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[Federal Register Volume 78, Number 94 (Wednesday, May 15, 2013)]
[Proposed Rules]
[Pages 28569-28575]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10844]

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NATIONAL FOUNDATION ON THE ARTS AND HUMANITIES

National Endowment for the Humanities

45 CFR Part 1172

RIN 3136-AA33

Nondiscrimination on the Basis of Age in Federally Assisted 
Programs or Activities

AGENCY: National Endowment for the Humanities, National Foundation on 
the Arts and Humanities.

ACTION: Proposed rule.

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SUMMARY: The National Endowment for the Humanities (NEH) is issuing Age 
Discrimination Act of 1975 regulations at 45 CFR part 1172. These 
regulations implement provisions of the Age Discrimination Act of 1975 
and the general, government-wide age discrimination regulations 
promulgated by the United States Department of Health and Human 
Services (HHS).
    These regulations are designed to guide the actions of recipients 
of Federal financial assistance from NEH and incorporate the basic 
standards set forth in the general, government-wide regulations for 
determining what constitutes age discrimination. The regulations also 
discuss the responsibilities of NEH recipients and the investigations, 
conciliation, and enforcement procedures NEH has been using and will 
continue to use to ensure compliance with the Act.

DATES: Written comments must be postmarked and electronic comments must 
be submitted on or before July 15, 2013.

ADDRESSES: You may submit comments by any of the following methods: 
email to gencounsel@neh.gov; fax to 202-606-8600, please send your 
comments to the attention of Gina Raimond; or postal mail to Gina 
Raimond, Attorney Advisor, Office of the General Counsel, National 
Endowment for the Humanities, 1100 Pennsylvania Ave. NW., Room 529, 
Washington, DC 20506. To ensure proper handling, please reference ``Age 
Discrimination Act Regulations'' on your correspondence.

FOR FURTHER INFORMATION CONTACT: Gina Raimond, Office of the General 
Counsel, National Endowment for the Humanities, 202-606-8322 (voice) or 
202-606-8282 (TDD).

SUPPLEMENTARY INFORMATION:

Background Information

    The Age Discrimination Act of 1975, as amended, 29 U.S.C. 6101, et 
seq., (the ``Act''), prohibits discrimination on the basis of age in 
programs or activities receiving Federal financial assistance. The Act, 
which applies to persons of all ages, also contains certain exceptions 
that permit, under limited circumstances, use of age distinctions or 
factors other than age that may have a disproportionate effect on the 
basis of age.
    The Act required the former Department of Health, Education and 
Welfare (HEW) to issue general, government-wide regulations setting 
standards to be followed by all Federal agencies implementing the Act. 
These government-wide regulations, issued on June 12, 1979 and codified 
at 45 CFR part 90, require each agency to publish agency-specific 
regulations implementing the Act and to submit such final agency 
regulations to HEW (now HHS) before publication in the Federal Register 
(see 45 CFR part 90.31). The Act became effective on July 1, 1979--the 
effective date of HEW's final government-wide regulations--and NEH has 
enforced the provisions of the Act since that time. NEH first proposed 
agency-specific regulations implementing the Act on October 4, 1979 (44 
FR 57130), which were closely based on the general, government-wide 
regulations. NEH's original proposed rule adopted many substantively 
identical sections and cross-referenced sections from the government-
wide regulations, rather than repeating them in full. HHS reviewed and 
approved NEH's initial agency-specific regulations in 1985; however, 
NEH did not publish the final regulations.
    Since such a significant amount of time has passed since NEH 
initially drafted the proposed rule, and because regulatory development 
guidelines have changed over the years, NEH determined that it would be 
best to begin the regulatory process anew by drafting new agency-
specific age discrimination regulations. As a practical matter, 
however, the absence of agency-specific regulations has not affected 
NEH's enforcement of prohibitions against discrimination on the basis 
of age in programs or activities receiving financial assistance from 
NEH. Further, NEH has consistently fulfilled its obligation to report 
annually to Congress through HHS on its compliance and enforcement 
activities.

