Pub. L. 104-188,   from groups with
                                        26 U.S.C. 51.            consistently high
                                                                 unemployment rates by
                                                                 providing tax credits
                                                                 to their employers.
                                                                 Sec. 1201(b) of the
                                                                 Act (26 U.S.C. 51(d))
                                                                 defines the targeted
                                                                 groups, including high-
                                                                 risk youth (26 U.S.C.
                                                                 51(d)(1)(D)),
                                                                 qualified summer youth
                                                                 employee (26 U.S.C.
                                                                 51(d)(1)(F)), and
                                                                 qualified food stamp
                                                                 recipient (26 U.S.C.
                                                                 51(d)(1)(G)). The
                                                                 definitions of ``high-
                                                                 risk youth'' and
                                                                 ``qualified food stamp
                                                                 recipient'' include a
                                                                 requirement that the
                                                                 individual have
                                                                 ``attained age 18 but
                                                                 not age 25 on the
                                                                 hiring date.'' 26
                                                                 U.S.C. 51(d)(5)(A)(i),
                                                                 51(d)(8)(A)(i). The
                                                                 definition of
                                                                 ``qualified summer
                                                                 youth employee''
                                                                 includes a requirement
                                                                 that the individual
                                                                 have ``attained age 16
                                                                 but not 18 on the
                                                                 hiring date (or if
                                                                 later, on May 1 of the
                                                                 calendar year
                                                                 involved).'' 26 U.S.C.
                                                                 51(d)(2)(7)(A)(ii).
8. Youth Opportunity Grants..........  Title I, Workforce       Sec. 169 provides that   20 CFR 664.820.
                                        Investment Act of 1998   ``the Secretary shall
                                        (WIA), Pub. L. 105-      make grants to
                                        220, 29 U.S.C. 2914.     eligible local boards
                                                                 and eligible entities
                                                                 * * * to provide
                                                                 activities * * * for
                                                                 youth to increase the
                                                                 long-term employment
                                                                 of youth who live in
                                                                 empowerment zones,
                                                                 enterprise
                                                                 communities, and high
                                                                 poverty areas and who
                                                                 seek assistance.'' It
                                                                 defines ``youth'' as
                                                                 ``an individual who is
                                                                 not less than age 14
                                                                 and not more than age
                                                                 21.''

[[Page 17577]]

