PRA Supplementary #13

Office of the Secretary of Labor

Pt. 34

(m) The Department may delegate its
authority for conducting complaint investigations to other Federal agencies,
except that the authority for making
the final determination may not be
delegated.
(n) The Director shall respond to requests by the Architectural and Transportation Barriers Compliance Board
for information on the status of any
complaint alleging that buildings that
are subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C.
4151–4157), or section 502 of the Rehabilitation Act of 1973, as amended (29
U.S.C. 792), are not readily accessible
and usable to individuals with handicaps.
[52 FR 11606, Apr. 9, 1987; 52 FR 23967, June 26,
1987]

§ 33.13 Intimidation and retaliation
prohibited.
No person may discharge, intimidate,
retaliate, threaten, coerce or otherwise
discriminate against any person because such person has filed a complaint, furnished information, assisted
or participated in any manner in an investigation, review, hearing or any
other activity related to the administration of, or exercise of authority
under, or privilege secured by section
504 and the regulations in this part.

PART 34—IMPLEMENTATION OF THE
NONDISCRIMINATION
AND
EQUAL OPPORTUNITY REQUIREMENTS OF THE JOB TRAINING
PARTNERSHIP ACT OF 1982, AS
AMENDED (JTPA)

34.9

Designation of responsible office; rulings and interpretations.
34.10 [Reserved]
34.11 Effect of other obligations or limitations.
34.12 Delegation and coordination.

Subpart B—Recordkeeping and Other
Affirmative Obligations of Recipients
34.20 Assurance required; duration of obligation; covenants.
34.21 Equitable services.
34.22 Designation of Equal Opportunity Officer.
34.23 Dissemination of policy.
34.24 Data and information collection; confidentiality.

Subpart C—Governor’s Responsibilities to
Implement the Nondiscrimination and
Equal Opportunity Requirements of
JTPA
34.30
34.31
34.32
34.33
34.34

Application.
Recordkeeping.
Oversight and liability.
Methods of Administration.
Monitoring.

Subpart D—Compliance Procedures
34.40 Compliance reviews.
34.41 Notice to Show Cause.
34.42 Adoption of discrimination complaint
processing procedures.
34.43 Complaints and investigations.
34.44 Corrective and remedial action.
34.45 Notice of violation; written assurances; Conciliation Agreements.
34.46 Final Determination.
34.47 Notice of finding of noncompliance.
34.48 Notification of Breach of Conciliation
Agreement.

Subpart E—Federal Procedures for
Effecting Compliance

Subpart A—General Provisions
Sec.
34.1 Purpose; application.
34.2 Definitions.
34.3 Discrimination prohibited.
34.4 Specific discriminatory actions prohibited on the ground of race, color, religion, sex, national origin, age, political
affiliation or belief, citizenship, or participation in JTPA.
34.5 Specific discriminatory actions prohibited on the ground of disability.
34.6 Communications with individuals with
disabilities.
34.7 Employment practices.
34.8 Intimidation and retaliation prohibited.

34.50 General.
34.51 Hearings.
34.52 Decision and post-termination proceedings.
34.53 Suspension, termination, denial or discontinuance of Federal financial assistance under JTPA; alternate funds disbursal procedure.
AUTHORITY: 20 U.S.C. 1681; 29 U.S.C. 794,
1501, 1551, 1573, 1574, 1575, 1576, 1577, 1578, 1579;
42 U.S.C. 2000d et seq., 6101.
SOURCE: 58 FR 4750, Jan. 15, 1993, unless
otherwise noted.

351

§ 34.1

29 CFR Subtitle A (7–1–98 Edition)

Subpart A—General Provisions
§ 34.1 Purpose; application.
(a) Purpose. The purpose of this part
is to implement the nondiscrimination
and equal opportunity provisions of the
Job Training Partnership Act of 1982,
as amended (JTPA), which are contained in section 167 of JTPA. Section
167 prohibits discrimination on the
grounds of race, color, religion, sex, national origin, age, disability, political
affiliation or belief, and for beneficiaries only, citizenship or participation in JTPA. This part clarifies the
application of the nondiscrimination
and equal opportunity provisions of
JTPA and provides uniform procedures
for implementing them.
(b) Application of this part. This part
applies to any recipient, as defined in
§ 34.2. This part also applies to the employment practices of a recipient, as
provided in § 34.7.
(c) Effect of this part on other obligations.
(1) A recipient’s compliance with this
part shall satisfy any obligation of the
recipient to comply with 29 CFR part
31, implementing title VI of the Civil
Rights Act of 1964, as amended (title
VI), and with subparts A, D and E of 29
CFR part 32, implementing section 504
of the Rehabilitation Act of 1973, as
amended (section 504).
(2) However, compliance with this
part shall not affect any obligation of
the recipient to comply with subparts
B and C and appendix A of 29 CFR part
32, which pertain to employment practices and employment-related training,
program accessibility, and accommodations under section 504.
(3) Recipients that are also public entities or public accommodations as defined by titles II and III of the Americans with Disabilities Act of 1991
(ADA), should be aware of obligations
imposed pursuant to those titles.
(4) Compliance with this part does
not affect, in any way, any obligation
that a recipient may have to comply
with Executive Order 11246, as amended, section 503 of the Rehabilitation
Act of 1973, as amended (29 U.S.C. 793),
the affirmative action provisions of the
Vietnam Era Veterans’ Readjustment
Assistance Act of 1974, as amended (38
U.S.C. 4212), the Equal Pay Act of 1963,

as amended (29 U.S.C. 206d), title VII of
the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act of
1967, as amended (29 U.S.C. 621), title IX
of the Education Amendments of 1972,
as amended (20 U.S.C. 1681), the Americans with Disabilities Act of 1990
(ADA) (42 U.S.C. 12101 et seq.) and their
respective implementing regulations.
(5) This rule does not preempt consistent State and local requirements.
(6) The rule generally codifies and
consolidates already existing nondiscrimination and equal opportunity
requirements. However, to the extent
that this rule imposes any new requirements, it is not intended to have retroactive effect.
(d) Limitation of Application. This part
does not apply to:
(1) Programs or activities funded by
the Department exclusively under laws
other than JTPA;
(2) Contracts of insurance or guaranty;
(3) Federal financial assistance to a
person who is the ultimate beneficiary
under any program;
(4) Federal procurement contracts,
with the exception of contracts to operate or provide services to Job Corps
Centers; and
(5) Federally-operated Job Corps Centers. The operating Department is responsible for enforcing the nondiscrimination and equal opportunity
laws to which such Centers are subject.
§ 34.2 Definitions.
As used in this part, the term:
Administrative Law Judge means a person appointed as provided in 5 U.S.C.
3105 and 5 CFR 930.203 and qualified
under 5 U.S.C. 557 to preside at hearings held under the nondiscrimination
and equal opportunity provisions of
JTPA and this part.
Applicant means the person or persons seeking JTPA services who have
filed a completed application and for
whom a formal eligibility determination has been made. For State Employment Security Agency (SESA) programs, applicant means the person or
persons who make(s) application to receive benefits or services from the
State employment service agency or
the State unemployment compensation

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§ 34.2

agency. See also the definitions of eligible applicant and participant in this section.
Applicant for employment means the
person or persons who make(s) application for employment with a recipient
of Federal financial assistance under
JTPA.
Application for assistance means the
process by which required documentation is provided to the Governor, recipient, or Department prior to and as a
condition of receiving Federal financial
assistance under JTPA (including both
new and continuing assistance).
Application for benefits means the
process by which written information
is provided by applicants or eligible applicants prior to and as a condition of
receiving benefits or services from a recipient of financial assistance from the
Department of Labor under JTPA.
Assistant Attorney General means the
Assistant Attorney General, Civil
Rights Division, United States Department of Justice.
Assistant Secretary means the Assistant Secretary for Administration and
Management, United States Department of Labor.
Auxiliary aids or services includes—
(1) Qualified interpreters, notetakers,
transcription services, written materials, telephone handset amplifiers, assistive listening systems, telephones
compatible with hearing aids, closed
caption decoders, open and closed captioning, telecommunications devices
for deaf persons (TDDs), videotext displays, or other effective means of making aurally delivered materials available to individuals with hearing impairments;
(2) Qualified readers, taped texts,
audio recordings, brailled materials,
large print materials, or other effective
means of making visually delivered
materials available to individuals with
visual impairments;
(3) Acquisition or modification of
equipment or devices; and
(4) Other similar services and actions.
Beneficiary means the person or persons intended by Congress to receive
benefits or services from a recipient of
Federal financial assistance under
JTPA.

Citizenship: See Discrimination on the
ground of citizenship.
Department means the U.S. Department of Labor (DOL), including its
agencies and organizational units.
Director means the Director, Directorate of Civil Rights (DCR), Office of
the Assistant Secretary for Administration and Management, U.S. Department of Labor, or a designee authorized to act for the Director.
Directorate means the Directorate of
Civil Rights (DCR), Office of the Assistant Secretary for Administration and
Management, U.S. Department of
Labor.
Disability means, with respect to an
individual, a physical or mental impairment that substantially limits one
or more of the major life activities of
such individual; a record of such an impairment; or being regarded as having
such an impairment.
(1)(i) The phrase physical or mental impairment means—
(A) Any physiological disorder or
condition, cosmetic disfigurement, or
anatomical loss affecting one or more
of the following body systems: Neurological, musculoskeletal, special sense
organs, respiratory (including speech
organs), cardiovascular, reproductive,
digestive, genitourinary, hemic and
lymphatic, skin, and endocrine;
(B) Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or
mental illness, and specific learning
disabilities.
(ii) The phrase physical or mental impairment includes, but is not limited to,
such contagious and noncontagious diseases and conditions as orthopedic, visual, speech and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer,
heart disease, diabetes, mental retardation, emotional illness, specific
learning
disabilities,
HIV
disease
(whether symptomatic or asymptomatic), tuberculosis, drug addiction,
and alcoholism. The term impairment
does not include homosexuality or bisexuality.
(2) The phrase major life activities
means functions such as caring for
one’s self, performing manual tasks,
walking, seeing, hearing, speaking,
breathing, learning, and working.

