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[Federal Register: June 4, 2010 (Volume 75, Number 107)]
[Rules and Regulations]               
[Page 31702-31709]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04jn10-12]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 7

[EPA-HQ-OA-2004-0002; FRL-9158-9]
RIN 2090-AA37

 
Nondiscrimination on the Basis of Age in Programs or Activities 
Receiving Federal Assistance from the Environmental Protection Agency

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on Nondiscrimination on the 
Basis of Age in Programs or Activities Receiving Federal Assistance 
from the Environmental Protection Agency. This document sets out EPA 
rules for implementing the Age Discrimination Act of 1975, as amended. 
The Act prohibits discrimination on the basis of age in programs or 
activities receiving Federal assistance.

DATES: This rule is effective on October 4, 2010 without further 
notice, unless EPA receives adverse comment by August 3, 2010. If EPA 
receives adverse comment, we will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OA-
2004-0002, by one of the following methods:
    http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: docket.oei@epa.gov.

[[Page 31703]]

     Fax: 202-566-0562.
     Mail: OEI Docket, U.S. EPA, Mail Code: 28221T, 1200 
Pennsylvania Ave., NW., Washington, DC 20460.
     Hand delivery: OEI Docket, EPA Docket Center, Room 3334, 
EPA West Building, 1301 Constitution Ave., NW., Washington, DC 20460. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangement should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OA-2004-
0002. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the OEI Docket in the 
EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution 
Ave., NW., Washington, DC. The EPA/DC Public Reading Room is open from 
8 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. 
The telephone number for the Reading Room is 202-566-1744, and the 
telephone number for the OEI Docket is 202-566-1752.
    Submitting CBI: Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
as CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedure set forth in 40 CFR Part 2.

Tips for Preparing Your Comments

     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part of section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

FOR FURTHER INFORMATION CONTACT: Tom Walker, U.S. Environmental 
Protection Agency, Office of Civil Rights, (Mail Code 1201A), 1200 
Pennsylvania Ave., NW., Washington, DC 20460, telephone (202) 343-9894.

SUPPLEMENTARY INFORMATION:

Why Is EPA Using a Direct Final Rule?

    EPA is publishing this rule without a prior proposed rule because 
we view this as a noncontroversial action and anticipate no adverse 
comment because (1) entities that have applied for and received 
assistance from EPA comply with the Age Discrimination Act of 1975. 
This rule implements the Age Discrimination Act of 1975, and would not 
substantively change existing obligations for recipients. (2) The 
current action has been reviewed and approved by the U.S. Department of 
Health and Human Services (HHS), the lead Federal agency that sets the 
government-wide standards to be followed by all Federal agencies 
implementing the Age Discrimination Act. However, in the ``Proposed 
Rules'' section of today's Federal Register, we are publishing a 
separate document that will serve as the proposed rule to the Age 
Discrimination regulations if adverse comments are received on this 
direct final rule. We will not institute a second comment period on 
this action. Any parties interested in the commenting must do so at 
this time. For further information about commenting on this rule, see 
the ADDRESSES section of this document.
    If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final rule will not take effect. We would address all public 
comments in any subsequent final rule based on the proposed rule.

I. General Information

    These regulations implement provisions of the Age Discrimination 
Act of 1975, as amended. The Age Discrimination Act of 1975, 42 U.S.C. 
6101 et. seq., (The Act) prohibits discrimination on the basis of age 
in programs or activities receiving Federal assistance. The Act applies 
to persons of all ages. The Act also contains specific exceptions that 
permit the use of certain age distinctions and factors other than age 
that meet the Act's requirements. The Act however, does not cover 
employment discrimination on the basis of age. The Age Discrimination 
in Employment Act of 1967, 29 U.S.C. 621 et. seq., (ADEA) applies 
specifically to employment practices and programs, both in the public 
and private sectors, and applies only to persons 40 and over. 
Complaints of employment discrimination based on age against an 
individual by recipients of Federal financial assistance are subject to 
the ADEA and should be filed administratively with the Equal Employment 
Opportunity Commission

[[Page 31704]]

