PART 80-NONDISCRIMINATION UNDER PROGRAMS RECEIVING FEDERAL ASSISTANCE THROUGH THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
Sec.
80.1 Purpose.
80.2 Application of this regulation.
80.3
Discrimination prohibited.
80.4 Assurances required.
80.5
Illustrative applications.
80.6 Compliance information.
80.7
Conduct of investigations.
80.8 Procedure for effecting compliance.
80.9 Hearings.
80.10 Decision and notices.
80.11 Judicial
review.
80.12 Effect on the other regulations; forms and
instructions.
80.13 Definitions.
Appendix A: Federal financial
assistance to which these regulations apply.
Authority: The provisions of this Part 80 issued under Sec. 602, 78 Stat. 252; 42 U.S.C. 2000d-1, unless otherwise noted.
Source: The provisions of this Part 80 appear at 29 F.R. 16298, Dec. 4, 1964; 29 F.R. 16988, Dec. 11, 1964; 30 F.R. 35, Jan. 5, 1965 unless otherwise noted.
§ 80.1 Purpose.
The purpose of this part is to effectuate the provisions of Title VI of the Civil Rights Act of 1964 (hereafter referred to as the "Act") to the end that no person in the United States shall; on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from the Department of Health, Education, and Welfare.
(Sec. 601, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d) [29 FR 16298, Dec. 4, 1964, as amended at 38 FR 17982, July 5, 1973]
§ 80.2 Application of this regulation.
This regulation applies to any program for which Federal financial assistance is authorized to be extended to a recipient under a law administered by the Department, including the Federal assisted programs and activities listed in Appendix A of this regulation. It applies to money paid, property transferred, or other Federal financial assistance extended after the effective date of the regulation pursuant to an application approved prior to such effective date. This regulation does not apply to (a) any Federal financial assistance by way of insurance or guaranty contracts, (b) money paid, property transferred, or other assistance extended before the effective date of this regulation, (c) the use of any assistance by any individual who is the ultimate beneficiary under any such program, or any such program, or (d) any employment practice, under any such program, or any employer, employment agency, or labor organization, except to the extent described in § 80.3. The fact that a type of Federal assistance is not listed in Appendix A shall not mean, if Title VI of the Act is otherwise applicable, that a program is not covered. Federal financial assistance under status now in force or hereinafter enacted may added to this list by notice published in the Federal Register.
(Secs. 602, 604, Civil Rights Act of 1964; 78 Stat. 252, 253; 42 U.S.C. 2000d-1, 2000d-3) [38 FR 17979, July 5, 1973]
§80.3 Discrimination prohibited.
(a) General.
No person in the United States shall, on the ground of race, color, or
national origin be excluded from participation in, be denied the
benefits of, or be otherwise subjected to discrimination under any
program to which this part applies.
(b) Specific
discriminatory actions prohibited. (1) A recipient under any
program to which this part applies may not, directly or through
contractual or other arrangements, on ground of race, color, or national
origin:
(i) Deny an individual any service, financial aid, or
other benefit provided in a different manner, from that provided under
the program;
(ii) Provide any service, financial aid, or other
benefit to an individual which is different, or is provided in a
different manner, from that provided to others under the program;
(iii) Subject an individual to segregation or separate treatment in any
matter related to his receipt of any service, financial aid, or other
benefit under the program;
(iv) Restrict an individual in any way
in the enjoyment of any advantage or privilege enjoyed by others
receiving any service, financial aid, or other benefit under the
program;
(v) Treat an individual differently from others in
determining whether he satisfies any admission, enrollment, quota,
eligibility, membership or other requirement or condition which
individuals must meet in order to be provided any service, financial
aid, or other benefit provided under the program;
(vi) Deny an
individual an opportunity to participate in the program through the
provision of services or otherwise or afford him an opportunity to do so
which is different from that afforded others under the program
(including the opportunity to participate in the program as an employee
but only to the extent set forth in paragraph (c) of this section).
(vii) Deny a person the opportunity to participate as a member of a
planning or advisory body which is an integral part of the program.
(2) A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program, or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.
(3) In determining the site or location of a facilities, an applicant or recipient may not make selections with the effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any programs to which this regulation applies, on the ground of race, color, or national origin, or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or this regulation.
(4) As used in this section, the services, financial aid, or other benefits provided under a program receiving Federal financial assistance shall be deemed to include any service, financial aid, or other benefits provided in or through a facility provided with the aid of Federal financial assistance.
(5) The enumeration of specific forms of prohibited discrimination in this paragraph and paragraph (c) of this section does not limit the generality of the prohibition in paragraph (a) of this section.
(6) (i) In administering a program regarding which the
recipient has previously discriminated against persons on the ground of
race, color, or national origin, the recipient must take affirmative
action to overcome the effects of prior discriminations.
(ii) Even
in the absence of such prior discrimination, a recipient in
administering a program may take affirmative action to overcome the
effects of conditions which resulted in limiting participation by
persons of a particular race, color, or national origin.