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29 CFR Subtitle A (7–1–98 Edition)

(3) The phrase has a record of such an
impairment means has a history of, or
has been misclassified as having, a
mental or physical impairment that
substantially limits one or more major
life activities.
(4) The phrase is regarded as having an
impairment means—
(i) Has a physical or mental impairment that does not substantially limit
major life activities but that is treated
by the recipient as constituting such a
limitation;
(ii) Has a physical or mental impairment that substantially limits major
life activities only as a result of the attitudes of others toward such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this definition
but is treated by the recipient as having such an impairment.
(5) Consistent with amendments to
the Rehabilitation Act of 1973 and to
the JTPA, and with the ADA, this part
uses the term disability in place of the
term handicap. The two terms are intended to have identical meanings.
Discrimination on the ground of citizenship means a denial of participation in
programs or activities financially assisted in whole or in part under JTPA
to persons on the basis of their status
as citizens or nationals of the United
States, lawfully admitted permanent
resident aliens, lawfully admitted refugees and parolees, or other individuals
authorized by the Attorney General to
work in the United States.
Eligible applicant means an applicant
who has been determined eligible to
participate in one or more titles under
JTPA.
Entity means any corporation, partnership, joint venture, unincorporated
association, or State or local government, and any agency, instrumentality
or subdivision of such a government.
Facility means all or any portion of
buildings,
structures,
equipment,
roads, walks, parking lots, rolling
stock, or other real or personal property or interest in such property.
Federal financial assistance under
JTPA means any grant, cooperative
agreement,
loan,
contract;
any
subgrant made with a recipient of a
grant or subcontract made pursuant to
a JTPA contract; or any other arrange-

ment by which the Department provides or otherwise makes available assistance under JTPA in the form of:
(1) Funds, including funds made
available for the acquisition, construction, renovation, restoration or repair
of a building or facility or any portion
thereof;
(2) Services of Federal personnel; or
(3) Real or personal property or any
interest in or use of such property, including:
(i) Transfers or leases of such property for less than fair market value or
for reduced consideration;
(ii) Proceeds from a subsequent
transfer or lease of such property if the
Federal share of its fair market value
is not returned to the Federal Government; or
(iii) Any other thing of value by way
of grant, loan, contract, or cooperative
agreement (other than a procurement
contract or a contract of insurance or
guaranty).
Governor means the chief elected official of any State or his or her designee.
Grant applicant means the entity
which submits the required documentation to the Governor, recipient, or the
Department, prior to and as a condition of receiving Federal financial assistance under JTPA.
Guideline means written informational material supplementing an
agency’s regulations and provided to
grant applicants and recipients to provide program-specific interpretations
of their responsibilities under the regulations.
Illegal use of drugs means the use of
drugs, the possession or distribution of
which is unlawful under the Controlled
Substances Act. Illegal use of drugs does
not include the use of a drug taken
under supervision of a licensed health
care professional, or other uses authorized by the Controlled Substances Act
or other provisions of Federal law.
Individual with a disability means a
person who has a disability, as defined
in this section. The term impairment
does not include homosexuality or bisexuality; therefore, the term individual with a disability does not include an
individual on the basis of homosexuality or bisexuality.

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§ 34.2

(1) The term individual with a disability does not include an individual on
the basis of:
(i) Transvestism, transsexualism,
pedophilia, exhibitionism, voyeurism,
gender identity disorders not resulting
from physical impairments, or other
sexual behavior disorders;
(ii) Compulsive gambling, kleptomania, or pyromania; or
(iii) Psychoactive substance use disorders resulting from current illegal
use of drugs.
(2) The term individual with a disability also does not include an individual
who is currently engaging in the illegal
use of drugs, when a recipient acts on
the basis of such use. This limitation
should not be construed to exclude as
an individual with a disability an individual who:
(i) Has successfully completed a supervised drug rehabilitation program
and is no longer engaging in the illegal
use of drugs, or has otherwise been rehabilitated successfully and is no
longer engaging in such use;
(ii) Is participating in a supervised
rehabilitation program and is no longer
engaging in such use; or
(iii) Is erroneously regarded as engaging in such use, but is not engaging in
such use, except that it shall not be a
violation of the nondiscrimination and
equal opportunity provisions of JTPA
or this part for a recipient to adopt or
administer reasonable policies or procedures, including but not limited to
drug testing, designed to ensure that
an individual described in paragraph
(2)(i) or (2)(ii) of this definition is no
longer engaging in the illegal use of
drugs.
(3) With regard to employment, the
term individual with a disability does
not include any individual who is an alcoholic whose current use of alcohol
prevents such individual from performing the duties of the job in question or
whose employment, by reason of such
current alcohol abuse, would constitute a direct threat to property or
the safety of others.
JTPA means the Job Training Partnership Act of 1982, as amended, Public
Law 97–300, 96 Stat. 1322 (29 U.S.C. 1501
et seq.), including the Nontraditional
Employment for Women Act of 1991,
Public Law 102–235, 105 Stat. 1806 (29

U.S.C. 1501), and the Job Training Reform Amendments of 1992, Public Law
102–367, 106 Stat. 1021.
JTPA-funded
program
or
activity
means a program or activity, operated
by a recipient and funded under JTPA,
for the provision of services, financial
aid, or other benefit to individuals (including but not limited to education or
training, health, welfare, housing, social service, rehabilitation or other
services, whether provided through employees of the recipient or by others
through contract or other arrangements with the recipient, and including
work opportunities and cash, loan or
other assistance to individuals), or for
the provision of facilities for furnishing services, financial aid, or other
benefits to individuals. It also includes
services, financial aid, or other benefits provided in facilities constructed
with the aid of Federal financial assistance under JTPA. It further includes
services, financial aid, or other benefits provided with the aid of any nonJTPA 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 under JTPA.
Methods of Administration means the
written document and supporting documentation developed pursuant to
§ 34.33.
National Programs means programs
receiving Federal funds under JTPA directly from the Department. Such programs include, but are not limited to,
programs funded under title IV of
JTPA, such as the Migrant and Seasonal Workers Programs, Native Americans Programs, Job Corps, National
Activities and such Veterans’ Employment programs as are funded by the
Department. National programs also includes programs funded under certain
titles of the Nontraditional Employment for Women Act.
Noncompliance means a failure of a
recipient to comply with any of the applicable requirements of the nondiscrimination and equal opportunity
provisions of JTPA or this part.
Participant means an individual who
has been determined to be eligible to
participate in and who is receiving

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29 CFR Subtitle A (7–1–98 Edition)

services (except post-termination and
follow-up services) under a program authorized by JTPA. Participation shall
be deemed to commence on the first
day, following determination of eligibility, on which the participant began
receiving
subsidized
employment,
training, or other services provided
under JTPA.
Parties to a hearing means the Department and the grant applicant(s) or
recipient(s).
Prohibited ground means any basis
upon which it is illegal to discriminate
under the nondiscrimination and equal
opportunity provisions of JTPA or this
part, i.e., race, color, religion, sex, national origin, age, disability, political
affiliation or belief, and, for beneficiaries only, citizenship or participation in JTPA.
Qualified individual with a disability
means:
(1) With respect to employment, an
individual with a disability who, with
or without reasonable accommodation,
is capable of performing the essential
functions of the job in question;
(2) With respect to services, an individual with a disability who meets the
essential eligibility requirements for
the receipt of such services;
(3) With respect to employment and
employment-related
training
programs, an individual with a disability
who meets the eligibility requirements
for participation in JTPA and who,
with or without reasonable accommodation, is capable of performing the essential functions of the job or meets
the qualifications of the training program, as applicable.
Recipient means any entity to which
Federal financial assistance under any
title of JTPA is extended, either directly or through the Governor or
through another recipient (including
any successor, assignee, or transferee
of a recipient), but excluding the ultimate beneficiaries of the JTPA-funded
program or activity and the Governor.
Recipient includes, but is not limited
to: Job Corps Centers and Center operators (excluding federally-operated Job
Corps Centers), State Employment Security Agencies, State-level agencies
that administer JTPA funds, SDA
grant recipients, Substate grant recipi-

ents and service providers, as well as
National Program recipients.
Respondent means the grant applicant or recipient against which a complaint has been filed pursuant to the
nondiscrimination and equal opportunity provisions of JTPA or this part.
SDA grant recipient means the entity
that receives JTPA funds for a service
delivery area (SDA) directly from the
Governor.
Secretary means the Secretary of
Labor, U.S. Department of Labor, or
his or her designee.
Service provider means the operator of
any JTPA-funded program or activity
that receives funds from or through an
SDA grant recipient or a Substate
grantee.
Small recipient means a recipient who
serves fewer than 15 beneficiaries, and
employs fewer than 15 employees at all
times during a grant year.
Solicitor means the Solicitor of Labor,
U.S. Department of Labor, or his or her
designee.
State means the individual states of
the United States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, American
Samoa, Guam, Wake Island, the Commonwealth of the Northern Mariana Islands, the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau.
State Employment Security Agency
(SESA) means the State agency which,
under the State Administrator, contains both the State Employment Service agency (State agency) and the
State unemployment compensation
agency.
State Programs means programs funded in whole or in part under JTPA
wherein the Governor and/or State receives and disburses the grant to or
through SDA grant recipients or Substate grantees. Such programs include
but are not limited to those programs
funded in whole or in part under titles
II or III of JTPA. State programs also
includes State Employment Security
Agencies.
Substate grantee means that agency or
organization selected to administer
programs pursuant to section 312(b) of
JTPA. The Substate grantee is the entity that receives title III funds for a

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§ 34.4

substate area directly from the Governor.
Terminee means a participant terminating during the applicable program
year.
§ 34.3 Discrimination prohibited.
No individual in the United States
shall, on the ground of race, color, religion, sex, national origin, age, disability, political affiliation or belief, and
for beneficiaries only, citizenship or
participation in JTPA, be excluded
from participation in, denied the benefits of, subjected to discrimination
under, or denied employment in the administration of or in connection with
any JTPA-funded program or activity.
§ 34.4 Specific discriminatory actions
prohibited on the ground of race,
color, religion, sex, national origin,
age, political affiliation or belief,
citizenship, or participation in
JTPA.
(a) For the purposes of this section,
prohibited ground means race, color,
religion, sex, national origin, age, political affiliation or belief, and for
beneficiaries only, citizenship or participation in JTPA. A recipient shall
not, directly or through contractual,
licensing, or other arrangements, on a
prohibited ground:
(1) Deny an individual any service, financial aid, or benefit provided under
the JTPA-funded program or activity;
(2) Provide any service, financial aid,
or benefit to an individual which is different, or is provided in a different
manner, from that provided to others
under the JTPA-funded program or activity;
(3) Subject an individual to segregation or separate treatment in any matter related to his or her receipt of any
service, financial aid, or benefit under
the JTPA-funded program or activity;
(4) Restrict an individual in any way
in the enjoyment of any advantage or
privilege enjoyed by others receiving
any service, financial aid, or benefit
under the JTPA-funded program or activity;
(5) Treat an individual differently
from others in determining whether he
or she satisfies any admission, enrollment, eligibility, membership, or other
requirement or condition for any service, financial aid, function or benefit

provided under the JTPA-funded program or activity;
(6) Deny or limit an individual with
respect to any opportunity to participate in the JTPA-funded program or
activity, or afford him or her an opportunity to do so which is different from
that afforded others under the JTPAfunded program or activity;
(7) Deny an individual the opportunity to participate as a member of a
planning or advisory body which is an
integral part of the JTPA-funded program or activity;
(8) Aid or perpetuate discrimination
by providing significant assistance to
an agency, organization, or person that
discriminates on a prohibited ground in
providing any service, financial aid, or
benefit to applicants or participants in
the JTPA-funded program or activity;
(9) Refuse to accommodate a person’s
religious practices or beliefs, unless to
do so would result in undue hardship;
or
(10) Otherwise limit on a prohibited
ground an individual in enjoyment of
any right, privilege, advantage, or opportunity enjoyed by others receiving
any aid, benefit, service, or training.
(b) In determining the types of services, financial aid or other benefits or
facilities that will be provided under
any JTPA-funded program or activity,
or the class of individuals to whom or
the situations in which such services,
financial aid, or other benefits or facilities will be provided, a recipient
shall not use, directly or through contractual, licensing, or other arrangements, standards, procedures or criteria that have the purpose or effect of
subjecting individuals to discrimination on a prohibited ground or that
have the purpose or effect of defeating
or substantially impairing, on a prohibited ground, accomplishment of the
objectives of the JTPA-funded program
or activity. This paragraph applies to
the administration of JTPA- funded
programs or activities providing services, financial aid, benefits or facilities
in any manner, including, but not limited to, recruitment, registration,
counseling, testing, guidance, selection, placement, appointment, training, referral, promotion and retention.
(c) In determining the site or location of facilities, a grant applicant or

