28CFR42_401_to_415

WAIS Document Retrieval[Code of Federal Regulations]
[Title 28, Volume 1]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR42]

[Page 794-795]

TITLE 28--JUDICIAL ADMINISTRATION

CHAPTER I--DEPARTMENT OF JUSTICE

PART 42_NONDISCRIMINATION; EQUAL EMPLOYMENT OPPORTUNITY; POLICIES AND

PROCEDURES--Table of Contents

Subpart F_Coordination of Enforcement of Non-discrimination in Federally
Assisted Programs

42.401 Purpose and application.
42.402 Definitions.
42.403 Agency regulations.
42.404 Guidelines.
42.405 Public dissemination of title VI information.
42.406 Data and information collection.
42.407 Procedures to determine compliance.
42.408 Complaint procedures.
42.409 Employment practices.
42.410 Continuing State programs.
42.411 Methods of resolving noncompliance.
42.412 Coordination.
42.413 Interagency cooperation and delegations.
42.414 Federal agency staff.
42.415 Federal agency title VI enforcement plan.

[Code of Federal Regulations]
[Title 28, Volume 1]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR42]

[Page 822-827]

TITLE 28--JUDICIAL ADMINISTRATION

CHAPTER I--DEPARTMENT OF JUSTICE

PART 42_NONDISCRIMINATION; EQUAL EMPLOYMENT OPPORTUNITY; POLICIES AND

Subpart F_Coordination of Enforcement of Non-discrimination in Federally
Assisted Programs

Authority: Executive Order 12250.

Source: Order No. 670-76, 41 FR 52669, Dec. 1, 1976, unless
otherwise noted.

Sec. 42.401 Purpose and application.

The purpose of this subpart is to insure that federal agencies which
extend financial assistance properly enforce title VI of the Civil
Rights Act of 1964 and similar provisions in federal grant statutes.
Enforcement of the latter statutes is covered by this subpart to the
extent that they relate to prohibiting discrimination on the ground of
race, color or national origin in programs receiving federal financial
assistance of the type subject to title VI. Responsibility for enforcing
title VI rests with the federal agencies which extend financial
assistance. In accord with the authority granted the Attorney General
under Executive Order 12250, this subpart shall govern the respective
obligations of federal agencies regarding enforcement of title VI. This
subpart is to be used in conjunction with the 1965 Attorney General
Guidelines for Enforcement of title VI, 28 CFR 50.3.

[Order No. 670-76, 41 FR 52669, Dec. 1, 1976, as amended by Order No.
960-81, 46 FR 52357, Oct. 27, 1981]

Sec. 42.402 Definitions.

For purpose of this subpart:
(a) Title VI refers to title VI of the Civil Rights Act of 1964, 42
U.S.C. 2000d to 2000d-4. Where appropriate, this term also refers to the
civil rights provisions of other federal statutes to the extent that
they prohibit discrimination on the ground of race, color or national
origin in programs receiving federal financial assistance of the type
subject to title VI itself.
(b) Agency or federal agency refers to any federal department or
agency which extends federal financial assistance of the type subject to
title VI.
(c) Program refers to programs and activities receiving federal
financial assistance of the type subject to title VI.
(d) Assistant Attorney General refers to the Assistant Attorney
General, Civil Rights Division, United States Department of Justice.
(e) Where designation of persons by race, color or national origin
is required, the following designations shall be used:
(1) Black, not of Hispanic Origin. A person having origins in any of
the black racial groups of Africa.
(2) Hispanic. A person of Mexican, Puerto Rican, Cuban, Central or
South American or other Spanish Culture or origin, regardless of race.
(3) Asian or Pacific Islander. A person having origins in any of the
original peoples of the Far East, Southeast Asia, the Indian
Subcontinent, or the Pacific Islands. This area includes, for example,
China, Japan, Korea, the Philippine Islands, and Samoa.
(4) American Indian or Alaskan Native. A person having origins in
any of the original peoples of North America, and who maintain cultural
identification through tribal affiliation or community recognition.
(5) White, not of Hispanic Origin. A person having origins in any of
the original people of Europe, North Africa, or the Middle East.
Additional sub-categories based on national origin or primary language
spoken may be used where appropriate, on either a national or a regional
basis. Paragraphs (e)(1) through (e)(5) of this section, inclusive, set
forth in this section are in conformity with the OMB Ad Hoc Committee on
Race/Ethnic Categories' recommendations. To the extent that said
designations are modified by the OMB Ad Hoc Committee, paragraphs (e)(1)
through (e)(5) of this section, inclusive, set forth in this section
shall be interpreted to conform with those modifications.
(f) Covered employment means employment practices covered by title
VI. Such practices are those which:
(1) Exist in a program where a primary objective of the federal
financial assistance is to provide employment, or
(2) Cause discrimination on the basis of race, color or national
origin with respect to beneficiaries or potential beneficiaries of the
assisted program.

