[Code of Federal Regulations]
[Title 44, Volume 1]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 44CFR7]
[Page 64-79]
TITLE 44--EMERGENCY MANAGEMENT AND ASSISTANCE
CHAPTER I--FEDERAL EMERGENCY MANAGEMENT AGENCY
PART 7--NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS (FEMA REG. 5)
Subpart A--Nondiscrimination in FEMA Programs--General
Sec.
7.1 Purpose.
7.2 Definitions.
7.3 Application of this regulation.
7.4 Further application of this regulation.
7.5 Specific discriminatory actions prohibited.
7.6 Life, health, and safety.
7.7 Assurances required.
7.8 Elementary and secondary schools.
7.9 Assurances from institutions.
7.10 Compliance information.
7.11 Conduct of investigations.
7.12 Procedure for effecting compliance.
7.13 Hearings.
7.14 Decisions and notices.
7.15 Judicial review.
7.16 Effect on other regulations; forms and instructions.
Subparts B-D [Reserved]
Subpart E--Nondiscrimination on the Basis of Age in FEMA Program
Activities Receiving Federal Financial Assistance
General
7.910 What is the purpose of the Age Discrimination Act of 1975?
7.911 What is the purpose of FEMA's age discrimination regulation?
7.912 To what programs does this regulation apply?
7.913 Definition of terms used in this regulation.
Standards for Determining Age Discrimination
7.920 Rules against age discrimination.
7.921 Exceptions to the rules against age discrimination: Normal
operation or statutory objective of any program or activity.
7.922 Exceptions to the rules against age discrimination: Reasonable
factors other than age.
7.923 Burden of proof for exceptions.
7.924 Affirmative action by recipient.
7.925 Special benefits for children and the elderly.
7.926 Age distinctions contained in FEMA regulations.
[[Page 65]]
Duties of FEMA Recipients
7.930 General responsibilities.
7.931 Notice to subrecipients and beneficiaries.
7.932 Assurance of compliance and recipient assessment of age
distinctions.
7.933 Information requirement.
Investigation, Conciliation, and Enforcement Procedures
7.940 Compliance reviews.
7.941 Complaints.
7.942 Mediation.
7.943 Investigation.
7.944 Prohibition against intimidation or retaliation.
7.945 Compliance procedure.
7.946 Hearings, decisions, post-termination proceedings.
7.947 Remedial action by recipient.
7.948 Alternate funds disbursal procedure.
7.949 Exhaustion of administrative remedies.
Source: 30 FR 321, Jan. 9, 1965, unless otherwise noted.
Redesignated at 45 FR 44575, July 1, 1980.
Subpart A--Nondiscrimination in FEMA Programs--General
Authority: FEMA Reg. 5 issued under sec. 602, 78 Stat. 252; 42
U.S.C. 2000 d-1; 42 U.S.C. 1855-1885g; 50 U.S.C. 404.
Source: 30 FR 321, Jan. 9, 1965, unless otherwise noted.
Redesignated at 45 FR 44575, July 1, 1980, and further redesignated at
55 FR 23078, June 6, 1990.
Sec. 7.1 Purpose.
The purpose of this regulation 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 Federal Emergency Management Agency.
Sec. 7.2 Definitions.
As used in this regulation:
(a) The term responsible agency official with respect to any program
receiving Federal financial assistance means the Director of the Federal
Emergency Management Agency or other official of the agency who by law
or by delegation has the principal responsibility within the agency for
the administration of the law extending such assistance.
(b) 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.
(c) The term Federal financial assistance includes (1) grants and
loans of Federal funds, (2) the grant or donation of Federal property
and interests in 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.
(d) 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,
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
[[Page 66]]
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.
(e) The term facility includes all or any portion of structure,
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.
(f) 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, 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.
(g) 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.
(h) The term applicant means one who submits an application,
request, or plan required to be approved by a responsible agency
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. 7.3 Application of this regulation.