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29 CFR Subtitle A (7–1–98 Edition)

recipient may not make selections
with the purpose or effect of excluding
individuals from, denying them the
benefits of, or subjecting them to discrimination on a prohibited ground, or
with the purpose or effect of defeating
or substantially impairing the accomplishment of the objectives of the program, or the nondiscrimination and
equal opportunity provisions of JTPA
or this part.
(d) The exclusion of an individual
from programs or activities limited by
Federal statute or Executive Order to a
certain class or classes of individuals
of which the individual in question is
not a member is not prohibited by this
part.
§ 34.5 Specific discriminatory actions
prohibited on the ground of disability.
(a) In providing any aid, benefit,
service or training under a JTPA-funded program or activity, a recipient
shall not, directly or through contractual, licensing, or other arrangements,
on the ground of disability:
(1) Deny a qualified individual with a
disability the opportunity to participate in or benefit from the aid, benefit,
service or training;
(2) Afford a qualified individual with
a disability an opportunity to participate in or benefit from the aid, benefit,
service or training that is not equal to
that afforded others;
(3) Provide a qualified individual
with a disability with an aid, benefit,
service or training that is not as effective in affording equal opportunity to
obtain the same result, to gain the
same benefit, or to reach the same
level of achievement as that provided
to others;
(4) Provide different or separate aid,
benefits, or services to individuals with
disabilities or to any class of individuals with disabilities unless such action is necessary to provide qualified
individuals with disabilities with aid,
benefits, services or training that are
as effective as those provided to others;
(5) Aid or perpetuate discrimination
against a qualified individual with a
disability by providing significant assistance to an agency, organization, or
person that discriminates on the basis

of disability in providing any aid, benefit, service or training to participants;
(6) Deny a qualified individual with a
disability the opportunity to participate as a member of planning or advisory boards;
(7) Otherwise limit a qualified individual with a disability in enjoyment
of any right, privilege, advantage, or
opportunity enjoyed by others receiving any aid, benefit, service or training.
(b) A recipient may not deny a qualified individual with a disability the opportunity to participate in JTPA-funded programs or activities despite the
existence of permissibly separate or
different programs or activities.
(c) A recipient shall administer
JTPA-funded programs and activities
in the most integrated setting appropriate to the needs of qualified individuals with disabilities.
(d) A recipient may not, directly or
through contractual or other arrangements, utilize criteria or administrative methods:
(1) That have the effect of subjecting
qualified individuals with disabilities
to discrimination on the ground of disability;
(2) That have the purpose or effect of
defeating or substantially impairing
accomplishment of the objectives of
the JTPA-funded program or activity
with respect to individuals with disabilities; or
(3) That perpetuate the discrimination of another entity if both entities
are subject to common administrative
control or are agencies of the same
state.
(e) In determining the site or location of facilities, a grant applicant or
recipient may not make selections
with the purpose or effect of excluding
individuals with disabilities from, denying them the benefits of, or otherwise subjecting them to discrimination
under any JTPA-funded program or activity, or with the purpose or effect of
defeating or substantially impairing
the accomplishment of the objectives
of the JTPA-funded program or activity or this part with respect to individuals with disabilities.
(f) As used in this section, references
to the aid, benefit, service or training
provided under a JTPA-funded program

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§ 34.7

or activity include any aid, benefit,
service or training provided in or
through a facility that has been constructed, expanded, altered, leased,
rented, or otherwise acquired, in whole
or in part, with Federal financial assistance under JTPA.
(g) The exclusion of an individual
without a disability from the benefits
of a program limited by Federal statute or Executive Order to individuals
with disabilities or the exclusion of a
specific class of individuals with disabilities from a program limited by
Federal statute or Executive Order to a
different class of individuals with disabilities is not prohibited by this part.
(h) This part does not require a recipient to provide to individuals with disabilities: personal devices, such as
wheelchairs; individually prescribed
devices, such as prescription eyeglasses
or hearing aids; readers for personal
use or study; or services of a personal
nature including assistance in eating,
toileting, or dressing.
§ 34.6 Communications with individuals with disabilities.
(a) Recipients shall take appropriate
steps to ensure that communications
with beneficiaries, applicants, eligible
applicants, participants, applicants for
employment, employees and members
of the public who are individuals with
disabilities, are as effective as communications with others.
(b) A recipient shall furnish appropriate auxiliary aids or services where
necessary to afford individuals with
disabilities an equal opportunity to
participate in, and enjoy the benefits
of, the JTPA-funded program or activity. In determining what type of auxiliary aid or service is necessary, such
recipient shall give primary consideration to the requests of the individual
with a disability.
(c) Where a recipient communicates
with beneficiaries, applicants, eligible
applicants, participants, applicants for
employment and employees by telephone, telecommunications devices for
individuals with hearing impairments
(TDDs), or equally effective communications systems shall be used.
(d) A recipient shall ensure that interested persons, including persons
with visual or hearing impairments,

can obtain information as to the existence and location of accessible services, activities, and facilities.
(e) A recipient shall provide signage
at a primary entrance to each of its inaccessible facilities, directing users to
a location at which they can obtain information about accessible facilities.
The international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(f) This section does not require a recipient to take any action that it can
demonstrate would result in a fundamental alteration in the nature of a
service, program, or activity or in
undue financial and administrative
burdens.
(1) In those circumstances where a
recipient believes that the proposed action would fundamentally alter the
JTPA-funded program, activity, or
service, or would result in undue financial and administrative burdens, such
recipient has the burden of proving
that compliance with this section
would result in such alteration or burdens.
(2) The decision that compliance
would result in such alteration or burdens must be made by the recipient
after considering all resources available for use in the funding and operation of the JTPA-funded program, activity, or service and must be accompanied by a written statement of the
reasons for reaching that conclusion.
(3) If an action required to comply
with this section would result in such
an alteration or such burdens, the recipient shall take any other action
that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum
extent possible, individuals with disabilities receive the benefits or services provided by the recipient.
§ 34.7

Employment practices.

(a) As used in this part, the term
‘‘employment practices’’ includes, but
is not limited to, recruitment or recruitment advertising, selection, placement, layoff or termination, upgrading,
demotion or transfer, training, participation in upward mobility programs,
rates of pay or other forms of compensation, and use of facilities and

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other terms and conditions of employment.
(b) Discrimination on the ground of
race, color, religion, sex, national origin, age, disability, or political affiliation or belief is prohibited in employment practices in the administration
of, or in connection with, any JTPAfunded program or activity.
(c) Employee selection procedures. In
implementing this section, a recipient
shall comply with the Uniform Guidelines on Employee Selection Procedures, 41 CFR part 60–3.
(d) Standards for employment-related
investigations and reviews. In any investigation or compliance review, the Director shall consider EEOC regulations,
guidelines and appropriate case law in
determining whether a recipient has
engaged in an unlawful employment
practice.
(e) As provided in § 34.1(c)(2) of this
part, this rule does not affect in any
way the obligation of recipients to
comply with subparts B and C and appendix A of 29 CFR part 32, implementing the requirements of section 504 pertaining to employment practices and
employment-related training, program
accessibility, and accommodations.
Therefore, this section should not be
understood to constitute an exhaustive
list
of
employment-related
nondiscrimination and equal opportunity
obligations on the ground of disability.
(f) Recipients that are also employers
covered by titles I and II of the ADA
should be aware of obligations imposed
pursuant to those titles. See 29 CFR
part 1630 and 28 CFR part 35.
(g) This rule does not preempt consistent State and local requirements.
§ 34.8 Intimidation and retaliation prohibited.
A recipient shall not discharge, intimidate, retaliate, threaten, coerce or
discriminate against any person because such person has: filed a complaint; opposed a prohibited practice;
furnished information; assisted or participated in any manner in an investigation, review, hearing or any other
activity related to administration of,
or exercise of authority under, or privilege secured by, the nondiscrimination
and equal opportunity provisions of
JTPA or this part; or otherwise exer-

cised any rights and privileges under
the nondiscrimination and equal opportunity provisions of JTPA or this part.
The sanctions and penalties contained
in section 167 of JTPA or this part may
be imposed against any recipient that
engages in any such proscribed activity
or fails to take appropriate steps to
prevent such activity.
§ 34.9 Designation of responsible office; rulings and interpretations.
(a) The Directorate of Civil Rights
(DCR), in the Office of the Assistant
Secretary for Administration and Management, is responsible for administering and enforcing the nondiscrimination and equal opportunity provisions
of JTPA and this part and for developing and issuing policies, standards,
guidelines and procedures for effecting
compliance.
(b) The Director shall make any rulings under or interpretations of the
nondiscrimination and equal opportunity provisions of JTPA or this part.
§ 34.10

[Reserved]

§ 34.11 Effect of other obligations or
limitations.
(a) Effect of State or local law or other
requirements. The obligation to comply
with the nondiscrimination and equal
opportunity provisions of JTPA or this
part shall not be obviated or alleviated
by any State or local law or other requirement that, on a prohibited
ground, prohibits or limits an individual’s eligibility to receive services,
compensation or benefits, to participate in any JTPA-funded program or
activity, or to be employed by any recipient, or to practice any occupation
or profession.
(b) Effect of private organization rules.
The obligation to comply with the nondiscrimination and equal opportunity
provisions of JTPA and this part shall
not be obviated or alleviated by any
rule or regulation of any private organization, club, league or association
that, on a prohibited ground, prohibits
or limits an individual’s eligibility to
participate in any JTPA-funded program or activity to which this part applies.
(c) Effect of the availability of employment opportunities. The availability of

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future employment opportunities, or
lack thereof, in any occupation or profession for qualified individuals with
disabilities or persons of a certain race,
color, religion, sex, national origin,
age, political affiliation or belief, or
citizenship shall not be considered in
recruiting, selecting or placing individuals in programs or activities.
§ 34.12 Delegation and coordination.
(a) The Secretary may from time to
time assign to officials of other departments or agencies of the Government
(with the consent of such department
or agency) responsibilities in connection with the effectuation of the nondiscrimination and equal opportunity
provisions of JTPA and this part (other
than responsibility for final decisions
pursuant to § 34.42), including the
achievement of effective coordination
and maximum uniformity within the
Department and within the executive
branch of the Government in the application of the nondiscrimination and
equal opportunity provisions of JTPA
or this part to similar programs and
similar situations.
(b) 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 Director.
(c) Whenever a compliance review or
complaint investigation under this
part reveals possible violation of Executive Order 11246, as amended, section
503 of the Rehabilitation Act of 1973, as
amended, the affirmative action provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as
amended (38 U.S.C. 4212), the Equal Pay
Act of 1963, as amended, title VII of the
Civil Rights Act of 1964, as amended,
the Age Discrimination in Employment
Act of 1967, as amended, the Americans
With Disabilities Act, or any other
Federal civil rights law, that is not
also a violation of the nondiscrimination and equal opportunity provisions
of JTPA or this part, the Director shall
attempt to notify the appropriate
agency and provide it with all relevant
documents and information.