[[Page 823]]

Sec. 42.403 Agency regulations.

(a) Any federal agency subject to title VI which has not issued a
regulation implementing title VI shall do so as promptly as possible
and, no later than the effective date of this subpart, shall submit a
proposed regulation to the Assistant Attorney General pursuant to
paragraph (c) of this section.
(b) Any federal agency which becomes subject to title VI after the
effective date of this subpart shall, within 60 days of the date it
becomes subject to title VI, submit a proposed regulation to the
Assistant Attorney General pursuant to paragraph (c) of this section.
(c) Regarding issuance or amendment of its regulation implementing
title VI, a federal agency shall take the following steps:
(1) Before publishing a proposed regulation of amendment in the
Federal Register, submit it to the Assistant Attorney General, Civil
Rights Division;
(2) After receiving the approval of the Assistant Attorney General,
publish the proposed regulation or amendment in the Federal Register for
comment;
(3) After final agency approval, submit the regulation or amendment,
through the Assistant Attorney General, to the Attorney General for
final approval. (Executive Order 12250 delegates to the Attorney General
the function, vested in the President by section 602 of title VI, 42
U.S.C. 2000d-1, of approving title VI regulations and amendments to
them.)
(d) The title VI regulation of each federal agency shall be
supplemented with an appendix listing the types of federal financial
assistance, i.e., the statutes authorizing such assistance, to which the
regulation applies. Each such appendix shall be kept up-to-date by
amendments published, at appropriate intervals, in the Federal Register.
In issuing or amending such an appendix, the agency need not follow the
procedure set forth in paragraph (c) of this section.

[Order No. 670-76, 41 FR 52669, Dec. 1, 1976, as amended by Order No.
960-81, 46 FR 52357, Oct. 27, 1981]

Sec. 42.404 Guidelines.

(a) Federal agencies shall publish title VI guidelines for each type
of program to which they extend financial assistance, where such
guidelines would be appropriate to provide detailed information on the
requirements of title VI. Such guidelines shall be published within
three months of the effective date of this subpart or of the effective
date of any subsequent statute authorizing federal financial assistance
to a new type of program. The guidelines shall describe the nature of
title VI coverage, methods of enforcement, examples of prohibited
practices in the context of the particular type of program, required or
suggested remedial action, and the nature of requirements relating to
covered employment, data collection, complaints and public information.
(b) Where a federal agency determines that title VI guidelines are
not appropriate for any type of program to which it provides financial
assistance, the reasons for the determination shall be stated in writing
and made available to the public upon request.

Sec. 42.405 Public dissemination of title VI information.

(a) Federal agencies shall make available and, where appropriate,
distribute their title VI regulations and guidelines for use by federal
employees, applicants for federal assistance, recipients, beneficiaries
and other interested persons.
(b) State agency compliance programs (see Sec. 42.410) shall be
made available to the public.
(c) Federal agencies shall require recipients, where feasible, to
display prominently in reasonable numbers and places posters which state
that the recipients operate programs subject to the nondiscrimination
requirements of title VI, summarize those requirements, note the
availability of title VI information from recipients and the federal
agencies, and explain briefly the procedures for filing complaints.
Federal agencies and recipients shall also include information on title
VI requirements, complaint procedures and the rights of beneficiaries in
handbooks, manuals, pamphlets and other