(EEOC) (see 29 CFR part 1626). The EEOC has recently published in the 
Federal Register a Notice of Proposed Rulemaking (NPRM) under the 
authority of the ADEA (see 75 FR 7212 (Feb. 18, 2010)). EEOC's NPRM 
defines the term ``reasonable factors other than age'' (RFOA) under the 
ADEA, a term that is also used in the Age Discrimination Act and in the 
subject regulation. Because of the different statutory bases for the 
two regulations, the use of the term RFOA in EPA's regulation 
implementing the Age Discrimination Act has no effect on EEOC's 
regulation under the ADEA and the use of the term RFOA in EEOC's 
regulation has no effect on EPA's regulation. Nonetheless, EPA would 
accept comments about any potential impact of EEOC's definition on 
EPA's regulation. Parties interested in the ADEA action should refer to 
the Federal Register; 75 FR 7212 (Feb. 18, 2010).
    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, which were issued on June 12, 1979, 
(45 CFR part 90; 44 FR 33768) and became effective on July 1, 1979, 
required each Federal agency providing assistance to any program or 
activity to publish final regulations implementing the Act, and to 
submit final agency regulations to HEW (now the Department of Health 
and Human Services (HHS)), before publication in the Federal Register. 
(See 45 CFR 90.31.) The Act became effective on the effective date of 
HEW's final government-wide regulations (i.e., July 1, 1979). The Act 
was amended by the Civil Rights Restoration Act of 1987, Public Law 
100-259, 102 Stat. 28, to add a definition for the term ``program or 
activity.''
    The Age discrimination regulations apply to all applicants for, and 
recipients of, EPA assistance in the operation of their programs or 
activities, and only establish and enforce statutory rights that 
prohibit discrimination on the basis of age. These regulations do not 
apply to any program or activity unless that program or activity 
applies for and/or receives Federal assistance from the Agency.
    EPA's Age discrimination regulations which implement the Age 
Discrimination Act of 1975, will amend the U.S. Code of Federal 
Regulations (40 CFR Part 7) by adding Age as a protected classification 
to the Agency's nondiscrimination regulations. Currently, the Agency's 
nondiscrimination regulations prohibit discrimination on the basis of 
race, color, national origin, sex (gender), or disability in any 
program or activity receiving EPA assistance. The Age Discrimination 
regulations will become the new Part 7 Subpart F--Discrimination 
Prohibited on the Basis of Age.
    The regulation states, ``No person in the United States may, 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 EPA assistance.'' (40 CFR 7.140) The specific prohibited 
actions are patterned after the regulations issued under Title VI of 
the Civil Rights Act of 1964 (40 CFR 7.30). As a general rule, separate 
or different treatment which denies or limits services from, or 
participation in, a program receiving Federal funds will be prohibited 
by these regulations.
    The Act does include some exceptions to the general rule against 
age discrimination. The regulations provide definitions for two terms 
``normal operations'' and ``statutory objective'' (40 CFR 7.25) that 
provide the framework for which the exceptions can apply. (40 CFR 
7.150) For example, the normal operations and objectives of our public 
schools are to educate our nation's children. Public schools, for 
instance, have received Federal environmental grants, to establish 
ecology clubs or educate students on water restoration and beach 
ecology. These school programs are just a few examples of recipients 
operating under normal conditions and meeting their objectives while 
receiving Federal assistance targeted at a specific age group, and are 
therefore, permissible under the Act.
    Recipients of EPA funds are also permitted to take an action 
otherwise prohibited by the Act, if the action is based on ``reasonable 
factors other than age.'' (40 CFR 7.155) For example, children may be 
more vulnerable to environmental exposures (i.e. lead poisoning) than 
adults because their bodily systems are still developing. Providing 
grants to recipients to research these specific exposure risks in 
children play an important role in protecting children's health. Even 
though environmental toxins may also affect adults, it is thought that 
children are generally more vulnerable to such environmental exposures. 
Thus, recipients that are solely studying the unique environmental 
exposure risks to children (targeting a specific age group) are taking 
actions based on ``reasonable factors other than age'', and, such 
studies are therefore permissible under the Act. As noted above, the 
use of the term ``reasonable factors other than age'' in EPA's 
regulation has no effect on EEOC's RFOA definition under the ADEA and, 
conversely, the use of the term RFOA by the EEOC has no effect on EPA's 
regulation.
    In addition, these regulations incorporate the provisions of the 
general regulations (45 CFR part 90; 44 FR 33768) permitting a 
recipient of a program to provide special benefits for children and the 
elderly. (40 CFR 7.165) These special benefits often take the form of 
special discounts or reduced fees for the elderly or children in a 
Federally funded program.