Subpart B—Recordkeeping and
Other Affirmative Obligations
of Recipients
§ 34.20 Assurance required; duration
of obligation; covenants.
(a) Assurance. (1) Each application for
Federal financial assistance under
JTPA, as defined in § 34.2, shall include
an assurance, in the following form,
with respect to the operation of the
JTPA-funded program or activity and
all agreements or arrangements to
carry out the JTPA-funded program or
activity:
As a condition to the award of financial assistance under JTPA from the Department of
Labor, the grant applicant assures, with respect to operation of the JTPA-funded program or activity and all agreements or arrangements to carry out the JTPA-funded
program or activity, that it will comply
fully with the nondiscrimination and equal
opportunity provisions of the Job Training
Partnership Act of 1982, as amended (JTPA),
including the Nontraditional Employment
for Women Act of 1991; title VI of the Civil
Rights Act of 1964, as amended; section 504 of
the Rehabilitation Act of 1973, as amended;
the Age Discrimination Act of 1975, as
amended; title IX of the Education Amendments of 1972, as amended; and with all applicable requirements imposed by or pursuant to regulations implementing those laws,
including but not limited to 29 CFR part 34.
The United States has the right to seek judicial enforcement of this assurance.

(2) The assurance shall be deemed incorporated by operation of law in the
grant, cooperative agreement, contract
or other arrangement whereby Federal
financial assistance under JTPA is
made available, whether or not it is
physically incorporated in such document and whether or not there is a
written agreement between the Department and the recipient, between the
Department and the Governor, between
the Governor and the recipient, or between recipients. The assurance may
also be incorporated by reference in
such grants, cooperative agreements,
contracts or other arrangements.
(b) Continuing State programs. Each
application by a State or a State agency to carry out a continuing JTPAfunded program or activity shall, as a

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29 CFR Subtitle A (7–1–98 Edition)

condition to its approval and the extension of any Federal financial assistance under JTPA pursuant to the application, provide a statement that the
JTPA-funded program or activity is
(or, in the case of a new JTPA-funded
program or activity, will be) conducted
in compliance with the nondiscrimination and equal opportunity provisions
of JTPA and this part. The State shall
certify that it has developed and maintains a Methods of Administration pursuant to § 34.33.
(c) Duration and scope of obligation. (1)
Where the Federal financial assistance
under JTPA is to provide or is in the
form of personal property or real property or interest therein 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 property is
used for a purpose for which Federal financial assistance under JTPA is extended, or for as long as the recipient
retains ownership or possession of the
property, whichever is longer.
(2) In all other cases, the assurance
shall obligate the recipient for the period during which Federal financial assistance under JTPA is extended.
(d) Covenants. (1) Where Federal financial assistance under JTPA is provided in the form of a transfer of real
property, structures, or improvements
thereon, or interests therein, the instrument effecting or recording the
transfer shall contain a covenant assuring nondiscrimination and equal opportunity for the period during which
the real property is used for a purpose
for which the Federal financial assistance under JTPA is extended.
(2) Where no Federal transfer of real
property or interest therein from the
Federal Government is involved, but
real property or an interest therein is
acquired or improved under a program
of Federal financial assistance under
JTPA, the recipient shall include such
covenant described in paragraph (d)(1)
of this section in the instrument effecting or recording any subsequent transfer of such property.
(3) When the property is obtained
from the Federal Government, such
covenant described in paragraph (d)(1)
of this section may also include a condition coupled with a right of reverter

to the Department in the event of a
breach of the covenant.
§ 34.21

Equitable services.

Recipients shall make efforts to provide equitable services among substantial segments of the population eligible
for participation in JTPA. Such efforts
shall include but not be limited to outreach efforts to broaden the composition of the pool of those considered for
participation, to include members of
both sexes, the various race/ethnicity
and age groups, and individuals with
disabilities.
§ 34.22 Designation of Equal Opportunity Officer.
(a) A recipient, other than a small recipient or service provider as defined in
§ 34.2, shall designate an Equal Opportunity Officer to coordinate its responsibilities under this part. Such responsibilities include, but are not limited
to, serving as the recipient’s liaison
with the Directorate and overseeing
the development and implementation
of the Methods of Administration pursuant to § 34.33. The Equal Opportunity
Officer shall report on equal opportunity matters directly to the State
JTPA Director, Governor’s JTPA Liaison, Job Corps Center Director, SESA
Administrator, or chief executive officer of the SDA or substate grant recipient, as applicable. The Director may
require the Equal Opportunity Officer
and his or her staff to undergo training, the expenses of which shall be the
responsibility of the recipient. The recipient shall make public the name,
title of position, address and telephone
number of the Equal Opportunity Officer.
(b) Recipients shall assign sufficient
staff and resources to the Equal Opportunity Officer to ensure compliance
with the nondiscrimination and equal
opportunity provisions of JTPA and
this part.
(c) Small recipients shall designate
an individual responsible for the adoption and publication of complaint procedures and the processing of complaints pursuant to § 34.42.
(d) Service providers as defined by
§ 34.2 shall not be required to designate

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§ 34.23

an Equal Opportunity Officer. The responsibility for ensuring service provider compliance with the nondiscrimination and equal opportunity
provisions of JTPA and this part shall
rest with the Governor, SDA grant recipient or Substate grantee, as provided in the State’s Methods of Administration.
§ 34.23 Dissemination of policy.
(a) Initial and Continuing Notice. (l) A
recipient shall provide initial and continuing notice that it does not discriminate on any prohibited ground,
to: Applicants, eligible applicants, participants, applicants for employment,
employees, and members of the public,
including those with impaired vision or
hearing, and unions or professional organizations holding collective bargaining or professional agreements with
the recipient.
(2) The notice requirement imposed
pursuant to paragraph (a)(1) of this section requires, at a minimum, that the
notice specified in paragraph (a)(5) of
this section be: posted prominently, in
reasonable numbers and places; disseminated in internal memoranda and
other written communications; included in handbooks or manuals; and
made available to each participant and
made a part of the participant’s file.
The required notice to the public applicable to generally-distributed publications is contained in paragraph (b) of
this section.
(3) The recipient shall provide that
the initial and continuing notice required by paragraph (a) of this section
be provided in appropriate formats to
individuals with visual impairments.
Where notice has been given in an alternate format to a participant with a
visual impairment, a record that such
notice has been given shall be made a
part of the participant’s file.
(4) The notice required by paragraph
(a) of this section must be provided
within 90 days of the effective date of
this part or of the date this part first
applies to the recipient, whichever
comes later.
(5) The notice required by paragraph
(a) of this section shall contain the following prescribed language:

EQUAL OPPORTUNITY IS THE LAW
This recipient is prohibited from discriminating on the ground of race, color, religion,
sex, national origin, age, disability, political
affiliation or belief, and for beneficiaries
only, citizenship or participation in programs funded under the Job Training Partnership Act, as amended (JTPA), in admission or access to, opportunity or treatment
in, or employment in the administration of
or in connection with, any JTPA-funded program or activity. If you think that you have
been subjected to discrimination under a
JTPA-funded program or activity, you may
file a complaint within 180 days from the
date of the alleged violation with the recipient’s Equal Opportunity Officer (or the person designated for this purpose), or you may
file a complaint directly with the Director,
Directorate of Civil Rights (DCR), U.S. Department of Labor, 200 Constitution Avenue
NW., room N–4123, Washington, DC 20210. If
you elect to file your complaint with the recipient, you must wait until the recipient
issues a decision or until 60 days have
passed, whichever is sooner, before filing
with DCR (see address above). If the recipient has not provided you with a written decision within 60 days of the filing of the complaint, you need not wait for a decision to be
issued, but may file a complaint with DCR
within 30 days of the expiration of the 60-day
period. If you are dissatisfied with the recipient’s resolution of your complaint, you may
file a complaint with DCR. Such complaint
must be filed within 30 days of the date you
received notice of the recipient’s proposed
resolution.

(6) The Governor, the SDA grant recipient or the Substate grantee, as determined by the Governor in that
State’s Methods of Administration,
shall be responsible for meeting the notice requirement of paragraph (a) of
this section with respect to its service
providers.
(7) Recipient’s responsibility to provide notice. Whenever a recipient
passes on Federal financial assistance
under JTPA to another recipient, the
recipient passing on such assistance
shall provide the recipient receiving
the assistance with the notice prescribed in paragraph (a)(5) of this section.
(b) Publications. (1) In recruitment
brochures and other materials which
are ordinarily distributed to the public
to describe programs funded under
JTPA or the requirements for participation by recipients and participants,
recipients shall indicate that the
JTPA-funded program or activity in

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29 CFR Subtitle A (7–1–98 Edition)

question is an ‘‘equal opportunity employer/program’’ and that ‘‘auxiliary
aids and services are available upon request to individuals with disabilities.’’
Where such materials indicate that the
recipient may be reached by telephone,
the materials shall state the telephone
number of the TDD or relay service
used by the recipient, as required by
§ 34.6.
(2) Recipients required by law or regulation to publish or broadcast program information in the news media
shall ensure that such publications and
broadcasts state that the JTPA-funded
program or activity in question is an
equal opportunity employer/program
(or otherwise indicate that discrimination in the JTPA-funded program or
activity is prohibited by Federal law),
and indicate that auxiliary aids and
services are available upon request to
individuals with disabilities.
(3) A recipient shall not use or distribute a publication of the type described in paragraph (b) of this section
which suggests, by text or illustration,
that such recipient treats beneficiaries,
applicants, participants, employees or
applicants for employment differently
on any prohibited ground specified in
§ 34.1(a), except as such treatment is
otherwise permitted under Federal law
or this part.
(c) Services or information in a language other than English. A significant
number or proportion of the population
eligible to be served or likely to be directly affected by a JTPA-funded program or activity may need service or
information in a language other than
English in order that they be effectively informed of or able to participate in the JTPA-funded program or
activity. In such circumstances, the recipient shall take reasonable steps,
considering the scope of the program
and the size and concentration of such
population, to provide to such persons,
in appropriate languages, the information needed; the initial and continuing
notice required pursuant to paragraph
(a) of this section; and such written
materials as are distributed pursuant
to paragraph (b) of this section.
(d) Orientation. The recipient shall,
during each presentation to orient new
participants and/or new employees to
its JTPA-funded program or activity,

include a discussion of participants’
and/or employees’ rights under the
nondiscrimination and equal opportunity provisions of JTPA and this
part, including the right to file a complaint of discrimination with the recipient or the Director.
(e) As provided in § 34.6, the recipient
shall take appropriate steps to ensure
that communications with individuals
with disabilities are as effective as
communications with others.
§ 34.24 Data and information collection; confidentiality.
(a) Data and information collection.
The Director shall not require submission of data that can be obtained from
existing reporting requirements or
sources, including those of other agencies, if the source is known and available to the Director.
(1) Each recipient shall collect such
data and maintain such records, in accordance with procedures prescribed by
the Director, as the Director finds necessary to determine whether the recipient has complied or is complying with
the nondiscrimination and equal opportunity provisions of JTPA or this part.
(2) Such records shall include, but are
not limited to, records on applicants,
eligible
applicants,
participants,
terminees, employees and applicants
for employment. Each recipient shall
record the race/ethnicity, sex, age, and
where known, disability status, of
every applicant, eligible applicant, participant, terminee, applicant for employment and employee. Such information shall be stored in such a manner
as to ensure confidentiality and shall
be used only for the purposes of recordkeeping and reporting; determining eligibility, where appropriate, for JTPAfunded programs or activities; determining the extent to which the recipient is operating its JTPA-funded program or activity in a nondiscriminatory manner; or other use authorized by the nondiscrimination and
equal opportunity provisions of JTPA
or this part.
(3) In addition to the information
which shall be collected, maintained,
and upon request, submitted to the Directorate pursuant to paragraphs (a)(1)
and (a)(2) of this section:

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§ 34.24

(i) Each grant applicant and recipient
shall promptly notify the Director of
any administrative enforcement actions or lawsuits filed against it alleging discrimination on the ground of
race, color, religion, sex, national origin, age, disability, political affiliation
or belief, and for beneficiaries only,
citizenship or participation in JTPA;
(ii) Each grant applicant (as part of
its application) and recipient (as part
of a compliance review conducted pursuant to § 34.40 (b) or (c), or monitoring
activity carried out pursuant to § 34.34)
shall provide: the name of any other
Federal agency that conducted a civil
rights compliance review or complaint
investigation during the two preceding
years in which the grant applicant or
recipient was found to be in noncompliance; and shall identify the parties to,
the forum of, and case numbers pertaining to, any administrative enforcement actions or lawsuits filed against
it during the two years prior to its application (or, with respect to recipients, its renewal application) which allege discrimination on the ground of
race, color, religion, sex, national origin, age, disability, political affiliation
or belief, citizenship or participation in
JTPA;
(iii) Each recipient shall maintain a
log of complaints filed with it that allege discrimination on the ground of
race, color, religion, sex, national origin, age, disability, political affiliation
or belief, citizenship or participation in
JTPA. The log shall include: the name
and address of the complainant; the
ground of the complaint, i.e., race,
color, religion, sex, national origin,
age, disability, political affiliation or
belief, citizenship or participation in
JTPA; a description of the complaint;
the date the complaint was filed; the
disposition and date of disposition of
the complaint; and other pertinent information.
(4) At the discretion of the Director,
grant applicants and recipients may be
required to provide such information
and data as are necessary to investigate complaints and conduct compliance reviews on grounds prohibited
under the nondiscrimination and equal
opportunity provisions of JTPA and
this part, other than race/ethnicity,
sex, age, and disability.

(5) At the discretion of the Director,
recipients may be required to provide
such particularized information and/or
to submit such periodic reports as the
Director deems necessary to determine
compliance with the nondiscrimination
and equal opportunity provisions of
JTPA or this part.
(6) At the discretion of the Director,
grant applicants may be required to
submit such particularized information
as is necessary to determine whether
or not the grant applicant, if funded,
would be able to comply with the nondiscrimination and equal opportunity
provisions of JTPA or this part.
(7) Service Providers. A service provider’s responsibility for collecting and
maintaining the information required
pursuant to this section may be assumed by the Governor, SDA grant recipient or Substate grantee, as provided in the State’s Methods of Administration.
(b) Access to sources of information. (1)
Each grant applicant and recipient
shall permit access by the Director
during normal business hours to its
premises and to its employees and participants, to the extent that such individuals are on the premises during the
course of the investigation, for the purpose of conducting complaint investigations, compliance reviews, monitoring activities associated with a
State’s development and implementation of a Methods of Administration,
and inspecting and copying such books,
records, accounts and other materials
as may be pertinent to ascertain compliance with and ensure enforcement of
the nondiscrimination and equal opportunity provisions of JTPA or this part.
(2) Asserted considerations of privacy
or confidentiality shall not be a basis
for withholding information from the
Directorate and shall not bar the Directorate from evaluating or seeking to
enforce compliance with the nondiscrimination and equal opportunity
provisions of JTPA and this part. Information obtained pursuant to the requirements of this part shall be used
only in connection with compliance
and enforcement activities pertinent to
the nondiscrimination and equal opportunity provisions of JTPA and this
part. Whenever any information required of a grant applicant or recipient

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29 CFR Subtitle A (7–1–98 Edition)

is in the exclusive possession of another agency or institution which, or
person who, fails or refuses to furnish
such information, the grant applicant
or recipient shall provide certification
to the Directorate of such refusal and
the efforts it has made to obtain the
information.
(c) Record retention requirements. (1)
Each recipient shall maintain for a period of not less than three years from
the close of the applicable program
year, applicant, eligible applicant, participant, terminee, employee and applicant for employment records; and such
other records as are required under this
part or by the Director. (2) Records regarding complaints and actions taken
thereunder shall be maintained for a
period of not less than three years from
the date of resolution of the complaint.
(d) Confidentiality. The identity of
any person who furnishes information
relating to, or assisting in, an investigation or a compliance review shall
be kept confidential to the extent possible, consistent with a fair determination of the issues. A person whose identity it is necessary to disclose shall be
protected from retaliation (see § 34.8).
(e) Where designation of persons by
race or ethnicity is required, the guidelines of the Office of Management and
Budget shall be used.

Subpart C—Governor’s Responsibilities to Implement the
Nondiscrimination and Equal
Opportunity Requirements of
JTPA
§ 34.30 Application.
This subpart applies to State Programs as defined in § 34.2. However, the
provisions of § 34.32 (b) and (c) do not
apply to State Employment Security
Agencies (SESAs), because the Governor’s liability for any noncompliance
on the part of a SESA cannot be
waived.
§ 34.31 Recordkeeping.
The Governor shall ensure that recipients collect and maintain records
in a manner consistent with the provisions of § 34.24 and any procedures prescribed by the Director pursuant to
§ 34.24(a)(1). The Governor shall further

ensure that recipients are able to provide data and reports in the manner
prescribed by the Director.
§ 34.32 Oversight and liability.
(a) The Governor shall be responsible
for oversight of all JTPA-funded State
programs. This responsibility includes
ensuring compliance with the nondiscrimination and equal opportunity
provisions of JTPA and this part, and
negotiating with the recipient to secure voluntary compliance when noncompliance is found under § 34.45.
(b) The Governor and the recipient
shall be jointly and severally liable for
all violations of the nondiscrimination
and equal opportunity provisions of
JTPA and this part by the recipient,
unless the Governor has:
(1) Established and adhered to a
Methods of Administration, pursuant
to § 34.33, designed to give reasonable
guarantee of the recipient’s compliance
with such provisions;
(2) Entered into a written contract
with the recipient which clearly establishes the recipient’s obligations regarding nondiscrimination and equal
opportunity;
(3) Acted with due diligence to monitor the recipient’s compliance with
these provisions; and
(4) Taken prompt and appropriate
corrective action to effect compliance.
(c) If the Director determines that
the Governor has demonstrated substantial compliance with the requirements of paragraph (b) of this section,
he or she may recommend to the Secretary that the imposition of sanctions
against the Governor be waived and
that sanctions be imposed only against
the noncomplying recipient.
§ 34.33 Methods of Administration.
(a)(1) Each Governor shall establish
and adhere to a Methods of Administration for State programs as defined
in § 34.2. In those States in which one
agency contains both SESA and JTPA
programs, the Governor may develop a
combined Methods of Administration.
(2) Each Methods of Administration
shall be designed to give reasonable
guarantee that all recipients will comply and are complying with the nondiscrimination and equal opportunity
provisions of JTPA and this part.

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§ 34.40

(b) The Methods of Administration
shall be:
(1) In writing;
(2) Updated periodically as required
by the Director; and
(3) Signed by the Governor.
(c) The Methods of Administration
shall, at a minimum:
(1) Describe how the requirements of
§§ 34.20, 34.21, 34.22, 34.23, 34.24, 34.31, and
34.42 have been satisfied; and
(2) Include the following additional
elements:
(i) A system for periodically monitoring the compliance of recipients with
this part, including a determination as
to whether the recipient is conducting
its JTPA-funded program or activity in
a nondiscriminatory way;
(ii) A system for reviewing the nondiscrimination and equal opportunity
provisions of job training plans, contracts, assurances, and other similar
agreements;
(iii) Procedures for ensuring that recipients provide accessibility to individuals with disabilities;
(iv) A system of policy communication and training to ensure that members of the recipients’ staffs who have
been assigned responsibilities pursuant
to the nondiscrimination and equal opportunity provisions of JTPA or this
part are aware of and can effectively
carry out these responsibilities;
(v) Procedures for obtaining prompt
corrective action or, as necessary, applying sanctions when noncompliance
is found; and
(vi) Supporting documentation to
show that the commitments made in
the Methods of Administration have
been and/or are being carried out. Supporting documentation includes, but is
not limited to: policy and procedural
issuances concerning required elements
of the Methods of Administration; copies of monitoring instruments and instructions; evidence of the extent to
which nondiscrimination and equal opportunity policies have been developed
and communicated pursuant to this
part; information reflecting the extent
to which Equal Opportunity training,
including training called for by § 34.22,
is planned and/or has been carried out;
as applicable, reports of monitoring reviews and reports of follow-up actions
taken thereunder where violations

have been found, including, where appropriate, sanctions; and copies of any
notification made pursuant to § 34.23.
(d) The Governor shall, within 180
days of the effective date of this part:
(1) Develop and implement Methods
of Administration consistent with the
requirements of this part, and
(2) Submit a copy of the Methods of
Administration to the Director.
§ 34.34 Monitoring.
(a) The Director may periodically review the adequacy of the Methods of
Administration established by a Governor, as well as the adequacy of the
Governor’s performance under that
Methods of Administration, to determine compliance with the requirements of § 34.33. The Director may review the Methods of Administration
during a compliance review under
§ 34.40, or at another time.
(b) Nothing in this subpart shall
limit or preclude the Director from
monitoring directly any JTPA recipient or from investigating any matter
necessary to determine a recipient’s
compliance with the nondiscrimination
and equal opportunity provisions of
JTPA or this part.
(c) The procedures contained in subpart D of this part shall apply to reviews or investigations undertaken
pursuant to paragraphs (a) and (b) of
this section.