(c)
Employment practices. (1) Where a primary objective of the
Federal financial assistance to a program to which this regulation
applies is to provide employment, a recipient may not (directly or
through contractual or other arrangements) subject an individual to
discrimination on the ground of race, color, or national origin in its
employment practices under such program (including recruitment or
recruitment advertising, employment, layoff or termination, upgrading,
demotion, or transfer, rates of pay or other forms of compensation, and
use of facilities), including programs where a primary objective of the
Federal financial assistance is (i) to reduce the unemployment of such
individuals or to help them through employment to meet subsistence
needs, (ii) to assist such individuals through employment to meet
expenses incident to the commencement or continuation of their education
or training, (iii) to provide work experience which contributes to the
education or training of such individuals, or (iv) to provide
remunerative activity to such individuals who because of handicaps
cannot be readily absorbed in the competitive labor market. The
following, under existing laws, have one of the above objectives as a
primary objective:
(a) Projects under the Public Works Acceleration
Act of 1963, Public Law 87-658, 42 U.S.C. 2641-2643.
(b) Work-study
under the Vocational Education Act of 1963, as amended, 20 U.S.C.
1371-1374.
(c) Programs assisted under laws listed in Appendix A as
respects employment opportunities provided thereunder, or in facilities
provided thereunder, which are limited, or for which preference is
given, to students, fellows, or other persons in training for the same
or related employments.
(d) Assistance to rehabilitation facilities
under the Vocational Rehabilitation Act, 29 U.S.C. 32-34, 41a and 41b.
(2) The requirements applicable to construction employment under
any such program shall be those specified in or pursuant to Part III of
Executive Order 11246 or any Executive Order which supersedes it.
(3) Where a primary objective of the Federal financial assistance is not
to provide employment, but discrimination on the ground of race, color,
or national origin, in the employment practices of the recipient or
other persons subject to the subject to the regulation tends, on the
ground of race, color, or national origin, to exclude individuals from
participation in, to deny them benefits of, or to subject them to
discrimination under any program to which this regulation applies, the
foregoing provisions of this paragraph (c) shall apply to employment
practices of the recipient or other persons subject to the subject to
the regulation, to the extent necessary to assure equality of
opportunity to, and nondiscriminatory treatment of, beneficiaries.
(d) Indian Health and Cuban Refugee Services. An
individual shall not be deemed subjected to discrimination by reason of
his exclusion from the benefits of a program limited by Federal law to
individuals of a particular race, color, or national origin different
from his.
(e) Medical Emergencies.
Notwithstanding the foregoing provision of this section, a recipient of
Federal financial assistance shall not be deemed to have failed to
comply with paragraph (a) of this section if immediate provision of a
service or other benefit to an individual is necessary to prevent his
death or serious impairment of his health, and such service or other
benefit cannot be provided except by or through a medical institution
which refuses or fails to comply with paragraphs (a) of this section.
(Secs. 601, 602, 604, Civil Rights Act of 1964; 78 Stat. 252, 253, 42 U.S.C. 2000d, 2000d-1, 2000d-3) [29 FR 16298, Dec. 4, 1964, as amended at 38 FR 17979, 17982, July 5, 1973]
§ 80.4 Assurances required.
(a) General. (1) Every application for Federal financial assistance to carry out a program to which this part applies, except a program to which paragraph (b) of this section applies, and every application for Federal financial assistance to provide a facility shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to the application, contain or be accompanied by an assurance that the program will be conducted or the facility operated in compliance with all requirements imposed by or pursuant to this part. In the case of an application for Federal financial assistance to provide real property or structures thereon, the assurance shall obligate the recipient, or, in case of a subsequent transfer, the transferee, for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. In the case of personal property the assurance shall obligate the recipient for the period during which he retains ownership or possession of the property. In all other cases the assurance shall obligate the recipient for the period during which Federal financial assistance is extended pursuant to the application. The responsible Department official shall specify the form of the foregoing assurances for each program, and the extent to which like assurances will be required of subgrantees, contractors and subcontractors, transferees, successors in interest, and other participants in the program. Any such assurance shall include provisions which give the United States a right to seek its judicial enforcement.
(2) Where Federal financial assistance is provided in the form of a
transfer of real property or interest therein from the Federal
Government the instrument effecting or recording the transfer shall
contain a covenant running with the land to assure nondiscrimination for
the period during which the real property is used for a purpose for
which the Federal financial assistance is extended or for another
purpose involving the provision of similar services or benefits. Where
no transfer of property is involved but property is improved with
Federal financial assistance, the recipient shall agree to include such
a covenant to any subsequent transfer of the property. Where the
property is obtained from the Federal Government, such covenant may also
include a condition coupled with a right to be reserved by the
Department to revert title to the property in the event of a breach of
the covenant where, in the discretion of the responsible Department
official, such a condition and right of reverter is appropriate to the
statute under which the real property is obtained and to the nature of
the grant and the grantee. In the event a transferee of real property
proposes to mortgage or otherwise encumber the real property as security
for financing construction of new, or improvement of existing,
facilities on such property for the purposes for which the property was
transferred, the responsible Department official may agree, upon request
of the transferee and if necessary to accomplish such financing, and
upon such conditions as he deems appropriate, to forebear the exercise
of such right to revert title for so long as the lien of such mortgage
or other encumbrance remains effective.