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 by those
receiving assistance under the ``Federal Disaster Assistance'' program
(Pub. L. 81-875; 42 U.S.C. 1855-1855g), or under the ``Interim Emergency
Management of Resources'' program (section 103 of the National Security
Act of 1947; Pub. L. 80-253, as amended; 50 U.S.C. 404).
Sec. 7.4 Further application of this regulation.
This regulation applies to any program for which Federal financial
assistance is authorized under a law administered by the Federal
Emergency Management Agency. It applies to money paid, property
transferred, or other Federal financial assistance extended under any
such program 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 under any such program before the effective date of
this regulation, (c) any assistance to any individual who is the
ultimate beneficiary under any such program, or (d) any employment
practice, under such program, of any employer, employment agency, or
labor organization.
(Reorganization Plan No. 3 of 1978, E.O. 12127 and E.O. 12148)
[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, as
amended at 48 FR 44543, Sept. 29, 1983]
Sec. 7.5 Specific discriminatory actions prohibited.
(a) A recipient under any program to which this regulation applies
may not, directly or through contractual or other arrangements, on
ground of race, color, or national origin:
(1) Deny any individual any service, financial aid, or other benefit
provided under the program;
(2) 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;
(3) 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;
(4) 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;
[[Page 67]]
(5) 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;
(6) 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.
(b) 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.
(c) 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 benefit
provided in or through a facility provided with the aid of Federal
financial assistance.
(d) The enumeration of specific forms of prohibited discrimination
in this section does not limit the generality of the prohibition in
section 4.
Sec. 7.6 Life, health, and safety.
Notwithstanding the provisions of section 5, a recipient of Federal
financial assistance shall not be deemed to have failed to comply with
section 3, if immediate provision of a service or other benefit to an
individual is necessary to prevent his death or serious impairment of
his health or safety.
Sec. 7.7 Assurances required.
Every application for Federal financial assistance to carry out a
program to which this regulation 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
regulation. 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 the case of a subsequent transfer,
the transferee, for the period during which the real property or
structures are used for a purpose for which the 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 agency official shall specify the form of the foregoing
assurances for each program, and the extent to which like assurances
will be required of subgrantee, 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.
Sec. 7.8 Elementary and secondary schools.
The requirements of section 7 with respect to any elementary or
secondary school or school system shall be deemed to be satisfied if
such school or school system (a) 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,
including any future modification of such order, or (b) submits a plan
for the desegregation of such school or
[[Page 68]]
school system which the United States Commissioner of Education
determines is adequate to accomplish the purpose of the Act and this
regulation, and provides reasonable assurance that it will carry out
such plans; in any case of continuing Federal financial assistance the
responsible agency 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 this regulation. In any case to
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.
Sec. 7.9 Assurances from institutions.
(a) In the case of any application for Federal financial assistance
to an institution of higher education, the assurance required by section
7 shall extend to admission practices and to all other practices
relating to the treatment of students.
(b) The assurances 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 as students, patients, or clients of the
institutions or to the opportunity to participate in the provision of
services or other benefits to such individuals, shall be applicable to
the entire institution unless the applicant establishes, to the
satisfaction of the Director of the Federal Emergency Management Agency
that the institution's practices in designated parts or programs of the
institution will in no way affect its practices in the program 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 or part of a
facility, the assurance shall in any event extend to the entire facility
and to facilities operated in connection therewith.
Sec. 7.10 Compliance information.
(a) Cooperation and assistance. The responsible official in the
Federal Emergency Management Agency shall to the fullest extent
practicable seek the cooperation of recipients in obtaining compliance
with this regulation and shall provide assistance and guidance to
recipients to help them comply voluntarily with this regulation.
(b) Compliance reports. Each recipient shall keep such records and
submit to the responsible agency official or his designee timely,
complete, and accurate compliance reports at such times, and in such
form and containing such information, as the responsible agency official
or his designee may determine to be necessary to enable him to ascertain
whether the recipient has complied or is complying with this regulation.
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 regulation.
(c) Access to sources of information. Each recipient shall permit
access by the responsible agency 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 regulation. Where any information
required of a recipient is in the exclusive possession of any other
agency, institution or person and this 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.