 
9. Youth Apprenticeship Program......  29 U.S.C. 50...........  Sec. 1 of the National   29 CFR 29.2,
                                                                 Apprenticeship Act of    29.5(b)(10).
                                                                 1937 authorizes and
                                                                 directs the Secretary
                                                                 of Labor to promote
                                                                 the labor standards
                                                                 necessary to safeguard
                                                                 the welfare of
                                                                 apprentices, encourage
                                                                 contracts of
                                                                 apprenticeship, and
                                                                 bring employers and
                                                                 labor together to form
                                                                 apprenticeships. An
                                                                 apprentice is defined
                                                                 in 29 CFR 29.2 of the
                                                                 Act's implementing
                                                                 regulations as ``a
                                                                 worker at least 16
                                                                 years of age, * * *,
                                                                 who is employed to
                                                                 learn a skilled trade
                                                                 * * * under standards
                                                                 of apprenticeship * *
                                                                 *''. The regulations
                                                                 also require that the
                                                                 ``eligible starting
                                                                 age'' of an
                                                                 apprenticeship program
                                                                 be ``not less than 16
                                                                 years.''
10. Trade Adjustment Assistance......  Trade Adjustment         Sec. 246 of the Act      20 CFR part 617; see
                                        Assistance Reform Act    requires the Secretary   also TAA Training and
                                        of 2002 (Pub. L. 107-    of Labor to establish    Employment Guidance
                                        210), 19 U.S.C. 2318.    a demonstration          Letter, 67 FR 69029
                                                                 project for              (Nov. 14, 2002).
                                                                 alternative trade
                                                                 adjustment assistance
                                                                 (ATAA) for workers age
                                                                 50 or older. Under
                                                                 this demonstration
                                                                 project, workers
                                                                 petitioning for
                                                                 certification under
                                                                 the Trade Adjustment
                                                                 Assistance (TAA)
                                                                 program may request
                                                                 certification under
                                                                 the ATAA program as
                                                                 well. Certification
                                                                 will be granted if a
                                                                 number of conditions
                                                                 are met, including
                                                                 that a significant
                                                                 number of workers in
                                                                 the affected firm are
                                                                 50 or over. Once the
                                                                 worker group is
                                                                 certified, individual
                                                                 workers may choose the
                                                                 program they prefer.
                                                                 Additional
                                                                 qualifications for
                                                                 individual workers
                                                                 include an age at
                                                                 least 50.
--------------------------------------
                                       Employment Standards Administration
----------------------------------------------------------------------------------------------------------------
11. Defense Base.....................  Defense Base Act, Pub.   The Defense Base Act     20 CFR part 702.
                                        L. 77-208, Act of Aug.   (DBA) extends the
                                        16, 1941, ch. 357, 55    provisions of the
                                        Stat. 623, 42 U.S.C.     Longshore and Harbor
                                        1651-1654.               Workers' Compensation
                                                                 Act, 33 U.S.C. 901-
                                                                 950, ``except as
                                                                 modified'' in the DBA
                                                                 to certain persons
                                                                 employed at military
                                                                 bases outside the
                                                                 continental United
                                                                 States. DBA sec. 2(b),
                                                                 42 U.S.C. 1652(b),
                                                                 provides that
                                                                 compensation for
                                                                 disability or death to
                                                                 aliens and non-
                                                                 nationals of the
                                                                 United States who are
                                                                 not residents of the
                                                                 United States or
                                                                 Canada under the
                                                                 Defense Base Act is in
                                                                 the same amount as
                                                                 residents, ``except
                                                                 that dependents in any
                                                                 foreign country shall
                                                                 be limited to
                                                                 surviving wife and
                                                                 child or children.''
                                                                 The DBA does not
                                                                 modify the LHWCA's
                                                                 definition of a child
                                                                 and the latter is
                                                                 defined as a person
                                                                 who is under 18 years
                                                                 of age, or who though
                                                                 18 years of age or
                                                                 over, is wholly
                                                                 dependent upon the
                                                                 employee and incapable
                                                                 of self-support by
                                                                 reason of mental or
                                                                 physical disability,
                                                                 or is a student.

[[Page 17578]]