(b) Continuing
State programs. Every application by a State or a State agency
to carry out a program involving continuing Federal financial assistance
to which this regulation applies (including the Federal financial
assistance listed in Part 2 of Appendix A) shall as a condition to its
approval and the extension of any Federal financial assistance pursuant
to the application (1) contain or be accompanied by a statement that the
program is (or, in the case of a new program, will be) conducted in
compliance with all requirements imposed by or pursuant to this
regulation, and (2) provide or be accompanied by provision for such
methods of administration for the program as are found by the
responsible Department official to give reasonable assurance that the
applicant and all recipients of Federal financial assistance under such
program will comply with all requirements imposed by or pursuant to this
regulation.
(c) Elementary and secondary schools.
The requirements of paragraph (a) or (b) of this section with
respect to any elementary or secondary school or school system shall be
deemed to be satisfied if such school or school system (1) is subject to
a final order of a court of the United States for the desegregation of
such school or school system, and provides an assurance that it will
comply with such order, or (2) submits a plan for the desegregation of
such school or school system which the responsible Department official
determines is adequate to accomplish the purposes of the Act and this
part, at the earliest practicable time, and provides reasonable
assurance that it will carry out such plan; in any case of continuing
Federal financial assistance the responsible Department official may
reserve the right to redetermine, after such period as may be specified
by him, the adequacy of the plan to accomplish the purposes of the Act
and the regulation in this part. In any case in which a final order of a
court of the United States for the desegregation of such school or
school system is entered after submission of such a plan, such plan
shall be revised to conform to such final order, including any future
modification of such order.
(d) Assurance from institutions. (1) In the case
of any application for Federal financial assistance to an institution of
higher education (including assistance for construction, for research,
for special training project, for student loans for any other purpose),
the assurance required by this section shall extend to admission
practices and to all other practices relating to the treatment of
students. (2) The assurance required with respect to an institution of
higher education, hospital, or any other institution, insofar as the
assurance relates to the institution's practices with respect to
admission or other treatment of individuals, shall be applicable to the
entire institution unless the applicant establishes, to the satisfaction
of the responsible Department official, that the institution will in no
way affect its practices in designated parts or programs of the
institution for which Federal financial assistance is sought, or the
beneficiaries of or participants in such program. If in any such case
the assistance sought is for the construction of a facility, the
assurance shall in any event extend to the entire facility and to
facilities operated in connection therewith.
(Sec. 601, 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d, 2000d-1. Sec. 182; 80 Stat. 1209; 42 U.S.C. 2000d-5)[29 FR 16298, Dec. 4, 1964, as amended at 32 FR 14555, Oct. 19, 9167; 38 FR 17930, 17982, July 5, 1973]
§ 80.5 Illustrative application.
The following examples will illustrate the programs aided by
Federal financial assistance of the Department. (In all cases the
discrimination prohibited is discrimination on the ground of race,
color, or national origin prohibited by Title VI of the Act and this
regulation, as a condition of the receipt of Federal financial
assistance).
(a) In Federally assisted programs
for the provision of health or welfare services, discrimination in the
selection or eligibility of individuals to receive the services, and
segregation or other discriminatory practices in the manner of providing
them, are prohibited. This prohibition extends to all facilities and
services provided by the grantee under the program or, if the grantee is
a State, by a political subdivision of the State. It extends also to
services purchased or otherwise obtained by the grantee (or political
subdivision) from hospitals, nursing homes, schools, and similar
institutions for beneficiaries of the program, and to the facilities in
which such services are provided, subject however, to the provisions of
§ 80.3(e).
(b) In Federally-affected
area assistance (P.L. 815 and P.L. 874) for construction aid and for
general support of the operation of elementary or secondary schools, or
in more limited support to such schools such as for the acquisition of
equipment, the provision of vocational education, or the provision of
guidance and counseling services, discrimination by the recipient school
district in any of its elementary or secondary schools in the admission
of students, or in treatment of its students in any aspect of the
educational process, is prohibited. In this and the following
illustrations the prohibition of discrimination in the treatment of
students or other trainees includes prohibitions of discrimination among
students or trainees the availability or use any academic, dormitory,
eating, recreational, or other facilities of the grantee or other
recipient.
(c) In a research, training,
demonstration, or other grant to a university for activities to be
conducted in a graduate school, discrimination in the admission and
treatment of students in the graduate school is prohibited, and the
prohibition extends to the entire university unless it satisfies the
responsible Department official that practices with respect to other
parts or programs of the university will not interfere, directly or
indirectly, with fulfillment of the assurance required with respect to
the graduate school.
(d) In a training grant to a
hospital or other nonacademic institution, discrimination is prohibited
in the selection of individuals to be trained and in their treatment by
the grantee during their training. In a research or demonstration grant
to such an institution discrimination is prohibited with respect to any
educational activity and any provision of medical or other services and
any financial aid to individuals incident to the program.