(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 under which the
recipient receives Federal financial assistance, and make such
information available to them in such manner, as the responsible agency
official finds necessary to apprise such persons of the protection
[[Page 69]]
against discrimination assured them by the Act and this regulation.
Sec. 7.11 Conduct of investigations.
(a) Periodic compliance reviews. The responsible agency official or
his designee shall from time to time review the practices of recipients
to determine whether they are complying with this regulation.
(b) Complaints. Any person who believes himself or any specific
class of individuals to be subjected to discrimination prohibited by
this regulation may by himself or by a representative file a written
complaint with the National Headquarters or any Regional Office of the
Federal Emergency Management Agency. A complaint 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 agency official or his
designee.
(c) Investigations. The responsible agency 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 regulation. 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 regulation occurred, and other factors relevant to a determination
as to whether the recipient has failed to comply with this regulation.
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
regulation, the responsible agency official or his designee will so
inform the recipient and the matter will be resolved by informal means
whenever possible. If it has been determined that the matter cannot be
resolved by informal means, action will be taken as provided for in
section 12.
(2) If an investigation does not warrant action pursuant to
paragraph (d)(1) of this section the responsible agency 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 regulation, or
because he has made a complaint, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this
regulation. The identity of complainants shall be kept confidential
except to the extent necessary to carry out the purposes of this
regulation, including the conduct of any investigation, hearing, or
judicial proceeding arising thereunder.
[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and
further redesignated at 55 FR 23078, June 6, 1990, as amended at 64 FR
38309, July 16, 1999]
Sec. 7.12 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 regulation 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 section 7. If an applicant fails or refuses
to furnish an assurance required under section 7 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 agency shall not be
required to provide assistance in such a case during the pendency of the
administrative proceedings under such paragraph except that the agency
shall continue assistance during the pendency of such proceedings where
such
[[Page 70]]
assistance is due and payable pursuant to an application thereof
approved prior to the effective date of this regulation.
(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 agency 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 regulation, (3) the action has been approved by the
Director of the Federal Emergency Management Agency pursuant to section
14, and (4) the expiration of 30 days after the Director 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 agency official has determined that compliance cannot be
secured by voluntary means, (2) the action has been approved by the
Director of the Federal Emergency Management Agency, (3) the recipient
or other person has been notified of its failure to comply and of the
action to be taken to effect compliance, and (4) the expiration of 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 and to take such corrective action as may be appropriate.
Sec. 7.13 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by section 12(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 either
(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
agency 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 under this subsection or to
appear at 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
section 12(c) of this regulation and consent to the making of a decision
on the basis of such information as is available.
(b) Time and place of hearing. Hearings shall be held at the
National Headquarters of the Federal Emergency Management Agency in
Washington, DC, at a time fixed by the responsible agency official
unless he determines that the convenience of the applicant or recipient
or of the agency requires that another place be selected. Hearings shall
be held before the responsible agency official or, at his discretion,
before a hearing examiner designated in accordance with section 11 of
the Administrative Procedure Act.
[[Page 71]]
(c) Right to counsel. In all proceedings under this section, the
applicant or recipient and the agency 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 agency 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.
(2) Technical rules of evidence shall not apply to hearings
conducted pursuant to this regulation, 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 regulation
applies, or noncompliance with this regulation and the regulations of
one or more other Federal departments or agencies issued under title VI
of the Act, the Director of the Federal Emergency Management Agency may,
by agreement with such other departments or agencies where applicable,
provide for the conduct of consolidated or joint hearings, and for the
application to such hearings of rules of procedures not inconsistent
with this regulation. Final decisions in such cases, insofar as this
regulation is concerned, shall be made in accordance with section 14.
Sec. 7.14 Decisions and notices.
(a) Decision by person other than the responsible agency official.