 
12. Energy Employees Occupational      Energy Employees         (a) The Energy           20 CFR 30.5(ee).
 Illness Compensation Program.          Occupational Illness     Employees Occupational
                                        Compensation Program     Illness Compensation
                                        Act, Pub. L. 106-398,    Program Act (EEOICPA)
                                        Title XXXVI, October     provides compensation
                                        30, 2000, 114 Stat.      and medical benefits
                                        1654 42 U.S.C. 7384 et   to nuclear weapons
                                        seq.                     industry employees or
                                                                 their eligible
                                                                 survivors who have
                                                                 covered illnesses
                                                                 related to exposure to
                                                                 beryllium, cancers
                                                                 related to exposure to
                                                                 radiation, and chronic
                                                                 silicosis. Some
                                                                 uranium employees or
                                                                 their eligible
                                                                 survivors are also
                                                                 eligible for
                                                                 compensation under the
                                                                 Act. Sec. 3628(e) of
                                                                 EEOICPA, 42 U.S.C.
                                                                 7384s(e)(1)(F)(ii), as
                                                                 amended by Sec. 3151
                                                                 of Pub. L. 107-107,
                                                                 the National Defense
                                                                 Authorization Act for
                                                                 Fiscal Year 2002,
                                                                 relating to claims for
                                                                 radiogenic cancer,
                                                                 beryllium illnesses,
                                                                 or silicosis, provides
                                                                 that notwithstanding
                                                                 other provisions
                                                                 pertaining to payments
                                                                 in the case of
                                                                 deceased persons, if
                                                                 there is a surviving
                                                                 spouse and ``at least
                                                                 one child of the
                                                                 covered employee who
                                                                 is living and a minor
                                                                 at the time of payment
                                                                 and who is not a
                                                                 recognized natural
                                                                 child or adopted child
                                                                 of such surviving
                                                                 spouse, then half of
                                                                 such payment shall be
                                                                 made to such surviving
                                                                 spouse, and the other
                                                                 half of such payment
                                                                 shall be made in equal
                                                                 shares to each child
                                                                 of the covered
                                                                 employee who is living
                                                                 and a minor at the
                                                                 time of payment.''
                                                                (b) Sec. 3630(e) of
                                                                 EEOICPA, 42 U.S.C.
                                                                 7384u(e)(1)(F)(ii), as
                                                                 amended by Sec. 3151
                                                                 of Pub. L. 107-107,
                                                                 the National Defense
                                                                 Authorization Act for
                                                                 Fiscal Year 2002,
                                                                 relating to claims by
                                                                 uranium employees
                                                                 contains a provision
                                                                 identical to that
                                                                 described above in
                                                                 Sec. 3628(e).
13. Federal Employees' Compensation..  Federal Employees'       (a) Sec. 8101(8), 5      20 CFR 10.405, 10.410,
                                        Compensation Act, Act    U.S.C. 8108(8),          10.413-.417, 10.535-
                                        of Sept. 7, 1916, ch.    defines ``brother''      .537, 25.101 and
                                        458, 39 Stat. 742 5      and ``sister'' as        25.202.
                                        U.S.C. 8101-8151.        meaning ``one who at
                                                                 the time of the death
                                                                 of the employee is
                                                                 under 18 years of age
                                                                 or over that age and
                                                                 incapable of self-
                                                                 support.''
                                                                (b) Sec. 8101(9), 5      .......................
                                                                 U.S.C. 8108(9),
                                                                 defines ``child'' as
                                                                 ``one who at the time
                                                                 of the death of the
                                                                 employee is under 18
                                                                 years of age or over
                                                                 that age and incapable
                                                                 of self-support, and
                                                                 includes stepchildren,
                                                                 adopted children, and
                                                                 posthumous children,
                                                                 but does not include
                                                                 married children.''
                                                                (c) Sec. 8101(10), 5     .......................
                                                                 U.S.C. 8108(10),
                                                                 defines ``grandchild''
                                                                 as ``one who at the
                                                                 time of the death of
                                                                 the employee is under
                                                                 18 years of age or
                                                                 over that age and
                                                                 incapable of self-
                                                                 support.''
                                                                (d) Sec. 8101(17), 5     .......................
                                                                 U.S.C. 8108(17),
                                                                 defines ``student'' as
                                                                 ``an individual under
                                                                 23 years of age who
                                                                 has not completed 4
                                                                 years of education
                                                                 beyond the high school
                                                                 level and who is
                                                                 regularly pursuing a
                                                                 full-time course of
                                                                 study or training''.

[[Page 17579]]