(e)
In grants to assist in the construction of facilities for the
provision of health, educational or welfare services, assurances will be
required that services will be provided without discrimination, to the
same extent that discrimination would be prohibited as a condition of
Federal operating grants for the support of such services. Thus, as a
condition of grants for the construction of academic, research, or other
facilities at institutions of higher education, assurances will be
required that there will be no discrimination in the admission or
treatment of students. In case of hospital construction grants the
assurance will apply to patients, to interns, residents, students
nurses, and other trainees, and to the privilege of physicians,
dentists, and other professionally qualified persons to practice in the
hospital, and will apply to the entire facility for which, or for a part
of which, the grant is made, and to facilities operated in connection
therewith. In other construction grants the assurances required will
similarly be adapted to the nature of the activities to be conducted in
the facilities for construction of which the grants have been authorized
by Congress.
(f) Upon transfers of real or
personal surplus property for health or educational uses, discrimination
is prohibited to the same extent as in the case of grants for the
construction of facilities or the provision of equipment for like
purposes.
(g) Each applicant for a grant for the
construction of educational television facilities is required to provide
an assurance that it will, in its broadcast services, give due
consideration to the interests of all significant racial or ethnic
groups within the population to be served by the applicant.
(h) A recipient may not take action that is calculated to bring
about indirectly what this regulations forbids it to accomplish
directly. Thus, a State, in selecting or approving projects or sites for
the construction of public libraries which will receive Federal
financial assistance, may not base its selections or approvals on
criteria which have the effect of defeating or of substantially
impairing accomplishments of the objectives of the Federal assistance as
respects individuals of a particular race, color, or national origin.
(i) In some situations, even though past discriminatory practices
attributable to a recipient or applicant have been abandoned, the
consequences of such practices continue to impede the full availability
of a benefit. If the efforts required of the applicant or recipient
under § 80.6(d), to provide information as to the availability of
the program or activity and the rights of beneficiaries under this
regulation, have failed to overcome these consequences, it will become
necessary under the requirement stated in (i) of § 80.3(b)(6) for
such applicant or recipient to take additional steps to make the
benefits fully available to racial and nationally groups previously
subject to discrimination. This action might take the form, for example,
of special arrangements for obtaining referrals or making selections
which will insure that groups previously subjected to discrimination are
adequately served.
(j) Even though an applicant
or recipient has never used discriminatory policies, the services and
benefits of the program or activity it administers may not in fact be
equally available to some racial or nationally recipient may properly
give special consideration to race, color, or national origin to make
the benefits of its program more widely available to such groups, not
then being adequately served. For example, where a university is not
adequately serving members of a particular racial or nationally group,it
may establish special recruitment policies to make its program better
known and more readily available to such group, and take another group
with more adequate service.
(Sec. 601, 60, Civil Rights Act of 1964; 78 Stat. 25; 42 U.S.C. 2000d, 2000d-1)[29 FR 16298, Dec. 4, 1964, as amended at 38 FR 17980, 17982, July 5, 1973.]
§80.6 Compliance information.
(a) Cooperation and
assistance. The responsible Department official shall to the
fullest extent practicable seek the cooperation of recipients in
obtaining compliance with this part and shall provide assistance and
guidance to recipients to help them comply voluntarily with this part.
(b) Compliance reports. Each recipient shall keep
such records and submit to the responsible Department official or his
designee timely, complete and accurate compliance reports at such times,
and in such form and containing such information, as the responsible
Department official or his designee may determine to be necessary to
enable him to ascertain whether the recipient has complied or is
complying with this part. For example, recipients should have available
for the Department racial and ethnic data showing the extent to which
members of minority groups are beneficiaries of and participants in
Federally-assisted programs. In the case of any program under which a
primary recipient extends Federal financial assistance to any other
recipient, such other recipient shall also submit such compliance
reports to the primary recipient as may be necessary to enable the
primary recipient to carry out its obligations under this part.
(c) Access to sources of information. Each recipient shall
permit access by the responsible Department official or his designee
during normal business hours to such of its books, records, accounts,
and other sources of information, and its facilities as may be pertinent
to ascertain compliance with this part. Where any information required
of a recipient is in the exclusive possession of any other agency,
institution or person shall fail or refuse to furnish this information
the recipient shall so certify in its report and shall set forth what
efforts it has made to obtain the information. Asserted considerations
of privacy or confidentially may operate to bar the Department from
evaluating or seeking to enforce compliance with this Part. Information
of a confidential nature obtained in connection with compliance
evaluation or enforcement shall not be disclosed except where necessary
in formal enforcement proceedings or where otherwise required by law.
(d) Information to beneficiaries and participants.
Each recipient shall make available to participants, beneficiaries, and
other interested persons such information regarding the provisions of
this regulation and its applicability to the program for which the
recipient receives Federal financial assistance, and make such
information available to them in such manner, as the responsible
Department official finds necessary to apprise such persons of the
protections against discrimination assured them by the Act and this
regulation.