[[Page 824]]

material which are ordinarily distributed to the public to describe the
federally assisted programs and the requirements for participation by
recipients and beneficiaries. To the extent that recipients are required
by law or regulation to publish or broadcast program information in the
news media, federal agencies and recipients shall insure that such
publications and broadcasts state that the program in question is an
equal opportunity program or otherwise indicate that discrimination in
the program is prohibited by federal law.
(d)(1) Where a significant number or proportion of the population
eligible to be served or likely to be directly affected by a federally
assisted program (e.g., affected by relocation) needs service or
information in a language other than English in order effectively to be
informed of or to participate in the program, the recipient shall take
reasonable steps, considering the scope of the program and the size and
concentration of such population, to provide information in appropriate
languages to such persons. This requirement applies with regard to
written material of the type which is ordinarily distributed to the
public.
(2) Federal agencies shall also take reasonable steps to provide, in
languages other than English, information regarding programs subject to
title VI.

Sec. 42.406 Data and information collection.

(a) Except as determined to be inappropriate in accordance with
paragraph (f) of this section or Sec. 42.404(b), federal agencies, as a
part of the guidelines required by Sec. 42.404, shall in regard to each
assisted program provide for the collection of data and information from
applicants for and recipients of federal assistance sufficient to permit
effective enforcement of title VI.
(b) Pursuant to paragraph (a) of this section, in conjunction with
new applications for federal assistance (see 28 CFR 50.3(c) II A) and in
any applications for approval of specific projects or significant
changes in applications for continuation or renewal of assistance (see
28 CFR 50.3(c) II B), and at other times as appropriate, federal
agencies shall require applicants and recipients to provide relevant and
current title VI information. Examples of data and information which, to
the extent necessary and appropriate for determining compliance with
title VI, should be required by agency guidelines are as follows:
(1) The manner in which services are or will be provided by the
program in question, and related data necessary for determining whether
any persons are or will be denied such services on the basis of
prohibited discrimination;
(2) The population eligible to be served by race, color and national
origin;
(3) Data regarding covered employment, including use or planned use
of bilingual public-contact employees serving beneficiaries of the
program where necessary to permit effective participation by
beneficiaries unable to speak or understand English;
(4) The location of existing or proposed facilities connected with
the program, and related information adequate for determining whether
the location has or will have the effect of unnecessarily denying access
to any persons on the basis of prohibited discrimination;
(5) The present or proposed membership, by race, color and national
origin, in any planning or advisory body which is an integral part of
the program;
(6) Where relocation is involved, the requirements and steps used or
proposed to guard against unnecessary impact on persons on the basis of
race, color or national origin.
(c) Where additional data, such as demographic maps, the racial
composition of affected neighborhoods or census data, is necessary or
appropriate, for understanding information required in paragraph (b) of
this section, federal agencies shall specify, in their guidelines or in
other directives, the need to submit such data. Such additional data
should be required, however, only to the extent that it is readily
available or can be compiled with reasonable effort.
(d) Pursuant to paragraphs (a) and (b) of this section, in all
cases, federal agencies shall require:
(1) That each applicant or recipient promptly notify the agency upon
its request of any lawsuit filed against the

[[Page 825]]

applicant or recipient alleging discrimination on the basis of race,
color or national origin, and that each recipient notify the agency upon
its request of any complaints filed against the recipient alleging such
discrimination;
(2) A brief description of any applicant's or recipient's pending
applications to other federal agencies for assistance, and of federal
asssistance being provided at the time of the application or requested
report;
(3) A statement by any applicant describing any civil rights
compliance reviews regarding the applicant conducted during the two-year
period before the application, and information concerning the agency or
organization performing the review; and periodic statements by any
recipient regarding such reviews;
(4) A written assurance by any applicant or recipient that it will
compile and maintain records required, pursuant to paragraphs (a) and
(b) of this section, by the agency's guidelines or other directives.
(e) Federal agencies should inquire whether any agency listed by the
applicant or recipient pursuant to paragraph (d)(2) of this section has
found the applicant or recipient to be in noncompliance with any
relevant civil rights requirement.
(f) Where a federal agency determines that any of the requirements
of this section are inapplicable or inappropriate in regard to any
program, the basis for this conclusion shall be set forth in writing and
made available to the public upon request.

Sec. 42.407 Procedures to determine compliance.