If the hearing is held by a hearing examiner such hearing examiner shall
either make an initial decision, if so authorized, or certify the entire
record including his recommended findings and proposed decision to the
responsible agency official for a final decision, and a copy of such
initial decision or certification shall be mailed to the applicant or
recipient. Where the initial decision is made by the hearing examiner
the applicant or recipient may within 30 days of the mailing of such
notice of initial decision file with the responsible agency official his
exceptions to the initial decision, with his reasons therefor. In the
absence of exceptions, the responsible agency official may on his own
motion within 45 days after the initial decision serve on the applicant
or recipient a notice that he will review the decision. Upon the filing
of such exceptions or of such notice of review the responsible agency
official shall review the initial decision and issue his own decision
thereon including the reasons therefor. In the absence of either
exceptions or a notice of review the initial decision shall constitute
the final decision of the responsible agency official.
(b) Decisions on record or review by the responsible agency
official. Whenever a record is certified to the responsible agency
official for decision or he reviews the decision of a hearing examiner
pursuant to paragraph (a) of this section, or whenever he conducts the
hearing, the applicant or recipient shall be given reasonable
opportunity to file with him briefs or other written statements of its
contentions, and a copy of his final decision shall be given in writing
to the applicant or recipient and to the complainant, if any.
[[Page 72]]
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to section 13(a) a decision shall be made by
the responsible agency official on the record and 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 a hearing officer or
responsible agency official shall set forth his ruling on each finding,
conclusion, or exception presented, and shall identify the requirement
or requirements imposed by or pursuant to this regulation with which it
is found that the applicant or recipient has failed to comply.
(e) Approval by Director. Any final decision of a responsible agency
official (other than the Director of the agency) which provides for the
suspension or termination of, or the refusal to grant or continue
Federal financial assistance, or the imposition of any other sanction
available under this regulation or the Act, shall promptly be
transmitted to the Director of the Federal Emergency Management Agency
who may approve such decision, may vacate it, or remit or mitigate any
sanction imposed.
(f) Content of orders. The final decision may provide for suspension
or termination of, or refusal to grant or continue Federal financial
assistance, in whole or in part, under the program involved, 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 provisions designed to assure that no Federal financial
assistance will thereafter be extended under such program 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 Director of the
Federal Emergency Management Agency that it will fully comply with this
regulation.
Sec. 7.15 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. 7.16 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 Federal Emergency
Management Agency 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 such assistance under such program 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 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 Executive Orders 10925 and 11114 (including future amendments
thereof) and regulations issued thereunder, or any other regulations or
instructions, insofar as such regulations or instructions prohibit
discrimination on the ground of race, color, or national origin in any
program or situation to which this regulation is inapplicable, or
prohibit discrimination on any other ground.
(b) Forms and instructions. Each responsible agency official shall
issue and promptly make available to interested persons forms and
detailed instructions and procedures for effectuating this regulation as
applied to programs to which this regulation applies and for which he is
responsible.
(c) Supervision and coordination. The Director of the Federal
Emergency Management Agency 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 final decision as provided in section
[[Page 73]]
14), including the achievement of effective coordination and maximum
uniformity within the agency and within the Executive Branch of the
Government in the application of title VI and this regulation to similar
programs and in similar situations.
Subparts B-D [Reserved]
Subpart E--Nondiscrimination on the Basis of Age in FEMA Program
Activities Receiving Federal Financial Assistance
Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C.
26101 et seq. (45 CFR part 90).
Source: 55 FR 23078, June 6, 1990, unless otherwise noted.
General
Sec. 7.910 What is the purpose of the Age Discrimination Act of 1975?
The Age Discrimination Act of 1975 (the ``Act''), as amended, is
designed to prohibit discrimination on the basis of age in programs or
activities receiving Federal financial assistance. The Act also permits
federally-assisted programs and activities, and recipients of Federal
funds, to continue to use certain age distinctions and factors other
than age which meet the requirements of the Act and this regulation.
Sec. 7.911 What is the purpose of FEMA's age discrimination regulation?
The purpose of this regulation is to set out FEMA's policies and
procedures under the Age Discrimination Act of 1975 and the general
governmentwide regulations, 45 CFR part 90. The Act and the general
regulations prohibit discrimination on the basis of age in programs or
activities receiving Federal financial assistance. The Act and the
general regulations permit federally-assisted programs, activities, and
recipients of Federal funds, to continue to use age distinctions and
factors other than age which meet the requirements of the Act and its
implementing regulations.