Subpart D—Compliance
Procedures
§ 34.40 Compliance reviews.
(a) The Director may from time to
time conduct pre- and post-approval
compliance reviews of grant applicants
for and recipients of Federal financial
assistance under JTPA to determine
compliance with the nondiscrimination
and equal opportunity provisions of
JTPA and this part. Techniques used in
such reviews may include desk reviews,
on-site reviews, and off-site analyses.
(b) Pre-approval reviews. (1) As appropriate and necessary to ensure compliance with the nondiscrimination and
equal opportunity provisions of JTPA
or this part, the Director may review
any application, or class of applications, for Federal financial assistance
under JTPA prior to and as a condition

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of their approval. The basis for such review shall be the assurance specified in
§ 34.20, information and reports submitted by the grant applicant pursuant to
this part or guidelines published by the
Director, and any relevant records on
file with the Department.
(2) Where the Director determines
that the grant applicant for Federal financial assistance under JTPA, if funded, would not comply with the nondiscrimination and equal opportunity
requirements of JTPA or this part, the
Director shall issue a Letter of Findings. Such Letter of Findings shall advise the grant applicant, in writing, of:
(i) The preliminary findings of the review;
(ii) The proposed remedial or corrective action pursuant to § 34.44 and the
time within which the remedial or corrective action should be completed;
(iii) Whether it will be necessary for
the grant applicant to enter into a
written Conciliation Agreement as described in § 34.45; and
(iv) The opportunity to engage in voluntary compliance negotiations.
(3) If a grant applicant has agreed to
certain remedial or corrective actions
in order to receive Federal financial assistance under JTPA, the Department
shall ensure that the remedial or corrective actions have been taken or that
a Conciliation Agreement has been entered into, prior to approving the
award of further assistance under
JTPA. If a grant applicant refuses or
fails to take remedial or corrective actions or to enter into a Conciliation
Agreement, as applicable, the Director
shall follow the procedures outlined in
§ 34.46.
(4) The Director shall notify, in a
timely manner, the departmental
granting agency of the findings of the
pre-approval compliance review.
(c) Post-approval reviews. (1) The Director may initiate a post-approval review of any recipient to determine
compliance with the nondiscrimination
and equal opportunity provisions of
JTPA and this part. The initiation of a
review may be based on, but need not
be limited to, the following: The results of routine program monitoring,
the nature of or incidence of complaints, the date of the last review, and
Congressional or community concerns.

(2) Such review shall be initiated by
a Notification Letter, advising the recipient of:
(i) The practices to be reviewed;
(ii) The programs to be reviewed;
(iii) The data to be submitted by the
recipient within 30 days of the receipt
of the Notification Letter; and
(iv) The opportunity, at any time
prior to receipt of the Final Determination described in § 34.46, to make a
documentary or other submission
which explains, validates or otherwise
addresses the practices under review.
(3) Except as provided in § 34.41(e),
within 210 days of issuing a Notification Letter initiating a review, the Director shall:
(i) Issue a Letter of Findings, which
shall advise the recipient, in writing,
of:
(A) The preliminary findings of the
review;
(B) Where appropriate, the proposed
remedial or corrective action to be
taken, and the time by which such action should be completed, as provided
in § 34.44;
(C) Whether it will be necessary for
the recipient to enter into a written assurance and/or Conciliation Agreement, as provided in § 34.45; and
(D) The opportunity to engage in voluntary compliance negotiations.
(ii) Where no violation is found, the
recipient shall be so informed in writing.
(4) The time limit for submitting
data to the Director pursuant to paragraph (c)(2)(iii) of this section may be
modified by the Director.
§ 34.41

Notice to Show Cause.

(a) The Director may issue a Notice
to Show Cause to a recipient failing to
comply with the requirements of this
part, where such failure results in the
inability of the Director to make a
finding. Such a failure includes, but is
not limited to, the failure or refusal to:
(1) Submit requested data within 30
days of the receipt of the Notification
Letter;
(2) Submit documentation requested
during a compliance review; or
(3) Provide the Directorate access to
a recipient’s premises or records during
a compliance review.

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§ 34.43

(b) The Notice to Show Cause shall
contain:
(1) A description of the violation and
a citation to the pertinent nondiscrimination or equal opportunity
provision(s) of JTPA and this part;
(2) The corrective action necessary to
achieve compliance or, as may be appropriate, the concepts and principles
of acceptable corrective or remedial action and the results anticipated; and
(3) A request for a written response
to the findings, including commitments to corrective action or the presentation of opposing facts and evidence.
(c) Such Notice to Show Cause shall
give the recipient 30 days to show
cause why enforcement proceedings
under the nondiscrimination and equal
opportunity provisions of JTPA or this
part should not be instituted. A recipient may make such a showing by,
among other means:
(1) Correcting the violation(s) that
brought about the Notice to Show
Cause and entering into a written assurance and/or entering into a Conciliation Agreement, as appropriate, pursuant to § 34.45(d);
(2) Demonstrating that the Directorate does not have jurisdiction; or
(3) Demonstrating that the violation
alleged by the Directorate did not
occur.
(d) If the recipient fails to show cause
why enforcement proceedings should
not be initiated, the Director shall follow the procedures outlined in § 34.46.
(e) The 210 day requirement provided
for in § 34.40(c)(3) shall be tolled during
the pendency of a Notice to Show
Cause.
§ 34.42 Adoption
of
discrimination
complaint processing procedures.
(a) Each recipient shall adopt and
publish procedures for processing complaints that allege a violation of the
nondiscrimination and equal opportunity provisions of JTPA or this part.
The procedures shall provide for the
prompt and equitable resolution of
such complaints. In the case of service
providers, the procedures required by
this paragraph shall be adopted and
published on behalf of the service provider by the Governor, the SDA grant
recipient or the Substate grantee, as

provided in the State’s Methods of Administration.
(b) The recipient’s Equal Opportunity
Officer, or in the case of a small recipient, the person designated pursuant to
§ 34.22(c), shall be responsible for the
adoption and publication of procedures
pursuant to paragraph (a) of this section, and for ensuring that such procedures are followed.
(c) A recipient who processes a complaint alleging a violation of the nondiscrimination and equal opportunity
provisions of JTPA or this part shall
provide the complainant with written
notification of the resolution within 60
days of the filing of the complaint.
Such notification shall include a statement of complainant’s right to file a
complaint with the Director.
§ 34.43

Complaints and investigations.

(a) Who may file. Any person who believes that he or she or any specific
class of individuals has been or is being
subjected to discrimination prohibited
by the nondiscrimination and equal opportunity provisions of JTPA or this
part may file a written complaint by
him or herself or by a representative.
(b) Where to file. The complaint may
be filed either with the recipient or
with the Director.
(c) Time for filing. A complaint filed
pursuant to this part must be filed
within 180 days of the alleged discrimination. The Director, for good cause
shown, may extend the filing time.
This time period for filing is for the administrative convenience of the Directorate and does not create a defense for
the respondent.
(d) Contents of complaints. Each complaint shall be filed in writing and
shall:
(1) Be signed by the complainant or
his or her authorized representative;
(2) Contain the complainant’s name
and address (or specify another means
of contacting him or her);
(3) Identify the respondent; and
(4) Describe the complainant’s allegations in sufficient detail to allow the
Director or the recipient, as applicable,
to determine whether:
(i) The Directorate or the recipient,
as applicable, has jurisdiction over the
complaint;

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29 CFR Subtitle A (7–1–98 Edition)

(ii) The complaint was timely filed;
and
(iii) The complaint has apparent
merit, i.e., whether the allegations, if
true, would violate any of the nondiscrimination and equal opportunity
provisions of JTPA or this part. The
information required by this paragraph
may be provided by completing and
submitting the Directorate’s Complaint Information and Privacy Act
Consent Forms.
(e) Right to Representation. Each complainant and respondent has the right
to be represented by an attorney or
other individual of his or her own
choice.
(f) Election of recipient-level complaint
processing. Any person who elects to
file his or her complaint with the recipient shall allow the recipient 60 days to
process the complaint.
(1) If, during the 60-day period, the
recipient offers the complainant a resolution of the complaint but the resolution offered is not satisfactory to the
complainant, the complainant or his or
her representative may file a complaint with the Director within 30 days
after the recipient notifies the complainant of its proposed resolution.
(2) Within 60 days, the recipient shall
offer a resolution of the complaint to
the complainant, and shall notify the
complainant of his or her right to file
a complaint with the Director, and inform the complainant that this right
must be exercised within 30 days.
(3) If, by the end of 60 days, the recipient has not completed its processing
of the complaint or has failed to notify
the complainant of the resolution, the
complainant or his or her representative may, within 30 days of the expiration of the 60-day period, file a complaint with the Director.
(4) The Director may extend the 30day time limit if the complainant is
not notified as provided in paragraph
(f)(2) of this section, or for other good
cause shown.
(5) Notification of no jurisdiction.
The recipient shall notify the complainant in writing immediately upon
determining that it does not have jurisdiction over a complaint that alleges a violation of the nondiscrimination and equal opportunity provisions
of JTPA or this part. The notification

shall also include the basis for such determination, as well as a statement of
the complainant’s right to file a written complaint with the Director within
30 days of receipt of the notification.
(g) Complaints filed with the Director.
(1) Notification of acceptance of complaint. The Director shall determine
whether the Directorate will accept a
complaint filed pursuant to this section. Where the Directorate accepts a
complaint for investigation, he or she
shall:
(i) Acknowledge acceptance of the
complaint for investigation to the
complainant and the respondent, and
(ii) Advise the complainant and respondent of the issues over which the
Directorate has accepted jurisdiction.
(2) Any complainant, respondent, or
the authorized representative of any
complainant or respondent, may contact the Directorate for information
regarding the complaint filed pursuant
to this section.
(3) Where a complaint contains insufficient information, the Director shall
seek the needed information from the
complainant. If the complainant is unavailable after reasonable means have
been used to locate him or her, or the
information is not furnished within 15
days of the receipt of such request, the
complaint file may be closed without
prejudice upon notice sent to the complainant’s last known address.
(4) The Director may issue a subpoena, as authorized by Section 163(c)
of JTPA, directing the person named
therein to appear and give testimony
and/or produce documentary evidence,
before a designated representative, relating to the complaint being investigated. Such attendance of witnesses,
and the production of such documentary evidence, may be required from
any place in the United States, at any
designated time and place.
(5) Where the Directorate lacks jurisdiction over a complaint, he or she
shall:
(i) So advise the complainant, indicating why the complaint falls outside
the coverage of the nondiscrimination
and equal opportunity provisions of
JTPA or this part; and
(ii) Where possible, refer the complaint to an appropriate Federal, State
or local authority.

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§ 34.45

(6) Where a complaint lacks apparent
merit or has not been timely filed, it
need not be investigated. Where a complaint will not be investigated, the Director shall so inform the complainant
and indicate the basis for that determination.
(7) Where a complaint alleging discrimination based on age falls within
the jurisdiction of the Age Discrimination Act of 1975, as amended, the Director shall refer the complaint in accordance with the provisions of 45 CFR
90.43(c)(3), and shall so advise the complainant and the respondent.
(8) Where a complaint solely alleges a
charge of individual employment discrimination covered by the nondiscrimination and equal opportunity
provisions of JTPA or this part and by
title VII of the Civil Rights Act of 1964,
as amended (42 U.S.C. 2000e to 2000e–17),
the Equal Pay Act of 1963, as amended
(29 U.S.C. 206(d)), or the Age Discrimination in Employment Act of 1976, as
amended (29 U.S.C. 621, et seq.), the Director shall refer such ‘‘joint complaint’’ to the Equal Employment Opportunity Commission for investigation and conciliation under procedures
for handling joint complaints at 29
CFR part 1691, and shall advise the
complainant and the respondent of the
referral.
(9) Determinations. The Director
shall determine at the conclusion of
the investigation of a complaint
whether there is reasonable cause to
believe that a violation of the nondiscrimination and equal opportunity
provisions of JTPA or this part has occurred.
(i) Upon making such a cause finding,
the Director shall issue an Initial Determination. The Initial Determination shall notify the complainant and
the respondent, in writing, of:
(A) The specific findings of the investigation;
(B) The proposed corrective or remedial action and the time by which the
corrective or remedial action must be
completed, as provided in § 34.44;
(C) Whether it will be necessary for
the respondent to enter into a written
agreement, as provided in § 34.45; and
(D) The opportunity to engage in voluntary compliance negotiations.