II. Rulemaking History

    EPA first proposed regulations implementing the Age Discrimination 
Act as part of its proposed consolidated nondiscrimination regulations 
on January 8, 1981 (46 FR 2306-2312). The Age Discrimination Act 
provisions were not included in the final rule published on January 12, 
1984 (49 FR 1656-66), because they had not been approved by HHS as 
required by the Act. During 1993 through 1998, the regulations were 
submitted to HHS and went through different revisions in an on-going 
effort between EPA and HHS. Because of the time lapse since the 
regulations were initially drafted, in 2002 EPA had conducted an 
internal re-review of the draft regulations. The draft Age 
Discrimination Act regulations were then resubmitted to HHS in 2002, 
which granted its approval later that year. In January 2003, new 
regulatory development guidelines were issued, which spurred another 
delay in the publication of EPA's draft Age regulations. Between 2003 
and 2004, EPA's internal re-review resulted in various revisions to the 
draft regulations based on the new regulatory development guidelines. 
In 2005, EPA resubmitted its final draft Age discrimination regulations 
to HHS. The revised regulations were subsequently approved by HHS in 
2006. EPA is now publishing these regulations as a direct final rule 
along, with a parallel proposed rule. Any comments submitted during the 
1981, public comment period pertaining to the Age provisions of the 
consolidated nondiscrimination regulations are no longer available for 
viewing. Comments on the current rule are welcome. If EPA receives 
public comment on the current direct final rule, we will publish a 
timely withdrawal in the Federal Register informing the public that 
this direct final rule will not take effect. We would address all 
public comments in any subsequent final rule based on the current 
parallel proposed rule as mentioned above.

[[Page 31705]]

III. Statutory and Executive Orders Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action.'' Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under EO 12866 and any changes made in response to OMB 
recommendations have been documented in the docket for this action.

B. Paperwork Reduction Act of 1995

    This action does not impose any new information collection burden. 
EPA Form 4700-4 (Preaward Compliance Review Report for All Applicants 
Requesting Federal Assistance), which is used to collect compliance 
information under EPA's nondiscrimination regulations, already requests 
civil rights compliance information based on age under the Age 
Discrimination Act of 1975. The current version, which also requests 
civil rights compliance information based on race, color, national 
origin, sex, or handicap as well as age, has been in use since January 
1990. The Office of Management and Budget (OMB) has previously approved 
the information collection requirements contained in the existing 
regulations at 40 CFR Part 7 under the provisions of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control 
number 2030-0020. The OMB control numbers for EPA's regulations in 40 
CFR are listed in 40 CFR Part 9.

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the U.S. Small Business Administration in 13 CFR 121.201; (2) a 
small governmental jurisdiction that 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 that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's direct final rule 
on small entities, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
This direct final rule will not impose any requirements on small 
entities because it only formalizes existing requirements for entities 
receiving assistance from EPA and would not substantively change 
existing obligations on recipients. The requirements prohibiting age 
discrimination by recipients of Federal assistance that are in the Age 
Discrimination Act and the government-wide regulations have been in 
effect since 1979.

D. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's rule contains no Federal mandates under the regulatory 
provisions of Title II of the UMRA for State, local, or Tribal 
governments or the private sector for the following reasons: (1) The 
UMRA excludes from the definitions of ``Federal intergovernmental 
mandate'' and ``Federal private sector mandate'' duties that arise from 
conditions of Federal assistance; (2) The UMRA generally excludes from 
the definition of ``Federal intergovernmental mandate'' duties that 
arise from participation in a voluntary Federal program; (3) The UMRA 
excludes from the definition of ``Federal private sector mandate'' 
duties that arise from participation in a voluntary Federal program; 
and (4) The UMRA does not apply to rules that establish or enforce 
statutory rights that prohibit discrimination on the basis of race, 
color, religion, sex, national origin, age, handicap, or disability. 
These regulations were mandated by Congress in the Act. These 
regulations only establish and enforce statutory rights that prohibit 
discrimination on the basis of age. These regulations do not apply to 
any program or activity unless that program or activity applies for and 
receives Federal assistance from the Agency. Application for, and 
receipt of, Federal assistance from the Agency is entirely voluntary. 
No program or activity is required to apply for, or accept, Federal 
assistance from the Agency. Thus, today's rule is not subject to the 
requirements of sections 202 and 205 of the UMRA.
    EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. These regulations apply uniformly to all recipients of 
Federal assistance from the Agency, regardless of whether the recipient 
is a small government. Moreover, the application for, and acceptance 
of, Federal assistance from the Agency that triggers the applicability 
of these regulations is entirely voluntary. Furthermore, it has already 
been determined that these regulations will not have a significant 
economic impact on small entities.