Sec. 7.912 To what programs does this regulation apply?
(a) The Act and this regulation apply to each FEMA recipient and to
each program or activity operated by the recipient which receives or
benefits from Federal financial assistance provided by FEMA.
(b) The Act and this regulation do 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 which:
(i) Provides any benefits or assistance to persons 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 apprenticeship
training program, except for any program or activity receiving Federal
financial assistance for public service employment under the Job
Training Partnership Act (29 U.S.C. 150, et seq.)
Sec. 7.913 Definition of terms used in this regulation.
As used in this regulation, the term Act means the Age
Discrimination Act of 1975 as amended (title III of Pub. L. 94-135).
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 which necessarily imply a
particular age or range of ages (for example, children, older persons,
but not student).
Agency means the Federal Emergency Management Agency.
Director means the Director of the Federal Emergency Management
Agency.
Federal financial assistance means any grant, entitlement, loan,
cooperative
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agreement, contract (other than a procurement contract or a contract of
insurance or guaranty), or any other arrangement by which the agency
provides or otherwise makes available assistance in the form of:
(a) Funds; or
(b) Services or Federal personnel; or
(c) Real and personal property or any interest in or use of
property, including:
(1) Transfers or leases of property for less than fair market value
or for reduced consideration; and
(2) 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.
Normal operation means the operation of a program or activity
without significant changes that would impair its ability to meet its
objective.
Recipient means any State or its political subdivision, any
instrumentality of a State or its political subdivision, institution,
organization, or other entity, or any person to which Federal financial
assistance is extended, directly or through another recipient. Recipient
includes any successor, assignee, or transferee, but excludes the
ultimate beneficiary of the assistance.
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.
Subrecipient means any of the entities in the definition of
``recipient'' to which a recipient extends or passes on Federal
financial assistance. A subrecipient is generally regarded as a
recipient of Federal financial assistance and has all the duties of a
recipient in these regulations.
United States includes the States of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands,
American Samoa, Guam, the Commonwealth of the Northern Mariana Islands,
Wake Island, the Canal Zone, the Trust Territory of the Pacific Islands
and all other territories and possessions of the United States. The term
``State'' also includes any one of the foregoing.
Standards for Determining Age Discrimination
Sec. 7.920 Rules against discrimination.
The rules stated in this section are limited by the exceptions
contained in Secs. 7.921 and 7.922 of these regulations.
(a) General rule: No person in the United States shall, on the basis
of age, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under, any program or activity receiving
Federal financial assistance.
(b) Specific rules: A recipient may not, in any program or activity
receiving Federal financial assistance, directly or through contractual
licensing, or other arrangements, use age distinctions or take any other
actions which have the effect, on the basis of age, of:
(1) Excluding individuals from, denying them the benefits of,
subjecting them to discrimination under, a program or activity receiving
Federal financial assistance; or
(2) Denying or limiting individuals in their opportunity to
participate in any program or activity receiving Federal financial
assistance. The specific forms of age discrimination listed in paragraph
(b) of this section do not necessarily constitute a complete list.
Sec. 7.921 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. 7.920, if the action reasonably takes into account age as a factor
necessary to the normal operation of the achievement of any statutory
objective of a program or activity. An action reasonably takes into
account age as a factor necessary to the normal operation or the
achievement of any statutory objective of a program or activity, if:
(a) Age is used as a measure or approximation of one or more other
characteristics; and
(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; and
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(c) The other characteristic(s) can be reasonably measured or
approximated by the use of age; and
(d) The other characteristic(s) are impractical to measure directly
on an individual basis.
Sec. 7.922 Exceptions to the rules against age discrimination:
Reasonable factors other than age.
A recipient is permitted to take an action otherwise prohibited by
Sec. 7.920 which is based on a factor other than age, even though that
action may have a disproportionate effect on persons of different ages
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. 7.923 Burden of proof for exceptions.