(Sec. 601, 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d, 2000d-1) [29 FR 16298, Dec. 4, 1964, as amended at 32 FR 4555, Oct. 19, 1967; 38 FR 17981, 17982, July 5, 1973]
§ 80.7 Conduct of investigations.
(a)
Periodic compliance reviews. The responsible Department
official or his designee shall from time to time review the practices of
recipients to determine whether they are complying with this part.
b) Complaints. Any person who believes himself or any specific
class of individuals to be subjected to discrimination prohibited by
this part may be himself or by a representative file with the
responsible Department official or his designee a written complaint. A
compliant must be filed not later than 180 days from the date of the
alleged discrimination, unless the time for filing is extended by the
responsible Department official or his designee.
(c)
Investigations. The responsible Department official or his
designee will make a prompt investigation whenever a compliance review,
report, complaint, or any other information indicates a possible failure
to comply with this part. The investigation should include, where
appropriate, a review of the pertinent practices and policies of the
recipient, the circumstances under which the possible noncompliance with
this part occurred, and other factors relevant to a determination as to
whether the recipient has failed to comply with this part.
(d)
Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
part, the responsible Department official or his designee will so
informal the recipient and the matter will be resolved by informal means
whenever possible. If it has been determine that the matter cannot be
resolved by information means, action will be taken as provided for in
§ 80.8.
(2) If an investigation does not warrant action
pursuant to subparagraph (1) of this paragraph the responsible
Department official or his designee will so inform the recipient and the
complainant, if any, in writing.
(e) Intimidatory or
retaliatory acts prohibited. No recipient or other person shall
intimidate, threaten, coerce, or discriminate against any individual for
the purpose of interfering with any right or privilege secured by
Section 601 of the Act or this part, or because he has made a complaint,
testified, assisted, or participated in any manner in an investigation,
proceeding or hearing under this part. The identity of complainants
shall be kept confidential except to the extent necessary to carry out
the purposes of this part, including the conduct of any investigation,
hearing, or judicial proceeding arising thereunder.
(Sec. 601, 602,
Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d, 2000d-1) [29 FR
16298, Dec. 4, 1964, as amended at 38 FR 17981, 17982, July 5, 1973]
§ 80.8 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened
failure to comply with this regulation, and if the noncompliance or
threatened noncompliance cannot be corrected by informal means,
compliance with this part may be effected by the suspension or
termination of or refusal to grant or to continue Federal financial
assistance or by any other means authorized by law. Such other means may
include, but are not limited to, (1) a reference to the Department of
Justice with a recommendation that appropriate proceedings be brought to
enforce any rights of the United States under any law of the United
States (including other titles of the Act), or any assurance or other
contractual undertaking, and (2) any applicable proceeding under State
or local law.
(b) Noncompliance with§ 80.4.
If an applicant fails or refuses to furnish under § 80.4 or
otherwise fails or refuses to comply with a requirement imposed by or
pursuant to that section Federal financial assistance may be refused in
accordance with the procedures of paragraph (c) of this section. The
Department shall not be required to provide assistance in such a case
during the pendency of the administrative proceedings under such
paragraph except that the Department shall continue assistance during
the pendency of such proceedings where such assistance is due and
payable pursuant to an application therefor approved prior to the
effective date of this part.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. No order suspending, terminating or refusing to
grant or continue Federal financial assistance shall become
effective until (1) the responsible Department official has advised the
applicant or recipient of his failure to comply and has determined that
compliance cannot be secured by voluntary means, (2) there has been an
express finding on the record, after opportunity for hearing, of a
failure by the applicant or recipient to comply with a requirement
imposed by or pursuant to this part, (3) the expiration of 30 days after
the Secretary has filed with the committee of the House and the
committee of the Senate having legislative jurisdiction over the program
involved, a full written report of the circumstances and the grounds for
such action. Any action to suspend or terminate or to refuse to grant or
to continue Federal financial assistance shall be limited to the
particular political entity, or part thereof, or other applicant or
recipient as to whom such a finding has been made and shall be limited
in its effect to the particular program, or part thereof, in which such
noncompliance has been so found.
(d) Other means
authorized by law. No action to effect compliance by any other
means authorized by law shall be taken until (1) the responsible
Department official has determined that compliance cannot be secured by
voluntary means, (2) the recipient or other person has been notified of
its failure to comply and of the action to be taken to effect
compliance, and (3) the expiration at least 10 days from the mailing of
such notice to the recipient or other person. During this period of at
least 10 days additional efforts shall be made to persuade the recipient
or other person to comply with the regulation or other person to comply
with the regulation and to take such corrective action as may be
appropriate.
(Sec. 601, 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d, 2000d-1, Sec. 182, 80 Stat. 1209; 42 U.S.C. 2000d-5) [29 FR 16298, Dec. 4, 1964, as amended at 32 FR 14556, Oct. 19, 1967; 38 FR 17982, July 5, 1973]
§ 80.9 Hearings.