Overview of Proposed Rule

    NEH has designed this proposed rule to fulfill the agency's 
statutory and regulatory obligations to issue a regulation implementing 
the Act that conforms to the government-wide regulations at 45 CFR part 
90.

[[Page 28570]]

    NEH's proposed regulations are divided into four parts: Subpart A--
General; Subpart B Standards for Determining Age Discrimination; 
Subpart C--Responsibilities of NEH Recipients; and Subpart D--
Investigation, Conciliation, and Enforcement Procedures.

Subpart A--General

    Subpart A explains the purpose of NEH's age discrimination 
regulations, which is to set out NEH's policies and procedures in 
accordance with the Act and the government-wide regulations. The 
regulations apply to any program or activity receiving Federal 
financial assistance from NEH. Subpart A also defines terms used in the 
regulations, many of which are identical to the definitions in the 
government-wide regulations. The definition of the term ``recipient'' 
points out the inapplicability of these regulations to assistance 
programs administered directly by the Federal government to 
beneficiaries. With respect to direct assistance programs, the 
regulations may apply whenever direct aid is provided to an individual 
on conditions that the aid is spent in providing services or benefits 
to others. Further, because the Act contains several exceptions which 
limit the general prohibition against age discrimination, the 
regulations provide definitions for two terms that are essential to 
understanding two of those exceptions: ``normal operation'' and 
``statutory objective.''

Subpart B--Standards for Determining Age Discrimination

    Subpart B sets out the standards NEH uses for determining illegal 
age discrimination, which are based on the government-wide regulations. 
The regulations also establish a four-part test for a specific age 
distinction to satisfy the ``normal operation'' or ``statutory 
objective'' requirement for a recipient to use an age-based distinction 
in a program or activity receiving Federal financial assistance. NEH 
will use this four-part test to scrutinize age distinctions, if any, 
which are imposed in NEH-assisted programs, but which are not 
explicitly authorized by a Federal, State or local statute. NEH 
recipients are also permitted to take an action otherwise prohibited by 
the Act if the action is based on ``reasonable factors other than 
age,'' but only if the factor bears a direct and substantial 
relationship to the program's normal operation or to the achievement of 
a statutory objective.

Subpart C--Responsibilities of NEH Recipients

    Subpart C sets forth the duties of NEH recipients. NEH recipients 
are responsible for ensuring that their programs and activities are in 
compliance with the Act and NEH regulations. Where an NEH recipient 
passes on financial assistance to subrecipients, the recipient must 
notify subrecipients of their obligations under the regulations. Under 
these regulations, NEH could require a recipient or subrecipient to 
complete a written self-evaluation of its compliance with the Act and 
these regulations. The self-evaluation must be kept on file for three 
years from its effective date and made available to the public upon 
request.

Subpart D--Investigation, Conciliation, and Enforcement Procedures

    Subpart D establishes the procedures for investigation, 
conciliation, and enforcement of the Act, and closely follows the 
procedural requirements included in the government-wide age 
discrimination regulations. Mediation is the first step in the 
complaint process. NEH will refer all complaints of discrimination 
under the Act to the Federal agency designated by HHS to manage the 
mediation process. Complainants and NEH recipients must participate in 
the effort to reach a mutually satisfactory settlement. Mediation may 
last no more than sixty (60) days from the date NEH first receives the 
complaint. NEH will investigate any complaints that are unresolved 
after mediation or are reopened because the settlement agreement is 
violated. Finally, the regulations permit NEH to withhold funds and 
disburse them to an appropriate alternate recipient, if the alternate 
has demonstrated the ability to comply with the regulations and to 
achieve the goals of the National Foundation on the Arts and the 
Humanities Act of 1965.

Regulatory Procedures

Executive Order 12866, Regulatory Review

    NEH has determined that the proposed rule is not a ``significant 
regulatory action'' under Executive Order 12866 because it will not: 
(1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in Executive Order 
12866. Therefore, the proposed rule is not subject to Office of 
Management and Budget (OMB) review.