The burden of proving that an age distinction or other action falls
within the exceptions outlined in Secs. 7.921 and 7.922 is on the
recipient of Federal financial assistance.
Sec. 7.924 Affirmative action by recipient.
Even in the absence of a finding of discrimination, a recipient may
take affirmative action to overcome the effects of conditions that
resulted in the limited participation in the recipient's program or
activity on the basis of age.
Sec. 7.925 Special benefits for children and the elderly.
If a recipient operating a program provides special benefits to the
elderly or to children, such use of age distinctions shall be presumed
to be necessary to the normal operation of the program, notwithstanding
the provisions of Sec. 7.921.
Sec. 7.926 Age distinctions contained in FEMA regulations.
Any age distinctions contained in a rule or regulation issued by
FEMA shall be presumed to be necessary to the achievement of a statutory
objective of the program to which the rule or regulation applies,
notwithstanding the provisions of Sec. 7.921.
Duties of FEMA Recipients
Sec. 7.930 General responsibilities.
Each FEMA recipient has primary responsibility to ensure that its
programs and activities are in compliance with the Act and this
regulation, and shall take steps to eliminate violations of the Act. A
recipient also has responsibility to maintain records, provide
information, and to afford FEMA access to its records to the extent FEMA
finds necessary to determine whether the recipient is in compliance with
the Act and this regulation.
Sec. 7.931 Notice to subrecipients and beneficiaries.
(a) Where a recipient passes on Federal financial assistance from
FEMA to subrecipients, the recipient shall provide the subrecipients
written notice of their obligations under the Act and this regulation.
(b) Each recipient shall make necessary information about the Act
and this regulation available to its program beneficiaries in order to
inform them about the protection against discrimination provided by the
Act and this regulation.
Sec. 7.932 Assurance of compliance and recipient assessment of age
distinctions.
(a) Each recipient of Federal financial assistance from FEMA shall
sign a written assurance as specified by FEMA that it will comply with
Act and this regulation.
(b) Recipient assessment of age distinctions. (1) As part of the
compliance review under Sec. 7.940 or complaint investigation under
Sec. 7.943, FEMA may require a recipient employing the equivalent of
fifteen or more employees to complete written evaluation, in a manner
specified by the responsible Agency official, of any age distinction
imposed in its program or activity receiving Federal financial
assistance from FEMA to assess the recipient's compliance with the Act.
(2) Whenever an assessment indicates a violation of the Act and the
FEMA regulations, the recipient shall take corrective action.
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Sec. 7.933 Information requirement.
Each recipient shall:
(a) Keep records in a form acceptable to FEMA and containing
information which FEMA determines are necessary to ascertain whether the
recipient is complying with the Act and this regulation.
(b) Provide to FEMA, upon request, information and reports which
FEMA determines are necessary to ascertain whether the recipient is
complying with the Act and this regulation.
(c) Permit FEMA reasonable access to the books, records, accounts,
and other recipient facilities and sources of information to the extent
FEMA determines is necessary to ascertain whether the recipient is
complying with the Act and this regulation.
Investigation, Conciliation, and Enforcement Procedures
Sec. 7.940 Compliance reviews.
(a) FEMA may conduct compliance reviews and preaward reviews or use
other similar procedures that will permit it to investigate and correct
violations of the Act and this regulation. FEMA may conduct these
reviews even in the absence of a complaint against a recipient. The
reviews may be as comprehensive as necessary to determine whether a
violation of the Act and this regulation has occurred.
(b) If a compliance review or preaward review indicates a violation
of the Act or this regulation, FEMA will attempt to achieve voluntary
compliance with the Act. If voluntary compliance cannot be achieved,
FEMA will arrange for enforcement as described in Sec. 7.945.
Sec. 7.941 Complaints.
(a) Any person, individually or as a member of a class or on behalf
of others, may file a complaint with FEMA, alleging discrimination
prohibited by the Act or these regulations occurring after the date of
final adoption of this rule. A complainant shall file a complaint within
180 days from the date the complainant first had knowledge of the
alleged act of discrimination. However, for good cause showing, FEMA may
extend this time limit.