(a) Opportunity for hearing. Whenever an
opportunity for a hearing is required by §80.8(c), reasonable
notice shall be given by registered or certified mail, return receipt
requested, to the affected applicant or recipient. This notice shall
advise the applicant or recipient of the action proposed to be taken,
the specific provision under which the proposed action against it is to
be taken and the matters of fact or law asserted as the basis for this
action, and wither (1) fix a date not less than 20 days after the date
of such notice within which the applicant or recipient may request of
the responsible Department official that the matter be scheduled for
hearing or (2) advise the applicant or recipient that the matter in
question has been set down for hearing at a stated place and time. The
time and place so fixed shall be reasonable and shall be subject to
change for cause. The complainant, if any, shall be advised of the time
and place of the hearing. An applicant or recipient may waive a hearing
and submit written information and argument for the record. The failure
of an applicant or recipient to request a hearing for which a date has
been set shall be deemed to be a waiver of the right to a hearing under
Section 602 of the Act and § 80.8(c) of this regulation and consent
to the making of a decision on the basis of such information as may be
filed as the record.
(b) Time and place of hearing.
Hearings shall be held at the offices of the Department in Washington,
D.C., at the time fixed by the responsible Department official unless he
determines that the convenience of the applicant or recipient or of the
Department requires that another place be selected. Hearings shall be
held before a hearing examiner designated in accordance with 5 U.S.C.
3105 and 3344 (section 11 of the Administrative Procedure Act.)
(c) Right to counsel. In all proceedings under this
section, the applicant or recipient and the Department shall have the
right to be represented by counsel. (d) Procedures, evidence, and
record. (1) The hearing, decision, and any administrative review thereof
shall be conducted in conformity with sections 5-8 of the Administrative
Procedure Act, and in accordance with such rules of procedure as are
proper (and not inconsistent with this section) relating to the conduct
of the hearing, giving of notices subsequent to those provided for in
paragraph (a) of this section, taking of testimony, exhibits, arguments,
and briefs, requests for findings, and other related matters. Both the
Department and the applicant or recipient shall be entitled to introduce
all relevant evidence on the issues as stated in the notice for hearing
or as determined by the officer conducting the hearing at the outset of
or during the hearing. Any person (other that a Government employee
considered to be on official business) who, having been invited or
requested to appear and testify as a witness on the Government's behalf,
attends at a time and place scheduled for a hearing provided for by this
part, may be reimbursed for his travel and actual expenses of attendance
in an amount not to exceed the amount payable under the standardized
travel regulations to a Government employee traveling on official
business.
(2) Technical rules of evidence shall not apply to
hearings conducted pursuant to this part, but rules or principles
designed to assure production of the most credible evidence available
and to subject testimony to test by cross-examination shall be applied
where reasonably necessary by the officer conducting the hearing. The
hearing officer may exclude irrelevant, immaterial, or unduly
repetitious evidence. All documents and other evidence offered or taken
for the record shall be open to examination by the parties and
opportunity shall be given to refute facts and arguments advanced on
either side of the issues. A transcript shall be made of the oral
evidence except to the extent the substance thereof is stipulated for
the record. All decisions shall be based upon the hearing record and
written findings shall be made.
(e) Consolidated or Joint
Hearings. In cases in which the same or related facts are
asserted to constitute noncompliance with this regulation with respect
to two or more programs to which this part applies, or noncompliance
with this part and the regulations of one or more other Federal
departments or agencies issued under Title VI of the Act, the
responsible Department official may, by agreement with such departments
or agencies where applicable. provide for the conduct of consolidated or
joint hearings of rules of procedures not inconsistent with this part.
Final decisions in such cases, insofar as this regulation is concerned,
shall be made in accordance with § 80.10.
(Sec. 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d-1) [29 FR 16298, Dec. 4, 1964, as amended at 32 FR 14555, Oct. 19, 196; 38 FR 17981, 17982, July 5, 1973]
§ 80.10 Decisions and notices.
(a) Decisions by hearing examiners. After a hearing
is held by a hearing examiner such hearing examiner shall either make an
initial decision, if so authorized, or certify the entire recording
including his recommended findings and proposed decision to the
reviewing authority for a final decision, and a copy of such initial
decision or certification shall be mailed to the applicant or recipient
and to the complainant, if any. Where the initial decision referred to
in this paragraph or in paragraph (c) of this section is made by the
hearing examiner, the applicant or recipient or the counsel for the
Department may, within the period provided for in the rules of procedure
issued by the responsible Department official, file with the reviewing
authority shall review the initial decision, with his reasons therefor.
Upon the filing of such exceptions the reviewing authority shall review
the initial decision and issue its own decision thereof including the
reasons therefor. In the absence of exceptions the initial decision
shall constitute the final decision, subject to the provisions of
paragraph (e) of this section.
(b) Decisions on record or
review by the reviewing authority. Whenever a record is
certified to the reviewing authority for decision or it reviews the
decision of a hearing examiner pursuant to paragraph (a) or (c) of this
section, the applicant or recipient shall be given reasonable
opportunity to file with it briefs or other written statements of its
contentions, and a copy of the final decision of the reviewing authority
shall be given in writing to the applicant or recipient and to the
complainant, if any.