E. Executive Order 13132: Federalism

    Executive Order 13132 (64 FR 43255), entitled ``Federalism,'' 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' is defined in the Executive Order 
to

[[Page 31706]]

include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.''
    This direct final rule does not have federalism implications. It 
will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132. This rule does not 
directly impose any obligations on the States and there are no 
significant compliance costs associated with it. This rule only applies 
to State and non-State entities that apply for and receive assistance 
from EPA. When the recipient receives the EPA assistance, they accept 
the obligation to comply with EPA's Age Discrimination Act implementing 
regulations. Compliance obligations are, therefore, voluntary and 
contractual. No entity is required to apply for or accept EPA 
assistance. Thus, Executive Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this direct final 
rule from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175 (65 FR 67249), entitled ``Consultation and 
Coordination with Indian Tribal Governments,'' requires EPA to develop 
an accountable process to ensure ``meaningful and timely input by 
Tribal officials in the development of regulatory policies that have 
Tribal implications.'' This direct final rule does not have Tribal 
implications, as specified in Executive Order 13175. This rule does not 
directly impose any obligations on the Tribes and there are no 
significant compliance costs associated with it. This rule only applies 
to Tribal and non-Tribal entities that apply for and receive assistance 
from EPA. When the recipient receives the EPA assistance, it accepts 
the obligation to comply with EPA's Age Discrimination Act implementing 
regulations. Compliance obligations are, therefore, voluntary and 
contractual. No entity is required to apply for or accept EPA 
assistance. Thus, Executive Order 13175 does not apply to this rule. 
EPA specifically solicits additional comment on this direct final rule 
from Tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health & Safety Risks

    Executive Order 13045 (62 FR 19885), ``Protection of Children from 
Environmental Health Risks and Safety Risks,'' applies to any rule 
that: (1) Is determined to be ``economically significant'' as defined 
under Executive Order 12866, and (2) concerns an environmental health 
or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This direct final rule is not 
subject to Executive Order 13045 because it does not establish an 
environmental standard intended to mitigate health or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. EPA is taking 
action to approve rules for implementing the Age Discrimination Act of 
1975, as amended. The Act prohibits discrimination on the basis of age 
in programs or activities receiving Federal assistance. Accordingly, we 
have concluded that this rule is not likely to have any adverse energy 
effects.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272n) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This direct 
final rulemaking does not involve technical standards. Therefore, EPA 
is not considering the use of any voluntary consensus standards. EPA 
welcomes comments on this aspect of the direct final rulemaking and, 
specifically, invites the public to identify potentially-applicable 
voluntary consensus standards and to explain why such standards should 
be used in this regulation.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. EPA is taking action to approve rules for implementing the 
Age Discrimination Act of 1975, as amended. The Act prohibits 
discrimination on the basis of age in programs or activities receiving 
Federal assistance. This rule does not adversely affect minority or 
low-income populations therefore, we have concluded that this rule will 
not have disproportionately high and adverse human health or 
environmental effects on minority or low-income populations.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the

[[Page 31707]]

Congress and to the Comptroller General of the United States. EPA will 
submit a report containing this rule and other required information to 
the U.S. Senate, the U.S. House of Representatives, and the Comptroller 
General of the United States prior to publication of the rule in the 
Federal Register. A Major rule cannot take effect until 60 days after 
it is published in the Federal Register. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2). This rule will be effective 
October 4, 2010.