 
                                                                (e) Sec. 8109, 5 U.S.C.  .......................
                                                                 8109, sets forth the
                                                                 order of precedence
                                                                 for payments of
                                                                 scheduled awards
                                                                 unpaid at the time of
                                                                 the employee's death
                                                                 from a cause other
                                                                 than the employment-
                                                                 related injury. It
                                                                 establishes the order
                                                                 as, ``if no child, to
                                                                 the widow or widower,
                                                                 if there are both a
                                                                 widow or widower and a
                                                                 child or children, one-
                                                                 half to the widow or
                                                                 widower and one-half
                                                                 to the child or
                                                                 children, [and] if
                                                                 there is no widow or
                                                                 widower, to the child
                                                                 or children.''
                                                                (f) Sec. 8110(a), 5      .......................
                                                                 U.S.C. 8110(a)(3),
                                                                 defines ``dependent''
                                                                 for purposes of
                                                                 determining
                                                                 eligibility for
                                                                 augmented compensation
                                                                 for dependents as
                                                                 including ``an
                                                                 unmarried child, while
                                                                 living with the
                                                                 employee or receiving
                                                                 regular contributions
                                                                 from the employee
                                                                 toward his support,
                                                                 and who is (A) under
                                                                 18 years of age; or
                                                                 (B) over 18 years of
                                                                 age and incapable of
                                                                 self-support because
                                                                 of physical or mental
                                                                 disability.''
                                                                 Notwithstanding
                                                                 paragraph (3),
                                                                 compensation payable
                                                                 for a child that would
                                                                 otherwise end because
                                                                 the child has reached
                                                                 18 years of age shall
                                                                 continue if he is a
                                                                 student as defined by
                                                                 section 8101 * * * at
                                                                 the time he reaches 18
                                                                 years of age for so
                                                                 long as he continues
                                                                 to be a student or
                                                                 until he marries.''
                                                                (g) Sec. 8113(a), 5      .......................
                                                                 U.S.C. 8113(a),
                                                                 permits the Secretary,
                                                                 after the time the
                                                                 wage-earning capacity
                                                                 of the individual
                                                                 would probably have
                                                                 increased but for the
                                                                 injury, to recompute
                                                                 prospectively the
                                                                 monetary compensation
                                                                 payable for disability
                                                                 on the basis of an
                                                                 assumed monthly pay
                                                                 corresponding to the
                                                                 probable increased
                                                                 wage-earning capacity,
                                                                 ``if an individual (a)
                                                                 was a minor or
                                                                 employed in a
                                                                 learner's capacity at
                                                                 the time of injury and
                                                                 (b) was not physically
                                                                 or mentally
                                                                 handicapped before the
                                                                 injury.''
                                                                (h) Sec. 8115(a)(4), 5
                                                                 U.S.C. 8115(a)(4),
                                                                 states that the age of
                                                                 an employee is one
                                                                 factor that shall be
                                                                 used in determining
                                                                 his wage-earning
                                                                 capacity for purposes
                                                                 of eligibility for
                                                                 partial disability
                                                                 compensation when the
                                                                 actual earnings of the
                                                                 employee do not fairly
                                                                 and reasonably
                                                                 represent his wage-
                                                                 earning capacity or
                                                                 the employee has no
                                                                 actual earnings.
                                                                (i) Sec. 8122(d)(1), 5
                                                                 U.S.C. 8122(d)(1),
                                                                 provides that the time
                                                                 limitations for making
                                                                 a claim under FECA do
                                                                 not begin to run
                                                                 against a minor until
                                                                 he reaches 21 years of
                                                                 age or has had a legal
                                                                 representative
                                                                 appointed.
                                                                (j) Sec. 8133(a), 5      .......................
                                                                 U.S.C. 8133(a),
                                                                 provides for
                                                                 compensation if death
                                                                 results from an injury
                                                                 sustained in the
                                                                 performance of duty
                                                                 and makes such
                                                                 compensation payable
                                                                 in accordance with a
                                                                 schedule that makes
                                                                 numerous references to
                                                                 children and
                                                                 grandchildren.
                                                                (k) Sec. 8133(b)(1), 5   .......................
                                                                 U.S.C. 8133(b)(1),
                                                                 provides that the
                                                                 compensation payable
                                                                 for death under
                                                                 subsection (a)
                                                                 terminates for a widow
                                                                 or widower if they die
                                                                 or remarry before
                                                                 reaching age 55.

[[Page 17580]]