Regulatory Flexibility Act

    In accordance with section 605(b) of the Regulatory Flexibility Act 
(RFA) (5 U.S.C. 601, et seq., as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996), the Chairman of NEH 
certifies that the proposed rule will not have a significant economic 
impact on a substantial number of small entities. In making this 
determination, NEH used the definition of small entity set forth in the 
RFA: (1) A small business, as defined by the Small Business 
Administration (SBA) in 13 CFR part 121.201; (2) a small governmental 
jurisdiction, which is a government of a city, county, town, school 
district or special district with a population of less than 50,000; and 
(3) a small organization, which is any non-profit enterprise that is 
independently owned and operated and is not dominant in its field. Some 
NEH grant programs support humanities projects developed by small, 
independently-owned non-profits, such as museums, libraries, and other 
cultural organizations. NEH funds approximately 75-100 small non-
profits each year, which accounts for less than ten percent of NEH's 
annual funding.
    However, the proposed rule, if promulgated in final form, will not 
impose any additional requirements on these small entities because it 
will not substantively change existing requirements, but will merely 
clarify such duties for entities receiving financial assistance from 
NEH. The requirements prohibiting age discrimination by recipients of 
Federal financial assistance contained in the Act and the government-
wide regulations have been in effect since 1979. The proposed rule only 
formalizes those existing requirements for NEH recipients.

Small Business Regulatory Enforcement Fairness Act of 1996

    NEH has determined that the proposed rule is not a ``major rule'' 
as defined by section 251 of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (SBREFA), as amended, Public Law 104-121 (5 U.S.C. 
804). This rule will not result in: (1) An

[[Page 28571]]

annual effect on the economy of $100 million or more; (2) a major 
increase in costs or prices for consumers, individual industries, 
Federal, State, or local government agencies, or geographic regions; or 
(3) significant adverse effects on competition, employment, investment, 
productivity, innovation or the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4 
(2 U.S.C. 1501, et seq.), does not apply to the proposed rule because 
it does not apply to regulatory actions that establish or enforce 
statutory rights that prohibit discrimination on the basis of race, 
color, religion, sex, national origin, age, handicap or disability. 
Further, the proposed rule contains no ``Federal mandate'' under Title 
II of UMRA because UMRA excludes from the definitions of ``Federal 
intergovernmental mandate'' and ``Federal private sector mandate'' 
duties that arise from conditions of Federal assistance and duties that 
arise from participation in a voluntary Federal program. Congress 
mandated in the Act the establishment of these agency-specific 
regulations to enforce the prohibition of discrimination on the basis 
of age in programs or activities receiving Federal financial 
assistance. These regulations do not apply to any program or activity 
unless it applies for and receives financial assistance from NEH. 
Application for, and receipt of, NEH assistance is entirely voluntary. 
In addition, NEH has determined that the proposed rule will not 
significantly or uniquely affect small governments. These regulations 
apply uniformly to all organizational recipients of NEH financial 
assistance.

Paperwork Reduction Act

    NEH has determined that the Paperwork Reduction Act (PRA), 44 
U.S.C. 3501, et seq., does not apply because the proposed rule does not 
impose any new information collection requirements that require OMB 
approval. Section 3518(c)(1)(B) of the PRA exempts from OMB approval, 
collections of information ``during the conduct of . . . (ii) an 
administrative action or investigation involving an agency against 
specific individuals or entities.'' These regulations provide NEH with 
discretionary authority to require information from recipients as part 
of an investigation, thereby eliminating any PRA concerns, because it 
is discretionary and tied to NEH's authority to investigate. Further, 
the proposed rule provides that individuals ``may file'' complaints and 
requires that recipients provide notice to subrecipients of their 
obligations under the Act and the regulations, neither of which involve 
a ``collection of information'' under the PRA.

List of Subjects in 45 CFR Part 1172

    Administrative practice and procedure, Age discrimination, Civil 
rights, Grant programs, Reporting and recordkeeping requirements.

    Dated: May 1, 2013.
Michael P. McDonald,
General Counsel.