(ii) Where a no cause determination
is made, the complainant and the respondent shall be so notified in writing. Such determination represents
final agency action of the Department.
§ 34.44

Corrective and remedial action.

(a) A Letter of Findings, Notice to
Show Cause, or Initial Determination,
issued pursuant to §§ 34.40, 34.41 or 34.43
respectively, shall include the specific
steps the grant applicant or recipient,
as applicable, must take within a stated period of time in order to achieve
voluntary compliance.
(b) Such steps shall include, but are
not limited to:
(1) Actions to end and/or redress the
violation of the nondiscrimination and
equal opportunity provisions of JTPA
or this part;
(2) Make whole relief where discrimination has been identified, including,
as appropriate, back pay (which shall
not accrue from a date more than 2
years prior to the filing of the complaint or the initiation of a compliance
review) or other monetary relief; hire
or reinstatement; retroactive seniority; promotion; benefits or other services discriminatorily denied; and
(3) Such other remedial or affirmative relief as the Director deems necessary, including but not limited to
outreach, recruitment and training designed to ensure equal opportunity.
(c) Monetary relief may not be paid
from Federal funds.
§ 34.45 Notice of violation; written assurances; Conciliation Agreements.
(a) State Programs. (1) Violations at
State-office level. Where the Director
has determined that a violation of the
nondiscrimination and equal opportunity provisions of JTPA or this part
has occurred at the State-office level,
he or she shall notify the Governor
through the issuance of a Letter of
Findings, Notice to Show Cause or Initial Determination, as appropriate,
pursuant to §§ 34.40, 34.41 or 34.43 respectively. The Director may secure
compliance with the nondiscrimination
and equal opportunity provisions of
JTPA and this part through, among
other means, the execution of a written

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29 CFR Subtitle A (7–1–98 Edition)

assurance and/or Conciliation Agreement, pursuant to paragraph (d) of this
section.
(2) Violations below State-office
level. Where the Director has determined that a violation of the nondiscrimination and equal opportunity
provisions of JTPA or this part has occurred below the State-office level, the
Director shall so notify the Governor
and the violating recipient(s) through
the issuance of a Letter of Findings,
Notice to Show Cause or Initial Determination, as appropriate, pursuant to
§§ 34.40, 34.41 or 34.43 respectively.
(i) Such issuance shall: (A) Direct the
Governor to initiate negotiations immediately with the violating recipient(s) to secure compliance by voluntary means;
(B) Direct the Governor to complete
such negotiations within 30 days of the
Governor’s receipt of the Notice to
Show Cause or within 45 days of the
Governor’s receipt of the Letter of
Findings or Initial Determination, as
applicable. The Director reserves the
right to enter into negotiations with
the recipient at any time during the
period. For good cause shown, the Director may approve an extension of
time to secure voluntary compliance.
The total time allotted to secure voluntary compliance shall not exceed 60
days.
(C) Include a determination as to
whether compliance should be achieved
by: Immediate correction of the violation(s) and written assurance that such
violations have been corrected, pursuant to paragraph (d)(1) of this section;
entering into a written Conciliation
Agreement pursuant to paragraph
(d)(2) of this section; or both.
(ii) If the Governor determines, at
any time during the period described in
paragraph (a)(2)(i)(B), that a recipient’s
compliance cannot be achieved by voluntary means, the Governor shall so
notify the Director.
(iii) If the Governor is able to secure
voluntary compliance pursuant to
paragraph (a)(2)(i) of this section, he or
she shall submit to the Director for approval, as applicable: written assurance
that the required action has been
taken, as described in paragraph (d)(1)
of this section; and/or a copy of the

Conciliation Agreement, as described
in paragraph (d)(2) of this section.
(iv) The Director may disapprove any
written assurance or Conciliation
Agreement submitted for approval pursuant to paragraph (a)(2)(iii) of this
section that fails to satisfy each of the
applicable requirements provided in
paragraph (d) of this section.
(b) National Programs. Where the Director has determined that a violation
of the nondiscrimination and equal opportunity provisions of JTPA or this
part has occurred in a National Program, he or she shall notify the National Program recipient by issuing a
Letter of Findings, Notice to Show
Cause or Initial Determination, as appropriate, pursuant to §§ 34.40, 34.41 or
34.43 respectively. The Director may secure
compliance
with
the
nondiscrimination and equal opportunity
provisions of JTPA and this part
through, among other means, the execution of a written assurance and/or
Conciliation Agreement pursuant to
paragraph (d) of this section, as applicable.
(c) Written assurance; Conciliation
Agreement. (1) Written assurance. A
written assurance developed pursuant
to this section must provide documentation that the violations listed in
the Letter of Findings, Notice to Show
Cause or Initial Determination, as applicable, have been corrected.
(2) Conciliation Agreement. A Conciliation Agreement developed pursuant
to this section must:
(i) Be in writing;
(ii) Address each cited violation;
(iii) Specify the corrective or remedial action to be taken within a stated
period of time to come into compliance;
(iv) Provide for periodic reporting, as
determined by the Director, on the status of the corrective and remedial action;
(v) Provide that the violation(s) will
not recur; and
(vi) Provide for enforcement for a
breach of the agreement.
§ 34.46

Final Determination.

(a) The Director shall conclude that
compliance cannot be secured through
informal means when:

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§ 34.48

(1) The grant applicant or recipient
fails or refuses to correct the violation(s) within the applicable time period established by the Letter of Findings, Notice to Show Cause or Initial
Determination; or
(2) The Director has not approved an
extension of time in which to secure
voluntary compliance, pursuant to
§ 34.45(a)(2)(i)(B), and:
(i) Has not received notification pursuant to § 34.45(a)(2)(iii) that voluntary
compliance has been achieved; or
(ii) Has disapproved a written assurance or Conciliation Agreement, pursuant to § 34.45(a)(2)(iv); or
(iii) Has received notice from the
Governor, pursuant to § 34.44(a)(2)(ii),
that voluntary compliance cannot be
achieved.
(b) Upon so concluding, the Director
may:
(1) Issue a Final Determination
which shall:
(i) Specify the efforts made to
achieve voluntary compliance and indicate that those efforts have been unsuccessful;
(ii) Identify those matters upon
which the Directorate and the grant
applicant or recipient continue to disagree;
(iii) List any modifications to the
findings of fact or conclusions set forth
in the Initial Determination, Notice to
Show Cause or Letter of Findings;
(iv) Determine the liability of the
grant applicant or recipient, as applicable, and establish the extent of the
liability, as appropriate;
(v) Describe the corrective or remedial action that must be taken for the
grant applicant or recipient to come
into compliance;
(vi) Indicate that the failure of the
grant applicant or recipient to come
into compliance within 10 days of the
receipt of the Final Determination
may result, after opportunity for a
hearing, in the termination or denial of
the grant, or discontinuation of assistance, as appropriate, or in referral to
the Department of Justice with a request to file suit;
(vii) Advise the grant applicant or recipient of the right to request a hearing, and reference the applicable procedures at § 34.51; and

(viii) Determine the Governor’s liability, if any, in accordance with the
provisions of § 34.32; or
(2) Refer the matter to the Attorney
General with a recommendation that
an appropriate civil action be instituted; or
(3) Take such other action as may be
provided by law.
§ 34.47 Notice of finding of noncompliance.
Where a compliance review or complaint investigation results in a finding
of noncompliance, the Director shall so
notify: (a) the Departmental granting
agency; and (b) the Assistant Attorney
General.
§ 34.48 Notification of Breach of Conciliation Agreement.
(a) Where a Governor is a party to a
Conciliation Agreement, the Governor
shall immediately notify the Director
of a recipient’s breach of any such Conciliation Agreement.
(b) When it becomes known to the Director, through the Governor or by
other means, that a Conciliation
Agreement has been breached, the Director may issue a Notification of
Breach of Conciliation Agreement.
(c) A Notification of Breach of Conciliation Agreement issued pursuant to
this section shall be directed, as applicable, to the Governor and/or other
party(ies) to the Conciliation Agreement.
(d) A Notification of Breach of Conciliation Agreement issued pursuant to
paragraph (a) of this section shall:
(1) Specify the efforts made to
achieve voluntary compliance and indicate that those efforts have been unsuccessful;
(2) Identify the specific provisions of
the Conciliation Agreement violated;
(3) Determine liability for the violation and the extent of the liability, as
appropriate;
(4) Indicate that failure of the violating party to come into compliance
within 10 days of the receipt of the Notification of Breach of Conciliation
Agreement may result, after opportunity for a hearing, in the termination or denial of the grant, or discontinuation of assistance, as appropriate, or in referral to the Department

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29 CFR Subtitle A (7–1–98 Edition)

of Justice with a request from the Department to file suit;
(5) Advise the violating party of the
right to request a hearing, and reference the applicable procedures at
§ 34.51(b); and
(6) Include a determination as to the
Governor’s liability, if any, in accordance with the provisions of § 34.32.
(e) Where enforcement action pursuant to a Notification of Breach of Conciliation Agreement is commenced, the
Director shall so notify: the Departmental granting agency; and the Governor, recipient or grant applicant, as
applicable.

Subpart E—Federal Procedures For
Effecting Compliance
§ 34.50 General.
(a) Sanctions; judicial enforcement. If,
following issuance of a Final Determination pursuant to § 34.46, or a Notification of Breach of Conciliation
Agreement pursuant to § 34.48, compliance has not been achieved, the Secretary may:
(1) After opportunity for a hearing,
suspend, terminate, deny or discontinue the Federal financial assistance under JTPA, in whole or in part;
(2) Refer the matter to the Attorney
General with a recommendation that
an appropriate civil action be instituted; or
(3) Take such action as may be provided by law.
(b) Deferral of new grants. When termination proceedings under § 34.51 have
been initiated, the Department may
defer action on applications for new financial assistance under JTPA until a
Final Decision under § 34.52 has been
rendered. Deferral is not appropriate
when financial assistance under JTPA
is due and payable under a previously
approved application.
(1) New Federal financial assistance
under JTPA includes all assistance for
which an application or approval, including renewal or continuation of existing activities, or authorization of
new activities, is required during the
deferral period.
(2) New Federal financial assistance
under JTPA does not include assistance approved prior to the beginning of
termination proceedings or increases in

funding as a result of changed computations of formula awards.
§ 34.51 Hearings.
(a) Notice of opportunity for hearing.
As part of a Final Determination, or a
Notification of Breach of a Conciliation Agreement, the Director shall include, and serve on the grant applicant
or recipient (by certified mail, return
receipt requested), a notice of opportunity for hearing.
(b) Complaint; request for hearing; answer.
(1) In the case of noncompliance
which cannot be voluntarily resolved,
the Final Determination or Notification of Breach of Conciliation Agreement shall be deemed the Department’s
formal complaint.
(2) To request a hearing, the grant
applicant or recipient must file a written answer to the Final Determination
or Notification of Breach of Conciliation Agreement, and a copy of the
Final Determination or Notification of
Breach of Conciliation Agreement,
with the Office of the Administrative
Law Judges.
(i) The answer must be filed within 30
days of the date of receipt of the Final
Determination
or
Notification
of
Breach of Conciliation Agreement.
(ii) A request for hearing must be set
forth in a separate paragraph of the answer.
(iii) The answer shall specifically
admit or deny each finding of fact in
the Final Determination or Notification of Breach of Conciliation Agreement. Where the grant applicant or recipient does not have knowledge or information sufficient to form a belief,
the answer may so state and the statement shall have the effect of a denial.
Findings of fact not denied shall be
deemed admitted. The answer shall
separately state and identify matters
alleged as affirmative defenses and
shall also set forth the matters of fact
and law relied on by the grant applicant or recipient.
(3) The grant applicant or recipient
must simultaneously serve a copy of
its filing on the Office of the Solicitor,
Civil Rights Division, Room N–2464,
U.S. Department of Labor, 200 Constitution Avenue NW., Washington DC
20210.