(b) FEMA will consider the date a complaint is filed to be the date
upon which the complaint is sufficient to be processed. A complaint is
deemed ``sufficient'' when it contains particulars (e.g., names,
addresses, and telephone numbers of parties involved; date(s) of alleged
discrimination; kind(s) of alleged discrimination) upon which to begin
an investigation.
(c) FEMA will attempt to facilitate the filing of complaints
wherever possible, including taking the following measures:
(1) Accepting as a sufficient complaint any written statement which
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 permitting a complainant to add information to the
complaint to meet the requirements of a sufficient complaint.
(3) Notifying 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.
(4) Notifying the complainant and the recipient (or their
representatives) of their right to contact FEMA for information and
assistance regarding the complaint resolution process.
(d) FEMA will return to the complainant any complaint outside the
jurisdiction of this regulation, and will state the reason(s) why it is
outside the jurisdiction of this regulation.
Sec. 7.942 Mediation.
(a) FEMA will promptly refer to a mediation agency designated by the
Director all sufficient complaints that:
(1) Fall within the jurisdiction of the Act and this regulation,
unless the age distinction complained of is clearly within an exception;
and,
(2) Contain all information necessary for further processing.
(b) Both the complainant and the recipient shall participate in the
mediation process to the extent necessary to reach an agreement or for
the mediator to make an informed judgment that an agreement is not
possible.
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(c) If the complainant and the recipient reach an agreement, the
mediator shall prepare a written statement of the agreement and have the
complainant and the recipient sign it. The mediator shall send a copy of
the agreement to FEMA. FEMA will take no further action on the complaint
unless the complainant or the recipient fails to comply with the
agreement.
(d) The mediator shall protect the confidentiality of all
information obtained in the course of the mediation process. No mediator
shall testify in any adjudicative proceeding, produce any document, or
otherwise disclose any information obtained in the course of the
mediation process without prior approval of the head of the mediation
agency.
(e) The mediation will proceed for a maximum of 60 days after a
complaint is filed with FEMA. Mediation ends if:
(1) Sixty days elapse from the time the complaint is filed; or
(2) Prior to the end of that 60 day period, an agreement is reached;
or
(3) Prior to the end of that 60 day period, the mediator determines
that an agreement cannot be reached. This 60 day period may be extended
by the mediator, with the concurrence of FEMA, for not more than 30 days
if the mediator determines agreement will likely be reached during such
extended period.
(f) The mediator shall return unresolved complaints to FEMA.
Sec. 7.943 Investigation.
(a) Informal investigation. (1) FEMA will investigate complaints
that are unresolved after mediation or are reopened because of a
violation of a mediation agreement.
(2) As part of the initial investigation, FEMA will use informal
fact finding methods, including joint or separate discussion with the
complainant and recipient, to establish the facts and, if possible,
settle the complaint on terms that are mutually agreeable to the
parties. FEMA may seek the assistance of any involved state program
agency.
(3) FEMA will put any agreement in writing and have it signed by the
parties and an authorized official at FEMA.
(4) The settlement shall not affect the operation of any other
enforcement effort of FEMA, including compliance reviews and
investigation of other complaints which may involve the recipient.
(5) The settlement is not a finding of discrimination against a
recipient.
(b) Formal investigation. If FEMA cannot resolve the complaint
through informal investigation, it will begin to develop formal findings
through further investigation of the complaint. If the investigation
indicates a violation of this regulation, FEMA will attempt to obtain
voluntary compliance, it will begin enforcement as described in
Sec. 7.945.
Sec. 7.944 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
regulation; or
(b) Cooperates in any mediation, investigation, hearing, or other
part of FEMA's investigation, conciliation and enforcement process.
Sec. 7.945 Compliance procedure.
(a) FEMA may enforce the Act and this regulation through:
(1) Termination of a recipient's Federal financial assistance from
FEMA under the program or activity involved where the recipient has
violated the Act or this regulation. The determination of the
recipient's violation may be made 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 obligations of the recipient created
by the Act or this regulation.