    For the reasons stated in the preamble, NEH proposes to amend 45 
CFR Subchapter D by adding part 1172 as follows:

PART 1172--NONDISCRIMINATION ON THE BASIS OF AGE IN FEDERALLY 
ASSISTED PROGRAMS OR ACTIVITIES

Subpart A--General
Sec.
1172.1 Purpose.
1172.2 Application.
1172.3 Definitions.
Subpart B--Standards for Determining Age Discrimination
1172.11 Rules against age discrimination.
1172.12 Exceptions to the rules against age discrimination.
1172.13 Burden of proof.
Subpart C--Responsibilities of NEH Recipients
1172.21 General responsibilities.
1172.22 Notice to subrecipients.
1172.23 Self-evaluation.
1172.24 Information requirements.
Subpart D--Investigation, Conciliation, and Enforcement Procedures
1172.31 Compliance reviews.
1172.32 Complaints.
1172.33 Mediation.
1172.34 Investigation.
1172.35 Prohibition against intimidation or retaliation.
1172.36 Compliance procedure.
1172.37 Hearings, decisions, post-termination proceedings.
1172.38 Remedial action by recipients.
1172.39 Alternate funds disbursal procedure.
1172.40 Exhaustion of administrative remedies.

    Authority: 42 U.S.C. 6101-6107; 45 CFR 90.

Subpart A--General

Sec.  1172.1  Purpose.

    The purpose of this part is to implement the Age Discrimination Act 
of 1975, and as required by the general, government-wide age 
discrimination regulations at 45 CFR part 90. The Act is designed to 
prohibit discrimination on the basis of age in programs or activities 
receiving Federal financial assistance. The Act also permits federally 
assisted programs or activities, and recipients of Federal funds, to 
continue to use certain age distinctions and factors other than age 
which meet the requirements of the Act and these regulations.

Sec.  1172.2  Application.

    (a) The Act and the regulations in this part apply to any program 
or activity receiving financial assistance from the National Endowment 
for the Humanities (NEH).
    (b) The Act does not apply to:
    (1) Any age distinction contained in that part of a Federal, State 
or local statute or ordinance adopted by an elected, general purpose 
legislative body which:
    (i) Provides any benefits or assistance to persons based on age;
    (ii) Established criteria for participation in age-related terms; 
or
    (iii) Described intended beneficiaries or target groups in age-
related terms.
    (2) Any employment practice of any employer, employment agency, 
labor organization, or any labor-management joint apprenticeship 
training program, except for any program or activity receiving Federal 
financial assistance for public service employment under the Workforce 
Investment Act of 1998 (29 U.S.C. 2801, et seq.).

Sec.  1172.3  Definitions.

    As used in these regulations, the term:
    Act means the Age Discrimination Act of 1975, as amended, 42 U.S.C. 
6101, et seq. (Title III of Pub. L. 94-135).
    Action means any act, activity, policy, rule, standard, or method 
of administration; or the use of any policy, rule, standard, or method 
of administration.
    Age means how old a person is, or the number of elapsed years from 
the date of a person's birth.
    Age distinction means any action using age or an age-related term.
    Age-related term means a word or words which necessarily imply a 
particular age or range of ages (for example, children, adult, older 
persons, but not student).
    Agency means a Federal department or agency that is empowered to 
extend financial assistance.
    Chairman means the Chairman of the National Endowment for the 
Humanities.
    Federal financial assistance means any grant, entitlement, loan, 
cooperative

[[Page 28572]]