List of Subjects in 40 CFR Part 7

    Environmental protection, Administrative practice and procedure, 
Age discrimination, Civil rights, Equal employment opportunity, 
Individuals with disabilities, Reporting and recordkeeping 
requirements, Sex discrimination.

    Dated: May 27, 2010.
Lisa P. Jackson,
Administrator.

0
For the reasons stated in the preamble, 40 CFR part 7 is amended as 
follows:

PART 7--NONDISCRIMINATION IN PROGRAMS OR ACTIVITIES RECEIVING 
FEDERAL ASSISTANCE FROM THE ENVIRONMENTAL PROTECTION AGENCY

0
1. The authority citation for part 7 is revised to read as follows:

    Authority: 42 U.S.C. 2000d to 2000d-7 and 6101 et seq.; 29 
U.S.C. 794; 33 U.S.C. 1251nt.

0
2. Section 7.10 is revised to read as follows:

Sec.  7.10  Purpose of this part.

    This part implements: 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; and section 13 of the 
Federal Water Pollution Control Act Amendments of 1972, Public Law 92-
500, (collectively, the Acts).

0
3. Section 7.25 is amended by adding the definitions for ``Action,'' 
``Age,'' ``Age distinction,'' ``Age-related term,'' ``Normal 
operation,'' and ``Statutory objective'' in alphabetical order to read 
as follows:

Sec.  7.25  Definitions.

* * * * *
    Action, for purposes of subpart F of this part, means any act, 
activity, policy, rule, standard, or method of administration; or the 
use of any policy, rule, standard, or method of administration.
* * * * *
    Age, for purposes of subpart F of this part, means how old a person 
is, or the number of elapsed years from the date of a person's birth.
    Age distinction, for purposes of subpart F of this part, means any 
action using age or an age-related term.
    Age-related term, for purposes of subpart F of this part, means a 
word or words which necessarily imply a particular age or range of ages 
(for example; ``children,'' ``adult,'' ``older persons,'' but not 
``student'' or ``grade'').
* * * * *
    Normal operation, for purposes of subpart F of this part, means the 
operation of a program or activity without significant changes that 
would impair its ability to meet its objectives.
* * * * *
    Statutory objective, for purposes of subpart F of this part, 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.
* * * * *

0
4. Section 7.80(c)(1) is revised to read as follows:

Sec.  7.80  Applicants.

* * * * *
    (c) * * *
    (1) Notice of any lawsuit pending against the applicant alleging 
discrimination on the basis of race, color, sex, age, handicap, or 
national origin;
* * * * *

0
5. Section 7.85 is amended by revising paragraph (a)(2), by 
redesignating the introductory text of paragraph (c) after the heading 
as paragraph (c)(1), and adding paragraph (c)(2) to read as follows:

Sec.  7.85  Recipients.

    (a) * * *
    (2) Racial/ethnic, national origin, age, sex and handicap data, or 
EPA Form 4700-4 information submitted with its application;
* * * * *
    (c) Self-evaluation. (1) * * *
    (2) Each recipient employing the equivalent of 15 or more full time 
employees may be required to complete a written self-evaluation of its 
compliance under the Age Discrimination Act as part of a compliance 
review or complaint investigation. This self-evaluation will pertain to 
any age distinction imposed in its program or activity receiving 
Federal assistance from EPA. If required, each recipient's self-
evaluation shall identify and justify each age distinction imposed by 
the recipient and each recipient shall take corrective and remedial 
action whenever a self-evaluation indicates a violation of the Age 
Discrimination Act.
* * * * *

0
6. The first sentence in Sec.  7.95(a) is revised to read as follows:

Sec.  7.95  Notice of nondiscrimination.

* * * * *
    (a) Requirements. A recipient shall provide initial and continuing 
notice that it does not discriminate on the basis of race, color, 
national origin, age, or handicap in a program or activity receiving 
EPA assistance or, in programs or activities covered by section 13, on 
the basis of sex. * * *
* * * * *

0
7. The third sentence in Sec.  7.110(a) is revised to read as follows:

Sec.  7.110  Preaward compliance.