(c) Decisions on record where a
hearing is waived. Whenever a hearing is waived pursuant to
§ 80.9(a) the reviewing authority shall make its final decision on
the record or refer the matter to a hearing examiner for an initial
decision to be made on the record. A copy of such decision shall be
given in writing to the applicant or recipient, and to the complainant,
if any.
(d) Rulings required. Each decision of hearing
examiner or reviewing authority shall set forth a ruling on each
finding, conclusion, or exception presented, and shall identify the
requirement or requirements imposed by or pursuant to this part with
which it is found that the applicant or recipient has failed to comply.
(e) Review in certain cases by the Secretary. If
the Secretary has not personally made the final decision referred to in
paragraphs (a), (b), or (c) of this section, a recipient or applicant or
the counsel for the Department may request the Secretary to review a
decision of the Reviewing Authority in accordance with rules of
procedure issued by the responsible Department official. Such review is
not a matter of right and shall be granted only where the Secretary
determines there are special and important reasons therefor. The
Secretary may grant or deny such request, in whole or in part. He may
also review such a decision upon his own motion in accordance with rules
of procedure issued by the responsible Department official. In the
absence of a review under this paragraph, a final decision referred in
paragraphs (a), (b), (c) of this section shall become the final decision
of the Department when the Secretary transmits it as such to
Congressional committees with the report required under Section 60 of
the Act. Failure of an applicant or recipient to file an exception with
the Reviewing Authority or to request review under this paragraph shall
not be deemed a failure to exhaust administrative remedies for the
purpose of obtaining judicial review.
(f) Content of
orders. The final decision may provide for decision may provide
for suspension or termination of, or refusal to grant or continue
Federal financial assistance, in whole or in part, to which this
regulation applies, and may contain such terms, conditions, and other
provisions as are consistent with and will effectuate the purposes of
the Act and this regulation, including provision designed to assure that
no Federal financial assistance to which this regulation applies will
thereafter be extended under such law or laws to the applicant or
recipient determined by such decision to be in default in its
performance of an assurance given by it pursuant to this regulation, or
to have otherwise failed to comply with this regulation unless and until
it corrects its noncompliance and satisfies the responsible Department
official that it will fully comply with this regulation.
(g)
Post-termination proceedings. (1) An applicant or recipient
adversely affected by an order issued under paragraph (f) of this
section shall be restored to full eligibility to receive Federal
financial assistance if it satisfies the terms and conditions of that
order for such eligibility or if it brings itself into compliance with
this part and provides reasonable assurances that it will fully comply
with this part. An elementary or secondary school or school system which
is unable to file an assurance of compliance with § 80.3 shall be
restored to full eligibility to receive Federal financial assistance, if
it files a court order or a plan for desegregation which meets the
requirements of § 80.4(c), and provides reasonable assurance that
it will comply with the court order or plan.
(2) Any applicant or
recipient adversely affected by an order entered pursuant to paragraph
(f) of this section may at any time request the responsible Department
official to restore fully its eligibility to receive Federal financial
assistance. Any such request shall be supported by information showing
that the applicant or recipient has met the requirements of subparagraph
(1) of the paragraph. If the responsible Department official determines
that those requirements have been satisfied, he shall restore such
eligibility.
(3) If the responsible Department official denies any
such request, the applicant or recipient may submit a request for a
hearing in writing, specifying why it believes such official to have
been in error. It shall thereupon given an expeditious hearing, with a
decision on the record, in accordance with rules of procedure issued by
the responsible Department official. The applicant or recipient will be
restored to such eligibility if it proves at such hearing that it
satisfied the requirements of subparagraph (1) of this paragraph . While
proceedings under this paragraph are pending, the sanctions imposed by
the order issued under paragraph (f) of this section shall remain in
effect.
(Sec. 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d-1) [29 FR 16298, Dec. 4, 1964, as amended at 32 FR 14555, Oct. 19, 1967; 38 FR 17981, 17982, July 5, 1973]
§80.11 Judicial review.
Action taken pursuant to section 602 of the Act is subject to judicial review as provided in section 603 of the Act.
(Sec. 603, 78 Stat. 253; 42 U.S.C. 2000d-2) [29 F.R. 16298, Dec. 4, 1964, as amended at 32 F.R. 14555, Oct. 19, 1967]
§ 80.12 Effect on other regulations, forms, and instructions.
(a) Effect on other regulations. All regulations, orders, or like
directions heretofore issued by any officer of the Department which
impose requirements designed to prohibit any discrimination against
individuals on the ground of race, color, or national origin under any
program to which this regulation applies, and which authorize the
suspension or termination of or refusal to grant or to continue Federal
financial assistance to any applicant for or recipient of assistance for
failure to comply with such requirements, are hereby superseded to the
extent that such discrimination is prohibited by this regulation, except
that nothing in this regulation shall be deemed to relieve any person of
any obligation assumed or imposed under any person of any such
superseded regulation, order, instruction, or like direction prior to
the effective date of this regulation. Nothing in this regulation,
however, shall be deemed to supersede any of the following (including
future amendments thereof): (1) The "Standards for a Merit System of
Personnel Administration," issued jointly by the Secretaries of Defense,
of Health, Education, and Welfare, and of Labor, 45 CFR Part 70; (2)
Executive Order 11063 and regulations issued thereunder, or any other
regulations or instructions, insofar as such Order, regulations, or
instructions prohibit discrimination on the ground of race, color, or
national origin in any program or situation to which this regulation in
inapplicable, or prohibit discrimination on any other ground; or (3)
requirements for Emergency School Assistance as published in 35 FR 13442
and codified as 45 CFR Part 181.