agreement, contract (other than a procurement contract or a contract of 
insurance or guaranty), or any other arrangement by which NEH provides 
or otherwise makes available assistance in the form of:
    (1) Funds;
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use of 
property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of property if 
the Federal share of its fair market value is not returned to the 
Federal Government.
    Normal operation means the operation of a program or activity 
without significant changes that would impair its ability to meet its 
objectives.
    Program or activity means all of the operations of:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or local government, or
    (ii) The entity of such State or local government that distributes 
Federal financial assistance and each such department or agency (and 
each other State or local government entity) to which the assistance is 
extended, in the case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, 
or a public system of higher education, or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole, or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (a), (b), or (c) of this definition, 
any part of which is extended Federal financial assistance.
    Recipient means any State or its political subdivision, any 
instrumentality of a State or its political sub-division, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended, directly or 
through another recipient. Recipient includes any successor, assignee, 
or transferee, but excludes the ultimate beneficiary of the assistance.
    Secretary means the Secretary of the Department of Health and Human 
Services.
    Statutory objective means any purpose of a program or activity 
expressly stated in any Federal statute, State statute, or local 
statute or ordinance adopted by an elected, general purpose legislative 
body.
    Subrecipient means any of the entities in the definition of 
recipient to which a recipient extends or passed on Federal financial 
assistance. A subrecipient is generally regarded as a recipient of 
Federal financial assistance and has all the duties of a recipient in 
these regulations.
    United States means the fifty states, the District of Columbia, 
Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the 
Canal Zone, the Trust Territory of the Pacific Islands, the Northern 
Marianas, and the territories and possessions of the United States.

Subpart B--Standards for Determining Age Discrimination

Sec.  1172.11  Rules against age discrimination.

    The rules stated in this section are limited by the exceptions 
contained in Sec.  1172.12.
    (a) General rule: No person in the United States shall, on the 
basis of age, be excluded from participation in, be denied the benefits 
of, or be subjected to discrimination under, any program or activity 
receiving Federal financial assistance.
    (b) Specific rules: A recipient may not, in any program or activity 
receiving Federal financial assistance, directly or through 
contractual, licensing, or other arrangements use age distinctions or 
take any other actions which have the effect, on the basis of age, of:
    (1) Excluding individuals from, denying them the benefits of, or 
subjecting them to discrimination under, a program or activity 
receiving Federal financial assistance, or
    (2) Denying or limiting individuals in their opportunity to 
participate in any program or activity receiving Federal financial 
assistance.
    (c) The specific forms of age discrimination listed in paragraph 
(b) of this section do not necessarily constitute a complete list of 
discriminatory actions.

Sec.  1172.12  Exceptions to the rules against age discrimination.

    (a) Normal operation or statutory objective of any program or 
activity. A recipient may take an action otherwise prohibited by Sec.  
1172.11 if the action reasonably takes into account age as a factor 
necessary to the normal operation or the achievement of any statutory 
objective of a program or activity, if:
    (1) Age is used as a measure or approximation of one or more other 
characteristics;
    (2) The other characteristic(s) must be measured or approximated in 
order for the normal operation of the program or activity to continue, 
or to achieve any statutory objective of the program or activity;
    (3) The other characteristic(s) can be reasonably measured or 
approximated by the use of age; and
    (4) The other characteristic(s) are impractical to measure directly 
on an individual basis.
    (b) Reasonable factors other than age. A recipient may take an 
action otherwise prohibited by Sec.  1172.11 which is based on a factor 
other than age, even though that action may have a disproportionate 
effect on persons of different ages. An action may be based on a factor 
other than age only if the factor bears a direct and substantial 
relationship to the normal operation of the program or activity or to 
the achievement of a statutory objective.
    (c) Affirmative action by recipient. Even in the absence of a 
finding of discrimination, a recipient may take affirmative action to 
overcome the effects or conditions that resulted in limited 
participation in the recipient's program or activity on the basis of 
age.
    (d) Special benefits for children and the elderly. If a recipient 
operating a program or activity provides special benefits to the 
elderly or to children, such use of age distinctions shall be presumed 
to be necessary to the normal operation of the program or activity, 
notwithstanding the provisions of Sec.  1172.11.

Sec.  1172.13  Burden of proof.

    The recipient of Federal financial assistance bears the burden of 
proving that an age distinction or other action falls within the 
exceptions outlined in Sec.  1172.12.

Subpart C--Responsibilities of NEH recipients

Sec.  1172.21  General responsibilities.

    A recipient has responsibility to ensure that its programs or 
activities are in compliance with the Act and these regulations and to 
take steps to

[[Page 28573]]

eliminate violations of the Act and these regulations. A recipient also 
has responsibility to maintain records, provide information, and to 
afford NEH access to its records to the extent NEH finds necessary to 
determine whether the recipient is in compliance with the Act and these 
regulations.

