Federal Register / Vol. 79, No. 90 / Friday, May 9, 2014 / Rules and Regulations 26631 

* * * * * 

[FR Doc. 2014–10581 Filed 5–8–14; 8:45 am] 

BILLING CODE 6560–50–P 

NATIONAL FOUNDATION ON THE 

ARTS AND THE 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. 

ACTION: Final rule. 

SUMMARY: In this final rule, the National 

Endowment for the Humanities (NEH) is 

issuing Age Discrimination Act of 1975 

(the Act or the Age Act) regulations. 

These regulations implement provisions 

of the Act and the general, governmentwide 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. These 

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: The final rule will be effective 

June 9, 2014. 

FOR FURTHER INFORMATION CONTACT: 

Mara Campbell, Office of the General 

Counsel, NEH, at 202–606–8322, 202– 

606–8282 (TDD), or mcampbell@

neh.gov. 

SUPPLEMENTARY INFORMATION: 

General Information 

The Age Discrimination Act of 1975, 

as amended, 42 U.S.C. 6101 et seq., (the 

Act or the Age 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 however, does not cover 

employment discrimination on the basis 

of age, which is addressed by a different 

statute, the Age Discrimination in 

Employment Act of 1967, as amended, 

29 U.S.C. 621 et seq., (ADEA). The 

ADEA applies specifically to 

employment practices and programs, 

both in the public and private sectors, 

and only applies to persons who are age 

forty and over. Complaints of 

employment discrimination based on 

age by recipients of Federal financial 

assistance are subject to the ADEA—and 

not the Act or these regulations—and 

should instead be filed with the Equal 

Employment Opportunity Commission 

(EEOC) (29 CFR part 1626). 

Rulemaking History 

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 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), but did 

not publish the final regulations. As a 

practical matter, however, the absence 

of such 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. 

Since a significant amount of time 

had passed, and because regulatory 

development guidelines had changed, 

NEH began the regulatory process anew 

and published a proposed rule, 

including a full regulatory analysis 

under the Administrative Procedure 

Act, in the Federal Register on May 15, 

2013 (78 FR 28569). The public 

comment period ended on July 15, 2013, 

and the only comments NEH received 

were from the EEOC. 

Comments From EEOC 

The majority of the EEOC’s comments 

were intended to address potential 

confusion among the employment 

community and employees who may be 

unaware that the Age Act and the ADEA 

are separate statutes with different 

purposes, procedures, and remedies. In 

order to address this concern, NEH 

created a new ‘‘General Information’’ 

section under the SUPPLEMENTARY

INFORMATION heading. This new section 

provides information on the ADEA and 

how it differs from the Age Act. 

In addition to inserting this general 

overview, NEH amended specific 

sections of the rule to more clearly 

distinguish the two Acts: 

Section 1172.1 has been amended to 

state that complaints of employment 

discrimination based on age by 

recipients of Federal financial assistance 

are subject to the ADEA and should be 

filed administratively with the EEOC. 

Section 1172.2(b) has been amended 

to include subsection (3) which states 

that these regulations do not in any way 

affect any rights or responsibilities 

under the ADEA, the EEOC’s regulations 

under the ADEA, or any statements of 

policy promulgated by EEOC under the 

ADEA. 

Section 1172.3 has been amended to 

include a definition of the ADEA. 

HHS Review 

As part of the clearance process 

required by the government-wide Age 

Act regulations, NEH submitted its draft 

final rule to HHS for review prior to 

publication. In response to this review, 

NEH updated the following sections: 

Section 1172.12 has been amended to 

include subsection (e) which states that 

any age distinction issued by NEH in a 

regulation is presumed to be necessary 

to achieve a statutory objective, 

notwithstanding the provisions of 

§ 1172.12(a). 

Sections 1172.24 and 1172.33 have 

been amended to replace the word 

‘‘must’’ with ‘‘shall.’’ 

Section 1172.33(a) has been amended 

to include the words, ‘‘Unless the age 

distinction complained of is clearly 

within an exception,’’ at the beginning 

of the sentence. Additionally, the 

second sentence of subpart (b) has been 

deleted. 