(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 regulation.
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(b) FEMA will limit any termination under Sec. 7.945(a)(1) to the
particular recipient and particular program or activity or part of such
program and activity FEMA finds in violation of this regulation. FEMA
will not base any part of a termination on a finding with respect to any
program or activity of the recipient which does not receive Federal
financial assistance from FEMA.
(c) FEMA will take no action under paragraph (a) until:
(1) The Director has advised the recipient of its failure to comply
with the Act and this regulation and has determined that voluntary
compliance cannot be obtained.
(2) Thirty days have elapsed after the Director has sent a written
report of the circumstances and grounds of the action to the committees
of the Congress having legislative jurisdiction over the Federal program
or activity involved. The Director will file a report whenever any
action is taken under paragraph (a).
(d) FEMA also may defer granting new Federal financial assistance
from FEMA to a recipient when a hearing under Sec. 7.945(a)(1) is
initiated.
(1) New Federal financial assistance from FEMA includes all
assistance for which FEMA 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 FEMA does not include increases in funding as a result of changed
computation of formula awards or assistance approved prior to the
beginning of a hearing under Sec. 7.945(a)(1).
(2) FEMA will not begin a deferral until the recipient has received
a notice of an opportunity for a hearing under Sec. 7.945(a)(1). FEMA
will not continue a deferral for more than 60 days unless a hearing has
begun within that time or the time for beginning the hearing has been
extended by mutual consent of the recipient for more than 30 days after
the close of the hearing, unless the hearing results in a finding
against the recipient.
(3) FEMA will limit any deferral to the particular recipient and
particular program or activity or part of such program or activity FEMA
finds in violation of this regulation. FEMA will not base any part of a
deferral on a finding with respect to any program or activity of the
recipient which does not and would not, in connection with new funds,
receive Federal financial assistance from FEMA.
Sec. 7.946 Hearings, decisions, post-termination proceedings.
Certain FEMA procedural provisions applicable to title VI of the
Civil Rights Act of 1964 apply to FEMA enforcement of this regulation.
They are found at 44 CFR 7.10 through 7.16.
Sec. 7.947 Remedial action by recipient.
Where FEMA finds a recipient has discriminated on the basis of age,
the recipient shall take any remedial action that FEMA may require to
overcome the effects of the discrimination. If another recipient
exercises control over the recipient that had discriminated, FEMA may
require both recipients to take remedial action.
Sec. 7.948 Alternate funds disbursal procedure.
(a) When FEMA withholds funds from recipient under this regulation,
the Director may, if allowable under the statute governing the
assistance, disburse the withheld funds directly to an alternate
recipient: Any public or nonprofit private organization or agency, or
State or political subdivision of the State.
(b) The Director will require any alternate recipient to
demonstrate:
(1) The ability to comply with this regulation; and
(2) The ability to achieve the goals of the Federal statute
authorizing the program or activity.
Sec. 7.949 Exhaustion of administrative remedies.
(a) A complainant may file a civil action following the exhaustion
of administrative remedies under the Act. Administrative remedies are
exhausted if:
(1) 180 days have elapsed since the complainant filed the complaint
and FEMA had made no finding with regard to the complaint; or
(2) FEMA issues any finding in favor of the recipient.
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(b) If FEMA fails to make a finding within 180 days or issues a
finding in favor of the recipient, FEMA shall:
(1) Promptly advise the complainant in writing of this fact; and
(2) Advise the complainant of his or her right to bring a civil
action for injunctive relief; and
(3) Inform the complainant:
(i) That the complainant may bring a civil action only in a United
States District Court for the district in which the recipient is located
or transacts business;
(ii) That a complainant prevailing 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
at the time it is filed.
(iii) That before commencing the action, the complainant shall give
30 days notice by registered mail to the Director, the Attorney General
of the United States, and the recipient;
(iv) That the notice 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 the
complainant prevails; and
(v) That 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 (Federal or State) of the United States.