* * * * *
    (a) * * * When the OCR cannot make a determination on the basis of 
this information, additional information will be requested from the 
applicant, local government officials, or interested persons or 
organizations, including aged and handicapped persons or organizations 
representing such persons. * * *
* * * * *
0
8. Section 7.120 is amended by adding a new fifth sentence to paragraph 
(a) and adding paragraph (d)(1)(iv) to read as follows:

Sec.  7.120  Complaint investigations.

* * * * *
    (a) Who may file a complaint. * * * Complaints of employment 
discrimination based on age against an individual by recipients of 
Federal financial assistance are subject to the Age Discrimination in 
Employment Act of 1967 and should be filed administratively with the 
Equal Employment Opportunity Commission (see 29 CFR part 1626). * * *
* * * * *
    (d) * * *
    (1) * * *
    (iv) Complaints alleging age discrimination under the Age 
Discrimination Act of 1975 will be referred to a mediation agency in 
accordance with Sec.  7.180.
* * * * *

0
9. A new subpart F, consisting of Sec. Sec.  7.140 through 7.180, is 
added to read as follows:
Subpart F--Discrimination Prohibited on the Basis of Age
Sec.

[[Page 31708]]

7.140 General prohibition.
7.145 Specific prohibitions.
7.150 Exceptions to the rules against age discrimination--normal 
operation or statutory objective of any program or activity.
7.155 Exceptions to the rules against age discrimination--reasonable 
factors other than age.
7.160 Burden of proof.
7.165 Special benefits for children and the elderly.
7.170 Alternative funds disbursal procedures.
7.175 Exhaustion of administrative remedy.
7.180 Mediation of age discrimination complaints.

Subpart F--Discrimination Prohibited on the Basis of Age

Sec.  7.140  General prohibition.

    No person in the United States may, 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 EPA 
assistance.

Sec.  7.145  Specific prohibitions.

    (a) As to any program or activity receiving EPA assistance, a 
recipient shall not directly or through contractual, licensing, or 
other arrangements on the basis of age:
    (1) Exclude any individuals from, deny them the service, aid or 
benefits of, or subject them to discrimination under, a program or 
activity;
    (2) Provide a person any service, aid or other benefit that is 
different, or is provided differently from that provided to others 
under the program or activity;
    (3) Restrict a person in any way in the enjoyment of any advantage 
or privilege enjoyed by others receiving any service, aid, or benefit 
provided by the program or activity;
    (4) Subject a person to segregation in any manner or separate 
treatment in any way related to receiving services or benefits under 
the program or activity;
    (5) Deny a person or any group of persons the opportunity to 
participate as members of any planning or advisory body which is an 
integral part of the program or activity, such as a local sanitation 
board or sewer authority;
    (6) In administering a program or activity receiving Federal 
financial assistance in which the recipient has previously 
discriminated on the basis of age, the recipient shall take affirmative 
action to provide remedies to those who have been injured by the 
discrimination.
    (b) A recipient shall not use criteria or methods of administering 
its program or activity which have the effect of subjecting individuals 
to discrimination because of their age, or have the effect of defeating 
or substantially impairing accomplishment of the objectives of the 
program or activity with respect to individuals of a particular age.
    (c) A recipient shall not choose a site or location of a facility 
that has the purpose or effect of excluding individuals from, denying 
them the benefits of, or subjecting them to discrimination under any 
program or activity to which this part applies on the ground of age; or 
with the purpose or effect of defeating or substantially impairing the 
accomplishment of the objectives of this subpart.
    (d) The specific prohibitions of discrimination enumerated above do 
not limit the general prohibition of Sec.  7.140.

Sec.  7.150  Exceptions to the rules against age discrimination--normal 
operation or statutory objective of any program or activity.

    A recipient is permitted to take an action, otherwise prohibited by 
Sec. Sec.  7.140 and 7.145, if the action reasonably takes into account 
age as a factor necessary to the normal operation or achievement of any 
statutory objective of a program or activity. An action reasonably 
takes into account age as a factor necessary to the normal operation or 
the achievement of any statutory objective of a program or activity if:
    (a) Age is used as a measure or approximation of one or more other 
characteristics;
    (b) The other characteristic(s) must be measured or approximated in 
order for the normal operation of the program or activity to continue, 
or to achieve any statutory objective of the program or activity;
    (c) The other characteristic(s) can be reasonably measured or 
approximated by the use of age; and
    (d) The other characteristic(s) are impractical to measure directly 
on an individual basis.