(a) Agency staff determination responsibility. All federal agency
staff determinations of title VI compliance shall be made by, or be
subject to the review of, the agency's civil rights office. Where
federal agency responsibility for approving applications or specific
projects has been assigned to regional or area offices, the agency shall
include personnel having title VI review responsibility on the staffs of
such offices and such personnel shall perform the functions described in
paragraphs (b) and (c) of this section.
(b) Application review. Prior to approval of federal financial
assistance, the federal agency shall make written determination as to
whether the applicant is in compliance with title VI (see 28 CFR 50.3(c)
II A). The basis for such a determination under ``the agency's own
investigation'' provision (see 28 CFR 50.3(c) II A(2)), shall be
submission of an assurance of compliance and a review of the data
submitted by the applicant. Where a determination cannot be made from
this data, the agency shall require the submission of necessary
additional information and shall take other steps necessary for making
the determination. Such other steps may include, for example,
communicating with local government officials or minority group
organizations and field reviews. Where the requested assistance is for
construction, a pre-approval review should determine whether the
location and design of the project will provide service on a
nondiscriminatory basis and whether persons will be displaced or
relocated on a nondiscriminatory basis.
(c) Post-approval review. (1) Federal agencies shall establish and
maintain an effective program of post-approval compliance reviews
regarding approved new applications (see 28 CFR 50.3(c) II A),
applications for continuation or renewal of assistance (28 CFR 50.3(c)
II B) and all other federally assisted programs. Such reviews are to
include periodic submission of compliance reports by recipients to the
agencies and, where appropriate, field reviews of a representative
number of major recipients. In carrying out this program, agency
personnel shall follow agency manuals which establish appropriate review
procedures and standards of evaluation. Additionally, agencies should
consider incorporating a title VI component into general program reviews
and audits.
(2) The results of post-approval reviews shall be committed to
writing and shall include specific findings of fact and recommendations.
A determination of the compliance status of the recipient reviewed shall
be made as promptly as possible.
(d) Notice to assistant attorney general. Federal agencies shall
promptly notify

[[Page 826]]

the Assistant Attorney General of instances of probable noncompliance
determined as the result of application reviews or post-approval
compliance reviews.

Sec. 42.408 Complaint procedures.

(a) Federal agencies shall establish and publish in their guidelines
procedures for the prompt processing and disposition of complaints. The
complaint procedures shall provide for notification in writing to the
complainant and the applicant or recipient as to the disposition of the
complaint. Federal agencies should investigate complaints having
apparent merit. Where such complaints are not investigated, good cause
must exist and must be stated in the notification of disposition. In
such cases, the agency shall ascertain the feasibility of referring the
complaint to the primary recipient, such as a State agency, for
investigation.
(b) Where a federal agency lacks jurisdiction over a complaint, the
agency shall, wherever possible, refer the complaint to another federal
agency or advise the complainant.
(c) Where a federal agency requires or permits recipient to process
title VI complaints, the agency shall ascertain whether the recipients'
procedures for processing complaints are adequate. The federal agency
shall obtain a written report of each such complaint and investigation
and shall retain a review responsibility over the investigation and
disposition of each complaint.
(d) Each federal agency shall maintain a log of title VI complaints
filed with it, and with its recipients, identifying each complainant by
race, color, or national origin; the recipient; the nature of the
complaint; the dates the complaint was filed and the investigation
completed; the disposition; the date of disposition; and other pertinent
information. Each recipient processing title VI complaints shall be
required to maintain a similar log. Federal agencies shall report to the
Assistant Attorney General on January 1, 1977, and each six months
thereafter, the receipt, nature and disposition of all such title VI
complaints.

Sec. 42.409 Employment practices.

Enforcement of title VI compliance with respect to covered
employment practices shall not be superseded by state and local merit
systems relating to the employment practices of the same recipient.

Sec. 42.410 Continuing State programs.

Each state agency administering a continuing program which receives
federal financial assistance shall be required to establish a title VI
compliance program for itself and other recipients which obtain federal
assistance through it. The federal agencies shall require that such
state compliance programs provide for the assignment of title VI
responsibilities to designated state personnel and comply with the
minimum standards established in this subpart for federal agencies,
including the maintenance of records necessary to permit federal
officials to determine the title VI compliance of the state agencies and
the sub-recipient.