Sec.  1172.22  Notice to subrecipients.

    Where a recipient passes on Federal financial assistance from NEH 
to subrecipients, the recipient must provide the subrecipients with 
written notice of their obligations under the Act and these 
regulations. Each recipient must also make necessary information 
available to its beneficiaries in order to inform them about the 
protections against discrimination provided by the Act and these 
regulations.

Sec.  1172.23  Self-evaluation.

    As part of a compliance review under Sec.  1172.31 or a complaint 
investigation under Sec.  1172.34, NEH may require a recipient 
employing the equivalent of fifteen (15) or more full time employees to 
complete a written self-evaluation, in a manner specified by NEH, of 
any age distinction imposed in its program or activity receiving 
Federal financial assistance. A recipient must take corrective and 
remedial action whenever a self-evaluation indicates a violation of the 
Act, and the recipient must make the self-evaluation available upon 
request to NEH and to the public for a period of three (3) years 
following its completion.

Sec.  1172.24  Information requirements.

    Each recipient must keep records containing information necessary 
to determine whether the recipient is in compliance with the Act and 
these regulations, and must make them available to NEH upon request. 
Each recipient must also permit reasonable access by NEH to its books, 
records, accounts, and other facilities and sources of information, to 
the extent necessary for NEH to determine whether the recipient is in 
compliance with the Act and this part.

Subpart D--Investigation, Conciliation, and Enforcement Procedures

Sec.  1172.31  Compliance reviews.

    (a) NEH may conduct compliance reviews, pre-award reviews, and 
other similar procedures in order to investigate and correct violations 
of the Act and these regulations. NEH may conduct these reviews even in 
absence of a complaint against the recipient. Reviews may be as 
comprehensive as necessary to determine whether a recipient is in 
compliance with the Act and this part.
    (b) If a compliance review or pre-award review indicates a 
violation of the Act and these regulations, NEH will attempt to contact 
the recipient and achieve the recipient's voluntary compliance with the 
Act. If the recipient does not comply voluntarily, NEH may pursue 
enforcement efforts as described in Sec.  1172.36.

Sec.  1172.32  Complaints.

    (a) Any person, individually or as a member of a class or on behalf 
of others, may file a complaint with NEH, alleging discrimination 
prohibited by the Act and the regulations in this part based on an 
action occurring on or after July 1, 1979. A complainant must file a 
complaint in writing within 180 days from the date that the complainant 
first had knowledge of the alleged act of discrimination. However, for 
good cause, NEH may extend this time limit. NEH will consider the date 
a complaint is filed as the date when the complaint is sufficient to be 
processed.
    (b) Complaints must include a written and signed statement 
identifying the parties involved, describing the alleged violation, and 
stating the date on which the complainant first had knowledge of the 
alleged violation.
    (c) NEH will attempt to facilitate the filing of complaints 
wherever possible, including taking the following measures, as 
appropriate:
    (1) Widely disseminating information regarding the obligations of 
recipients under the Act and this part,
    (2) Permitting a complainant to add information to the complaint to 
meet the requirements of a sufficient complaint,
    (3) Notifying the complainant and the recipient (or their 
representatives) of their rights and obligations under the complaint 
procedure, including the right to have a representative at all stages 
of the complaint procedure, and/or
    (4) Notifying the complainant and the recipient (or their 
representatives) of their right to contact NEH for information and 
assistance regarding the complaint resolution process.
    (d) NEH will return any complaint that is unsigned or that is not 
within NEH's jurisdiction for any other reason, and NEH will provide an 
explanation for the return.

Sec.  1172.33  Mediation.