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§ 34.52

(4)(i) The failure of a grant applicant
or recipient to request a hearing under
this paragraph, or to appear at a hearing for which a date has been set, is
deemed to be a waiver of the right to a
hearing; and
(ii) Whenever a hearing is waived, all
allegations of fact contained in the
Final Determination or Notification of
Breach of Conciliation Agreement shall
be deemed admitted and the Final Determination or Notification of Breach
of Conciliation Agreement shall be
deemed the Final Decision of the Secretary as of the day following the last
date by which the grant applicant or
recipient was required to request a
hearing or was to appear at a hearing.
See § 34.52(b)(3).
(c) Time and place of hearing. Hearings
shall be held at a time and place ordered by the Administrative Law Judge
upon reasonable notice to all parties
and, as appropriate, the complainant.
In selecting a place for the hearing, due
regard shall be given to the convenience of the parties, their counsel, if
any, and witnesses.
(d) Judicial process; evidence.
(1) The Administrative Law Judge
may use judicial process to secure the
attendance of witnesses and the production of documents pursuant to Section 9 of the Federal Trade Commission
Act (15 U.S.C. 49).
(2) Evidence. In any hearing or administrative review conducted pursuant to this part, evidentiary matters
shall be governed by the standards and
principles set forth in the Uniform
Rules of Evidence issued by the Department of Labor’s Office of Administrative Law Judges, 29 CFR part 18.
§ 34.52 Decision and post-termination
proceedings.
(a) Initial Decision. After the hearing,
the Administrative Law Judge shall
issue an initial decision and order, containing findings and conclusions. The
initial decision and order shall be
served on all parties by certified mail,
return receipt requested.
(b) Exceptions; Final Decision. (1)
Final decision after a hearing. The initial decision and order shall become
the Final Decision and Order of the
Secretary unless exceptions are filed
by a party or, in the absence of excep-

tions, the Secretary serves notice that
the Secretary shall review the decision.
(i) A party dissatisfied with the initial decision and order may, within 45
days of receipt, file with the Secretary
and serve on the other parties to the
proceedings and on the Administrative
Law Judge, exceptions to the initial
decision and order or any part thereof.
(ii) Upon receipt of exceptions, the
Administrative Law Judge shall index
and forward the record and the initial
decision and order to the Secretary
within three days of such receipt.
(iii) A party filing exceptions must
specifically identify the finding or conclusion to which exception is taken.
Any exception not specifically urged
shall be deemed to have been waived.
(iv) Within 45 days of the date of filing such exceptions, a reply, which
shall be limited to the scope of the exceptions, may be filed and served by
any other party to the proceeding.
(v) Requests for extensions for the
filing of exceptions or replies thereto
must be received by the Secretary no
later than 3 days before the exceptions
or replies are due.
(vi) If no exceptions are filed, the
Secretary may, within 30 days of the
expiration of the time for filing exceptions, on his or her own motion serve
notice on the parties that the Secretary will review the decision.
(vii) Final Decision and Order. (A)
Where exceptions have been filed, the
initial decision and order of the Administrative Law Judge shall become
the Final Decision and Order of the
Secretary unless the Secretary, within
30 days of the expiration of the time for
filing exceptions and any replies thereto, has notified the parties that the
case is accepted for review. (B) Where
exceptions have not been filed, the initial decision and order of the Administrative Law Judge shall become the
Final Decision and Order of the Secretary unless the Secretary has served
notice on the parties that the Secretary will review the decision, as provided in paragraph (b)(1)(vi) of this section.
(viii) Any case reviewed by the Secretary pursuant to this paragraph shall
be decided within 180 days of the notification of such review. If the Secretary
fails to issue a Final Decision and

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§ 34.53

29 CFR Subtitle A (7–1–98 Edition)

Order within the 180-day period, the
initial decision and order of the Administrative Law Judge shall become
the Final Decision and Order of the
Secretary.
(2) Final Decision where a hearing is
waived.
(i) If, after issuance of a Final Determination pursuant to § 34.46(a) or Notification of Breach of Conciliation
Agreement pursuant to § 34.48, voluntary compliance has not been
achieved within the time set by this
part and the opportunity for a hearing
has been waived as provided for in
§ 34.51(b)(3), the Final Determination or
Notification of Breach of Conciliation
Agreement shall be deemed the Final
Decision of the Secretary.
(ii) When a Final Determination or
Notification of Breach of Conciliation
Agreement is deemed the Final Decision of the Secretary, the Secretary
may, within 45 days, issue an order terminating or denying the grant or continuation of assistance or imposing
other appropriate sanctions for the
grant applicant or recipient’s failure to
comply with the required corrective
and/or remedial actions, or referring
the matter to the Attorney General for
further enforcement action.
(3) Final agency action. A Final Decision and Order issued pursuant to
§ 34.52(b) constitutes final agency action.
(c) Post-termination proceedings. (1) A
grant applicant or recipient adversely
affected by a Final Decision and Order
issued pursuant to paragraph (b) of this
section shall be restored, where appropriate, to full eligibility to receive
Federal financial assistance under
JTPA if it satisfies the terms and conditions of such Final Decision and
Order and brings itself into compliance
with the nondiscrimination and equal
opportunity provisions of JTPA and
this part.
(2) A grant applicant or recipient adversely affected by a Final Decision
and Order issued pursuant to paragraph
(b) of this section may at any time petition the Director to restore its eligibility to receive Federal financial assistance under JTPA. A copy of the petition shall be served on the parties to
the original proceeding which led to
the Final Decision and Order issued

pursuant to paragraph (b) of this section. Such petition shall be supported
by information showing the actions
taken by the grant applicant or recipient to comply with the requirements of
paragraph (c)(1) of this section. The
grant applicant or recipient shall have
the burden of demonstrating that it
has satisfied the requirements of paragraph (c)(1) of this section. Restoration
to eligibility may be conditioned upon
the grant applicant or recipient entering into a consent decree. While proceedings under this section are pending, sanctions imposed by the Final Decision and Order under paragraphs (b)
(1) and (2) of this section shall remain
in effect.
(3) The Director shall issue a written
decision on the petition for restoration.
(i) If the Director determines that
the requirements of paragraph (c)(1) of
this section have not been satisfied, he
or she shall issue a decision denying
the petition.
(ii) Within 30 days of its receipt of
the Director’s decision, the recipient or
grant applicant may file a petition for
review of the decision by the Secretary, setting forth the grounds for its
objection to the Director’s decision.
(iii) The petition shall be served on
the Director and on the Office of the
Solicitor, Civil Rights Division.
(iv) The Director may file a response
to the petition within 14 days.
(v) The Secretary shall issue the final
agency decision denying or granting
the recipient’s or grant applicant’s request for restoration to eligibility.
§ 34.53 Suspension, termination, denial
or discontinuance of Federal financial assistance under JTPA; alternate funds disbursal procedure.
(a) Any action to suspend, terminate,
deny or discontinue Federal financial
assistance under JTPA shall be limited
to the particular political entity, or
part thereof or other recipient (or
grant applicant) as to which the finding has been made and shall be limited
in its effect to the particular program,
or part thereof, in which the noncompliance has been found. No order
suspending, terminating, denying or

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Office of the Secretary of Labor

§ 42.3

discontinuing Federal financial assistance under JTPA shall become effective until:
(1) The Director has issued a Final
Determination pursuant to § 34.46 or
Notification of Breach of Conciliation
Agreement pursuant to § 34.48;
(2) There has been an express finding
on the record, after opportunity for a
hearing, of failure by the grant applicant or recipient to comply with a requirement imposed by or pursuant to
the nondiscrimination and equal opportunity provisions of JTPA or this part;
(3) A Final Decision has been issued
by the Secretary, the Administrative
Law Judge’s decision and order has become the Final Decision of the Secretary, or the Final Determination or
Notification of Conciliation Agreement
has been deemed the Final Decision of
the Secretary, pursuant to § 34.52(b);
and
(4) The expiration of 30 days after the
Secretary has filed, with the committees of Congress having legislative jurisdiction over the program involved, a
full written report of the circumstances and grounds for such action.
(b) When the Department withholds
funds from a recipient or grant applicant under these regulations, the Secretary may disburse the withheld funds
directly to an alternate recipient. In
such case, the Secretary will require
any alternate recipient to demonstrate:
(1) The ability to comply with these
regulations; and
(2) The ability to achieve the goals of
the nondiscrimination and equal opportunity provisions of JTPA.

PART 42—COORDINATED
ENFORCEMENT
Sec.
42.1 General statement.
42.2 Purpose.
42.3 National Committee.
42.4 Structure of the National Committee.
42.5 Policy review.
42.6 Enforcement strategy.
42.7 Complaint/directed action logs.
42.8 Coordination plan.
42.9 Farm Labor Specialist (ESA).
42.10 Farm Labor contact persons and regional coordinators (OSHA).

42.20 Regional Farm Labor Coordinated Enforcement Committee.
42.21 Data collection.
AUTHORITY: 29 U.S.C. 49, et seq.; 29 U.S.C.
201 et seq.; 29 U.S.C. 651, et seq; 29 U.S.C. 801,
et seq.; 5 U.S.C. 301.
SOURCE: 45 FR 39489, June 10, 1980, unless
otherwise noted.

§ 42.1 General statement.
These regulations are promulgated
by the Secretary of Labor to describe
the coordination of the activities of the
Employment Standards Administration, the Occupational Safety and
Health Administration, and the Employment and Training Administration
relating to migrant farmworkers.
§ 42.2 Purpose.
(a) These regulations coordinate the
activities of ESA, OSHA and ETA, and
are intended to:
(1) Ensure effective enforcement efforts under the protective statutes—
i.e., the Farm Labor Contractor Registration Act (FLCRA), the Occupational Safety and Health Act (OSHA),
and the Fair Labor Standards Act
(FLSA) (protective statutes).
(2) Ensure that the enforcement efforts of DOL agencies are coordinated
to maximize their effectiveness, yet
minimize unnecessary duplication.
(3) Focus the attention of DOL agencies upon the special employment-related problems faced by migrant farmworkers.
(4) Coordinate DOL enforcement efforts with related activities of farmworker groups, federal and State agencies, and other concerned parties outside the Department of Labor whose
operations are related to the employment, housing, and working conditions
of migrant farmworkers.
(5) Establish an information exchange which will afford the Department, farmworker groups, and other
concerned parties outside the Department of Labor the opportunity to exchange information concerning wages,
hours and working conditions.
§ 42.3 National Committee.
A National Farm Labor Coordinated
Enforcement Committee (National Committee) is hereby established which
shall be responsible for: Reviewing

377