 
                                                                (l) Sec. 8133(b)(2), 5
                                                                 U.S.C. 8133(b)(2),
                                                                 provides that the
                                                                 compensation payable
                                                                 for death under
                                                                 subsection (a)
                                                                 terminates for a
                                                                 child, a brother, a
                                                                 sister, or a
                                                                 grandchild when they
                                                                 die, marry, or become
                                                                 18 years of age, or if
                                                                 over age 18 and
                                                                 incapable of self-
                                                                 support becomes
                                                                 capable of self-
                                                                 support but such
                                                                 compensation that
                                                                 would otherwise end
                                                                 because they reached
                                                                 18 years of age shall
                                                                 continue if they are a
                                                                 student at the time
                                                                 they reach 18 years of
                                                                 age for as long as
                                                                 they continue to be a
                                                                 student or until they
                                                                 marry.
                                                                (m) Sec. 8135(b), 5
                                                                 U.S.C. 8135(b),
                                                                 provides that if a
                                                                 widow or widower
                                                                 entitled to death
                                                                 benefits remarries
                                                                 before reaching age
                                                                 55, they shall be paid
                                                                 a lump sum equal to
                                                                 twenty-four times the
                                                                 monthly compensation
                                                                 to which they were
                                                                 entitled immediately
                                                                 before the remarriage.
                                                                (n) Sec. 8141(a), 5
                                                                 U.S.C. 8141(a), Civil
                                                                 Air Patrol Cadets
                                                                 under 18 years of age
                                                                 are not covered by
                                                                 FECA.
                                                                (o) Sec. 8141(b)(2), 5
                                                                 U.S.C. 8141(b)(2),
                                                                 volunteer civilian
                                                                 members of the Civil
                                                                 Air Patrol, other than
                                                                 Civil Air Patrol
                                                                 Cadets under 18 years
                                                                 of age, are entitled
                                                                 to death benefits
                                                                 under sec. 8133 but
                                                                 only receive certain
                                                                 specified percentages
                                                                 of those benefits with
                                                                 no additional payments
                                                                 for a child or
                                                                 children in certain
                                                                 circumstances.
14. Longshore and Harbor Workers'      Longshore and Harbor     (a) The Longshore and    20 CFR 702.142(a) and
 Compensation.                          Workers' Compensation    Harbor Workers'          702.222(a).
                                        Act, Act of March 4,     Compensation Act
                                        1927, ch. 509, 44        (LHWCA) provides
                                        Stat. 1424 33 U.S.C.     workers' compensation
                                        901-950.                 for maritime
                                                                 employees. Sec. 2(14),
                                                                 33 U.S.C. 902(14),
                                                                 defines a child and
                                                                 provides that a child,
                                                                 grandchild, brother or
                                                                 sister to include only
                                                                 a person who is under
                                                                 18 years of age, or
                                                                 who though 18 years of
                                                                 age or over, is wholly
                                                                 dependent upon the
                                                                 employee and incapable
                                                                 of self-support by
                                                                 reason of mental or
                                                                 physical disability,
                                                                 or is a student.
                                                                (b) Sec. 2(18), 33
                                                                 U.S.C. 902(18),
                                                                 defines a student as a
                                                                 person regularly
                                                                 pursuing a full-time
                                                                 course of study or
                                                                 training at certain
                                                                 specified institutions
                                                                 but not after he
                                                                 reaches the age of 23
                                                                 or has completed 4
                                                                 years of education
                                                                 beyond the high school
                                                                 level, except that,
                                                                 where his 23rd
                                                                 birthday occurs during
                                                                 a semester or other
                                                                 enrollment period, he
                                                                 shall continue to be
                                                                 considered a student
                                                                 until the end of such
                                                                 semester or other
                                                                 enrollment period. A
                                                                 child is deemed not a
                                                                 student during a
                                                                 period of service in
                                                                 the Armed Forces of
                                                                 the United States. A
                                                                 child is not deemed to
                                                                 have ceased to be a
                                                                 student during any
                                                                 interim between school
                                                                 years if certain
                                                                 conditions are met.
                                                                (c) Sec. 8(d)(1), 33
                                                                 U.S.C. 908(d)(1),
                                                                 provides a scheme of
                                                                 distribution for
                                                                 payment of unpaid
                                                                 scheduled permanent
                                                                 partial disability
                                                                 benefits when an
                                                                 employee who is
                                                                 receiving such
                                                                 benefits dies from
                                                                 causes other than the
                                                                 injury. The
                                                                 distribution contains
                                                                 numerous references to
                                                                 child or children.

[[Page 17581]]