    (a) Referral of complaints for mediation. NEH will promptly refer 
all complaints that fall within the jurisdiction of these regulations, 
and that contain all information necessary for further processing, to 
the agency designated by the Secretary to manage the mediation process.
    (b) Both the complainant and the recipient must participate in the 
mediation process to the extent necessary to reach an agreement, or for 
the mediator to make an informal judgment that an agreement is 
impossible. The complainant and recipient must meet with the mediator 
at least once before NEH will accept a judgment that an agreement is 
impossible. However, the recipient and the complainant need not meet 
with the mediator at the same time.
    (c) If the complainant and recipient reach a mutually satisfactory 
resolution of the complaint during the mediation period, they must 
prepare an agreement in writing. The mediator will send a copy of the 
settlement agreement to NEH. NEH will take no further action based on 
that complaint unless it appears that the complainant or the recipient 
has failed to comply with the agreement.
    (d) The mediator will protect the confidentiality of all 
information obtained in the course of the mediation process, and no 
mediator shall testify in any adjudicative proceeding, produce any 
document, or otherwise disclose any information obtained in the course 
of the mediation process without prior approval of the head of the 
mediation agency.
    (e) If the complainant and recipient do not reach a mutually 
satisfactory resolution during mediation within sixty (60) days after 
NEH receives the complaint, the mediator must return the complaint to 
NEH for investigation. The mediator may return a complaint at any time 
before the end of the sixty-day period if it appears that the complaint 
cannot be resolved through mediation. The mediator may extend this 
sixty-day period, provided NEH concurs, for not more than thirty (30) 
days, if the mediator determines that resolution is likely to occur 
within such period.

Sec.  1172.34  Investigation.

    (a) Informal investigation. (1) NEH will investigate complaints 
that are unresolved after mediation or are reopened because of a 
violation of a settlement agreement.
    (i) As part of this initial investigation, NEH will use informal 
fact-finding methods, including joint or separate discussions with the 
complainant and the recipient to establish the facts, and, if possible, 
resolve the complaint to the mutual satisfaction of the parties. NEH 
may seek the assistance of any involved State agency.
    (ii) NEH will put any settlement agreement in writing and have it 
signed

[[Page 28574]]

by the parties and NEH. The settlement is not a finding of 
discrimination against a recipient.
    (2) The settlement shall not affect the operation of any other 
enforcement effort of NEH, including compliance reviews and 
investigation of other complaints which may involve the recipient.
    (b) Formal investigation. If NEH cannot resolve the complaint 
through informal investigation, it will develop formal findings through 
further investigation of the complaint. If the formal investigation 
indicates a violation of the Act or these regulations, NEH will attempt 
to obtain voluntary compliance. If NEH cannot obtain voluntary 
compliance, it will arrange for enforcement as described in Sec.  
1172.36.

Sec.  1172.35  Prohibition against intimidation or retaliation.

    A recipient may not engage in acts of intimidation or retaliation 
against any person who attempts to assert a right protected by the Act 
or this part, or cooperates in any mediation, investigation, hearing, 
or other part of NEH's investigation, conciliation, and enforcement 
process.

Sec.  1172.36  Compliance procedure.

    (a) NEH may enforce the Act and the regulations in this part 
through:
    (1) Termination of a recipient's Federal financial assistance under 
the program or activity involved where the recipient has violated the 
Actor these regulations. A recipient must have the opportunity for a 
hearing on record before an administrative law judge, who must 
determine that a violation has occurred. The determination of the 
recipient's violation may be made only after a recipient has had an 
opportunity for a hearing on the record before an administrative law 
judge. Therefore, NEH will not terminate a recipient's Federal 
financial assistance in a case that has been settled in mediation, or 
prior to a hearing, unless the case is reopened because of a violation 
of the settlement agreement.
    (2) Any other means authorized by law, including but not limited 
to:
    (i) Referral to the Department of Justice for proceedings to 
enforce any rights of the United States or obligations of the recipient 
created by the Act or these regulations.
    (ii) Use of any requirement of or referral to any Federal, State, 
or local government agency that will have the effect of correcting a 
violation of the Act or this part.
    (b) NEH will limit any termination under Sec.  1172.36(a)(1) to the 
particular recipient and particular program or activity, or portion 
thereof, that NEH finds in violation of the Act or these regulations. 
NEH will not base its decision to terminate on any other program or 
activity of the recipient that does not receive Federal financial 
assistance from NEH.
    (c) NEH will not take action under Sec.  1172.36(a) until:
    (1) The Chairman has advised the recipient of its failure to comply 
with the Act or these regulations, and that NEH has determined that 
voluntary compliance cannot be obtained, and
    (2) Thirty (30) days have elapsed after the Chairman has sent a 
written report of the circumstances and grounds of the action to the 
Congressional Committee(s) having legislative jurisdiction over the 
program or activity involved. The Chairman will file such report 
whenever it takes action under Sec.  1172.36(a).
    (d) NEH also may defer granting new Federal financial assistance to 
a recipient when a hearing under Sec.  1172.36(a)(1) is initiated.
    (1) New Federal financial assistance includes all assistance for 
which NEH requires an application or approval, including renewal or 
continuation of existing activities, or authorization of new 
activities, during the deferral period. New Federal financial 
assistance does not include assistance approved prior to the beginning 
of a termination hearing under Sec.  1172.36(a)(1), or increases in 
funding as a result of changed computation of formula awards.
    (2) NEH will not begin a deferral until the recipient has received 
a notice of an opportunity for a hearing under Sec.  1172.36(a)(1). NEH 
will not continue a deferral for more than sixty (60) days unless a 
hearing has begun within that time, or the time for beginning the 
hearing has been extended by mutual written consent of the recipient 
and NEH. NEH will not continue a deferral for more than thirty (30) 
days after the close of the hearing, unless the hearing results in a 
finding against the recipient. If the hearing results in a finding 
against the recipient, NEH must terminate funds.