Sec. 42.411 Methods of resolving noncompliance.

(a) Effective enforcement of title VI requires that agencies take
prompt action to achieve voluntary compliance in all instances in which
noncompliance is found. Where such efforts have not been successful
within a reasonable period of time, the agency shall initiate
appropriate enforcement procedures as set forth in the 1965 Attorney
General Guidelines, 28 CFR 50.3. Each agency shall establish internal
controls to avoid unnecessary delay in resolving noncompliance, and
shall promptly notify the Assistant Attorney General of any case in
which negotiations have continued for more than sixty days after the
making of the determination of probable noncompliance and shall state
the reasons for the length of the negotiations.
(b) Agreement on the part of a noncomplying recipient to take
remedial steps to achieve compliance with title VI shall be set forth in
writing by the recipient and the federal agency. The remedial plan shall
specify the action necessary for the correction of title VI deficiencies
and shall be available to the public.

[[Page 827]]

Sec. 42.412 Coordination.

(a) The Attorney General's authority under Executive Order 12250 is
hereby delegated to the Assistant Attorney General, Civil Rights
Division.
(b) Consistent with this subpart and the 1965 Attorney General
Guidelines, 28 CFR 50.3, the Assistant Attorney General may issue such
directives and take such other action as he deems necessary to insure
that federal agencies carry out their responsibilities under title VI.
In addition, the Assistant Attorney General will routinely provide to
the Director of the Office of Management and Budget copies of all inter-
agency survey reports and related materials prepared by the Civil Rights
Division that evaluate the effectiveness of an agency's title VI
compliance efforts. Where cases or matters are referred to the Assistant
Attorney General for investigation, litigation or other appropriate
action, the federal agencies shall, upon request, provide appropriate
resources to the Assistant Attorney General to assist in carrying out
such action.

[Order No. 670-76, 41 FR 52669, Dec. 1, 1976, as amended by Order No.
699-77, 42 FR 15315, Mar. 21, 1977; Order No. 960-81, 46 FR 52357, Oct.
27, 1981]

Sec. 42.413 Interagency cooperation and delegations.

(a) Where each of a substantial number of recipients is receiving
assistance for similar or related purposes from two or more federal
agencies, or where two or more federal agencies cooperate in
administering assistance for a given class of recipients, the federal
agencies shall:
(1) Jointly coordinate compliance with title VI in the assisted
programs, to the extent consistent with the federal statutes under which
the assistance is provided; and
(2) Designate one of the federal agencies as the lead agency for
title VI compliance purposes. This shall be done by a written delegation
agreement, a copy of which shall be provided to the Assistant Attorney
General and shall be published in the Federal Register.
(b) Where such designations or delegations of functions have been
made, the agencies shall adopt adequate written procedures to assure
that the same standards of compliance with title VI are utilized at the
operational levels by each of the agencies. This may include
notification to agency personnel in handbooks, or instructions on any
forms used regarding the compliance procedures.
(c) Any agency conducting a compliance review or investigating a
complaint of an alleged title VI violation shall notify any other
affected agency upon discovery of its jurisdiction and shall
subsequently inform it of the findings made. Such reviews or
investigations may be made on a joint basis.
(d) Where a compliance review or complaint investigation under title
VI reveals a possible violation of Executive Order 11246, title VII of
the Civil Rights Act of 1964 (42 U.S.C. 2000e), or any other federal
law, the appropriate agency shall be notified.

Sec. 42.414 Federal agency staff.

Sufficient personnel shall be assigned by a federal agency to its
title VI compliance program to ensure effective enforcement of title VI.

Sec. 42.415 Federal agency title VI enforcement plan.

Each federal agency subject to title VI shall develop a written plan
for enforcement which sets out its priorities and procedures. This plan
shall be available to the public and shall address matters such as the
method for selecting recipients for compliance reviews, the
establishment of timetables and controls for such reviews, the procedure
for handling complaints, the allocation of its staff to different
compliance functions, the development of guidelines, the determination
as to when guidelines are not appropriate, and the provision of civil
rights training for its staff.