 
                                                                (d) Sec. 9(b)-(d), 33
                                                                 U.S.C. 909(b)-(d),
                                                                 provide for the
                                                                 payment of death
                                                                 benefits and the
                                                                 amount of such
                                                                 payments varies in
                                                                 part according to
                                                                 whether the deceased
                                                                 employee has a child
                                                                 or children.
                                                                (e) Sec. 9(g), 33
                                                                 U.S.C. 909(g),
                                                                 provides that
                                                                 compensation for
                                                                 aliens who are not
                                                                 residents (or about to
                                                                 become residents) of
                                                                 the United States or
                                                                 Canada is the same as
                                                                 for residents, except
                                                                 that dependents in any
                                                                 foreign country shall
                                                                 be limited to
                                                                 surviving wife and
                                                                 child or children, or
                                                                 if there be no
                                                                 surviving wife or
                                                                 child or children, to
                                                                 surviving father or
                                                                 mother whom the
                                                                 employee has supported.
                                                                (f) Sec. 10(e), 33
                                                                 U.S.C. 910(e),
                                                                 provides that in
                                                                 determining the
                                                                 average weekly wages
                                                                 of an employee who is
                                                                 injured when a minor,
                                                                 the fact can be
                                                                 considered that under
                                                                 normal conditions his
                                                                 wages should be
                                                                 expected to increase
                                                                 during the period of
                                                                 disability.
                                                                (g) Sec. 11, 33 U.S.C.
                                                                 911, permits the
                                                                 district director to
                                                                 require the
                                                                 appointment of a
                                                                 guardian or other
                                                                 representative for a
                                                                 minor or any person
                                                                 who is mentally
                                                                 incompetent to receive
                                                                 compensation payable
                                                                 to the minor or
                                                                 incompetent and to
                                                                 exercise the powers
                                                                 granted to or to
                                                                 perform the duties
                                                                 required of them under
                                                                 the LHWCA.
                                                                (h) Sec. 13(c), 33
                                                                 U.S.C. 913(c),
                                                                 establishes the time
                                                                 requirement for filing
                                                                 a claim. The usual one
                                                                 year time limit is not
                                                                 applicable if the
                                                                 person entitled to
                                                                 compensation is
                                                                 mentally incompetent
                                                                 or a minor and such
                                                                 person has no guardian
                                                                 or other authorized
                                                                 representative. This
                                                                 freeze ends for a
                                                                 minor when a guardian
                                                                 is appointed or when
                                                                 he becomes of age.
15. War Hazards Compensation.........  War Hazards              The War Hazards          20 CFR 61.203.
                                        Compensation Act, Act    Compensation Act
                                        of Dec. 2, 1942, ch.     provides that certain
                                        668, Title I, 56 Stat.   provisions of the FECA
                                        1028 42 U.S.C. 1701-     and the LHWCA apply to
                                        1717.                    certain persons
                                                                 employed by government
                                                                 contractors outside
                                                                 the continental United
                                                                 States who sustain an
                                                                 injury proximately
                                                                 caused by a war risk
                                                                 hazard. Sec. 101(c),
                                                                 42 U.S.C. 1701(c),
                                                                 provides that
                                                                 compensation for
                                                                 disability or death to
                                                                 aliens and non-
                                                                 nationals of the
                                                                 United States who are
                                                                 not residents of the
                                                                 United States or
                                                                 Canada under the Act
                                                                 is in the same amount
                                                                 as residents, ``except
                                                                 that dependents in any
                                                                 foreign country shall
                                                                 be limited to
                                                                 surviving wife or
                                                                 husband and child or
                                                                 children.''
16. Child Labor Restrictions.........  Walsh-Healey Public      The Act contains child   41 CFR part 50-201.
                                        Contracts Act, 41        labor restrictions for
                                        U.S.C. 35 et seq.,       government
                                                                 manufacturing and
                                                                 supply contracts.
17. Child Labor Restrictions.........  Fair Labor Standards     The Act contains child   29 CFR part 570.
                                        Act, 29 U.S.C. 201 et    labor restrictions
                                        seq.,                    applicable to almost
                                                                 all employers
                                                                 receiving Federal
                                                                 financial assistance.

[[Page 17582]]

 
18. Black Lung Benefits..............  Black Lung Benefits      (a) 30 U.S.C. 902(a),    20 CFR part 725,
                                        Act, 30 U.S.C. 901-945.  BLBA definition of       subpart B.
                                                                 ``dependent'': refers
                                                                 to sec. 902(g),
                                                                 definition of
                                                                 ``child''.
                                                                (b) 30 U.S.C. 902(g),
                                                                 BLBA definition of
                                                                 ``child'': defines a
                                                                 child or step-child as
                                                                 an individual who is
                                                                 under 18 years of age;
                                                                 defines a child who is
                                                                 a ``student'' by cross-
                                                                 reference to 42 U.S.C.
                                                                 402(d)(7) (age 19) and
                                                                 5 U.S.C. 8101(17) (age
                                                                 23); and defines a
                                                                 disabled child as one
                                                                 whose disability began
                                                                 before the age
                                                                 specified in 42 U.S.C.
                                                                 402(d) (age 22). 30
                                                                 U.S.C.
                                                                 922(a)(5)(1)(A), BLBA
                                                                 criteria for
                                                                 entitlement for a
                                                                 minor's ``brother''
                                                                 using same criteria
                                                                 applicable to
                                                                 ``child''.
19. Black Lung Benefits..............  Black Lung Benefits      This sec. defines who    20 CFR 725.301.
                                        Act, 30 U.S.C. 901-945.  may file a benefits
                                                                 claim. Persons aged 18
                                                                 or older may file
                                                                 claims on their own
                                                                 behalf, while persons
                                                                 under age 18 generally
                                                                 must rely on an
                                                                 authorized individual
                                                                 to file the claim
                                                                 (with a limited
                                                                 exception for certain
                                                                 persons between 16 and
                                                                 18 years of age).
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[FR Doc. 04-7006 Filed 4-1-04; 8:45 am]
BILLING CODE 4510-23-P