Sec.  1172.37  Hearings, decisions, post-termination proceedings.

    Certain NEH procedural provisions applicable to Title VI of the 
Civil Rights Act of 1964 apply to NEH enforcement of these regulations. 
They are found at 45 CFR 1110.9 through 1110.11.

Sec.  1172.38  Remedial action by recipients.

    Where NEH finds a recipient has discriminated on the basis of age, 
the recipient shall take any remedial action that NEH may require to 
overcome the effects of discrimination. If another recipient exercises 
control over the recipient that has discriminated, NEH may require both 
recipients to take remedial action.

Sec.  1172.39  Alternate funds disbursal procedure.

    When NEH withholds funds from a recipient under these regulations, 
the Chairman may disburse the withheld funds directly to an alternate 
recipient otherwise eligible for NEH support. NEH will require any 
alternate recipient to demonstrate the ability to comply with these 
regulations and to achieve the goals of the National Foundation on the 
Arts and the Humanities Act of 1965, Public Law 89-209 (20 U.S.C. 
951)--the Federal statute authorizing the Federal financial assistance.

Sec.  1172.40  Exhaustion of administrative remedies.

    (a) A complainant may file a civil action under the Act and these 
regulations following the exhaustion of administrative remedies. 
Administrative remedies are exhausted if 180 days have elapsed since 
the complainant filed the complaint and NEH has made no finding with 
regard to the complaint, or NEH issues any finding in favor of the 
recipient.
    (b) If either of the conditions set forth in Sec.  1172.40(a) is 
satisfied, NEH will:
    (1) Promptly advise the complainant of this fact,
    (2) Advise the complainant of his or her right, under section 
305(e) of the Act, to bring a civil action for injunctive relief that 
will effect the purposes of the Act, and
    (3) Inform the complainant:
    (i) That a civil action can only be brought in a United States 
district court for the district in which the recipient is found or 
transacts business,
    (ii) That a complainant prevailing in a civil action has the right 
to be awarded the costs of the action, including reasonable attorney's 
fees, but that these costs must be demanded in the complaint,
    (iii) That before commencing the action, the complainant must give 
thirty (30) days' notice by registered mail to the Secretary, the 
Attorney General of the United States, the Chairman, and the recipient,
    (iv) That the notice must state the alleged violation of the Act, 
the relief requested, the court in which the action will be brought, 
and whether or not attorney's fees are demanded in the event the 
complainant prevails, and

[[Page 28575]]

    (v) That no action may be brought if the same alleged violation of 
the Act by the same recipient is the subject of a pending action in any 
court of the United States.

[FR Doc. 2013-10844 Filed 5-14-13; 8:45 am]
BILLING CODE 7536-01-P
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