Sec.  7.155  Exceptions to the rules against age discrimination--
reasonable factors other than age.

    A recipient is permitted to take an action otherwise prohibited by 
Sec. Sec.  7.140 and 7.145 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.

Sec.  7.160  Burden of proof.

    The burden of proving that an age distinction or other action falls 
within the exceptions outlined in Sec. Sec.  7.150 and 7.155 is on the 
recipient of EPA financial assistance.

Sec.  7.165  Special benefits for children and the elderly.

    If a recipient operating a program which serves the elderly or 
children in addition to persons of other ages, provides special 
benefits to the elderly or to children the provision of those benefits 
shall be presumed to be voluntary affirmative action provided that it 
does not have the effect of excluding otherwise eligible persons from 
participation in the program.

Sec.  7.170  Alternative funds disbursal procedures.

    (a) When EPA withholds funds from a recipient under Subpart F of 
these regulations, the Administrator may disburse the withheld funds 
directly to an alternate recipient: Any public or non-profit private 
organization or agency, or State or political subdivision of the State.
    (b) The Administrator will require any alternate recipient to 
demonstrate the ability to achieve the goals of the Federal statute 
authorizing the funds and these regulations (40 CFR Part 7).

Sec.  7.175  Exhaustion of administrative remedy.

    (a) A complainant may file a civil action following the exhaustion 
of administrative remedies under the Age Discrimination Act. 
Administrative remedies are exhausted if:
    (1) 180 days have elapsed since the complainant filed the complaint 
and EPA has made no finding with regard to the complaint; or
    (2) EPA issues any finding in favor of the recipient.
    (b) If EPA fails to make a finding within 180 days or issues a 
finding in favor of the recipient, EPA shall:
    (1) Promptly advise the complainant of this fact; and
    (2) Advise the complainant of his or her right to bring a civil 
action for injunctive relief; and
    (3) Inform the complainant that:
    (i) The complainant may bring a civil action only in a United 
States district court for the district in which the recipient is found 
or transacts business;
    (ii) A complainant prevailing in a civil action has the right to be 
awarded the costs of the action, including reasonable attorney's fees, 
but that the complainant must demand these costs in the complaint;
    (iii) Before commencing the action, the complainant shall give 30 
days notice by registered mail to the Secretary of the Department of 
Health and Human Services, the Administrator,

[[Page 31709]]

the Attorney General of the United States, and the recipient;
    (iv) The notice must state: The alleged violation of the Age 
Discrimination Act; the relief requested; the court in which the 
complainant is bringing the action; and, whether or not attorney's fees 
are demanded in the event the complainant prevails; and
    (v) The complainant may not bring an action if the same alleged 
violation of the Age Discrimination Act by the same recipient is the 
subject of a pending action in any court of the United States.

Sec.  7.180  Mediation of age discrimination complaints.

    (a) The OCR will refer all accepted complaints alleging age 
discrimination to the Mediation Agency designated by the Secretary of 
the Department of Health and Human Services.
    (b) Both the complainant and the recipient must participate in the 
mediation process to the extent necessary to reach an agreement or make 
an informed judgment that an agreement is not possible. The recipient 
and the complainant must meet with the mediator at least once before 
the OCR will accept a judgment that an agreement is not possible. The 
recipient and the complainant, however, need not meet with the mediator 
at the same time.
    (c) If the complainant and the recipient reach an agreement, the 
mediator must prepare a written statement of the agreement and have the 
complainant and recipient sign it. The mediator will send a copy of the 
agreement to the OCR, which will take no further action on the 
complaint unless the complainant or the recipient fails to comply with 
the agreement.
    (d) The mediator must protect the confidentiality of all 
information obtained in the course of the mediation process. No 
mediator may 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 
agency appointing the mediator.
    (e) Mediation ends after sixty (60) days from the time EPA received 
the complaint or if:
    (1) An agreement is reached; or
    (2) The Mediator determines that an agreement cannot be reached.
    (f) The mediator must return unresolved complaints to OCR to be 
processed in accordance with the procedure in Sec.  7.120.

[FR Doc. 2010-13470 Filed 6-3-10; 8:45 am]
BILLING CODE 6650-50-P
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