(b) Forms and
instructions. The responsible Department official shall issue
and promptly make available to interested persons forms and detailed
instructions and procedures for effectuating this part.
(c)
Supervision and coordination. The responsible Department
official may from time to time assign to officials of other departments
or agencies of the Government with the consent of such departments or
agencies, responsibilities in connection with the effectuation of the
purposes of Title VI of the Act and this regulation (other than
responsibility for review as provided in § 80.10(e)), including the
achievements of effective coordination and maximum uniformity within the
Department and within the Executive Branch of the Government in the
application of Title VI and this regulation to similar programs and in
similar situations. Any action taken, determination made, or requirement
imposed by an official of another Department or Agency acting pursuant
to an assignment of responsibility under this subsection shall have the
same effect as though such action had been taken by the responsible
official of this Department
(Sec. 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d- 1) [29 FR 16298, Dec. 4, 1964, as amended at 32 FR 14555, Oct. 19, 1967; 38 FR 17981, July 5, 1973]
§ 80.13 Definitions.
As used in this part-
(a) The term "Department" means the Department of
Health and Human Services, and includes each of its operating agencies
and other organizational units.
(b) The term "Secretary" means the Secretary of
Health, Education, and Welfare.
(c) The term
"responsible Department official" means the Secretary or, to the extent
of any delegation by the Secretary of authority to act in his stead
under any one or more provisions of this part, any person or persons to
whom the Secretary has heretofore delegated, or to whom the Secretary
may hereafter delegate such authority.
(d) The
term "reviewing authority" means the Secretary, or any person or persons
(including a board or other body specially created for that purpose and
also including the responsible Department official) acting pursuant to
authority delegated by the Secretary to carry out responsibilities under
§ 80.10(a)-(d).
(e) The term "United States"
means the States of the United States, the District of Columbia, Puerto
Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal
Zone, and the territories and possessions of the United States, and the
term "State" means any one of the foregoing.
(f) The
term "Federal financial assistance" includes (1) grants and loans of
Federal funds, (2) the grant or donation of Federal property, (3) the
detail of Federal personnel, (4) the sale and lease of, and the
permission to use (on other than a casual or transient basis), Federal
property or any interest in such property without consideration or at a
nominal consideration, or at a consideration which is reduced for the
purpose of assisting the recipient, or in recognition of the public
interest to be served by such sale or lease to the recipient, and (5)
any Federal agreement, arrangement, or other contract which has as one
of its purposes the provision of assistance.
(g) The
term "program" includes any program, project, or activity for the
provision of services, financial aid, or other benefits to individuals
(including education or training, health, welfare, rehabilitation,
housing, or other services, whether provided through employees of the
recipient of Federal financial assistance or provided by others through
contracts or other arrangements with the recipient, and including work
opportunities and cash or loan or other assistance to individuals), or
for the provision of facilities for furnishing services, financial aid
or other benefits to individuals. The services, a financial aid or other
benefits provided under a program receiving Federal financial assistance
shall be deemed to include any services, financial aid or other benefits
provided with the aid of Federal financial assistance or with the aid of
any non-Federal funds, property, or other resources required to be
expended or made available for the program to meet matching requirements
or other conditions which must be met in order to receive the Federal
financial assistance, and to include any services, financial aid, or
other benefits provided in or through a facility provided with the aid
of Federal financial assistance or such non-Federal resources.
(h) The "facility" includes all or any portion of structures,
equipment, or other real or personal property or interests therein, and
the provision of facilities includes the construction, expansion,
renovation, remodeling, alteration or acquisition of facilities.
(i) The term "recipient" means any State, political
subdivision of any State, or instrumentality of any State or political
subdivision, any public or private agency, institution, or organization,
or other entity, or any individual, in any State, to whom Federal
financial assistance is extended, or directly or through another
recipient, for any program, including any successor, assign, or
transferee thereof, but such term does not include any ultimate
beneficiary under any such program.
(j) The term
"primary recipient" means any recipient which is authorized or required
to extend Federal financial assistance to another recipient for the
purpose of carrying out a program.
(k) The term
"applicant" means one who submits an application, request, or plan,
required to be approved by a Department official, or by a primary
recipient, as a condition to eligibility for Federal financial
assistance, and the term "application" means such an application,
request, or plan.
(Sec. 602, Civil Rights Act of 1964; 78 Stat. 252; 42 U.S.C. 2000d- 1) [29 FR 16298, Dec. 4, 1964, as amended at 32 FR 14555, Oct. 19, 1967; 38 FR 17982, July 5, 1973]