Sections 1172.33(c) and 1124.34(a)(1) 

have been amended to replace the word 

‘‘settlement’’ with ‘‘mediation.’’ 

Section 1172.36(d) has been amended 

to include subsection (3) which states 

that deferrals will be limited to the 

particular recipient and particular 

program or activity. 

Additional Changes 

In addition to the changes noted 

above, NEH updated the following 

section of the final rule: 

Section 1172.2(b) has been amended 

to delete the words ‘‘any program or 

activity receiving Federal financial 

assistance under the Workforce 

Investment Act of 1998 (29 U.S.C. 9201 

et seq.)’’ as Congress eliminated this 


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26632 Federal Register / Vol. 79, No. 90 / Friday, May 9, 2014 / Rules and Regulations 

exception in the Omnibus Consolidated 

and Emergency Supplemental 

Appropriations Act of 1999, Public Law 

105–277. 

Finally, HHS’s government-wide 

regulations require that each agency 

publish an appendix to its Age Act 

regulations listing all age distinctions 

which appear in federal statutes and 

regulations and affect the agency’s 

program of financial assistance. A 

review of National Foundation on the 

Arts and Humanities Act of 1965, 20 

U.S.C. 951 et seq., and NEH’s 

regulations reveals no statutory age 

distinctions used by NEH in the 

administration of agency programs. 

Overview of the Final Rule 

NEH has designed this rule to fulfill 

its statutory and regulatory obligations 

to issue a regulation implementing the 

Act that conforms to the governmentwide regulations at 45 CFR part 90. 

NEH’s rule is 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 

these regulations, which is to set out 

NEH’s policies and procedures in 

accordance with the Act and the 

government-wide regulations. These 

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 selfevaluation of its compliance with the 

Act and these regulations. The selfevaluation 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 shall 

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 mediation 

agreement is violated. Finally, these 

regulations permit NEH to withhold 

funds and disburse them to an 

appropriate alternate recipient, if the 

alternate has demonstrated 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. 

Regulatory Procedures 

Executive Order 12866, Regulatory 

Review 

NEH has determined that the 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 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 has certified that this 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 nonprofit enterprise that is independently 

owned and operated and is not 

dominant in its field. Some NEH grant 

programs support humanities projects 

developed by small, independentlyowned 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 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 


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Federal Register / Vol. 79, No. 90 / Friday, May 9, 2014 / Rules and Regulations 26633 

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 1975. The rule 

only formalizes those existing 

requirements for NEH recipients. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

NEH has determined that the rule is 

not a ‘‘major rule’’ as defined by section 

251 of the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA), as amended, Pub. L. 104–121 

(5 U.S.C. 804). This rule will not result 

in: (1) an 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 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 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 

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 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 

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. 

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 

Congress and to the Comptroller General 

of the United States. NEH 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 June 9, 2014. 

List of Subjects in 45 CFR Part 1172 

Administrative practice and 

procedure, Age discrimination, Civil 

rights, Grant programs, Reporting and 

recordkeeping requirements. 

For the reasons stated in the 

preamble, NEH is amending 45 CFR 

chapter XI, 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 Enforcement procedure. 

1172.37 Hearings, decisions, posttermination 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 

§ 1172.1 Purpose. 

The purpose of this part is to set out 

the National Endowment for the 

Humanities’ (NEH) policies and 

procedures for implementing the Age 

Discrimination Act of 1975, as 

amended, 42 U.S.C. 6101 et seq., (the 

Act or the Age Act). 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 the regulations in this part. The 

regulations in this part are based upon 

the general, government-wide age 

discrimination regulations issued by the 

United States Department of Health and 

Human Services (HHS) at 45 CFR part 

90. 

Complaints of employment 

discrimination based on age may be 

subject to the Age Discrimination in 

Employment Act of 1967, as amended, 

29 U.S.C. 621 et seq., (ADEA) and 

should be filed administratively with 

the Equal Employment Opportunity 

Commission (EEOC) (29 CFR part 1626). 

§ 1172.2 Application. 

(a) The Act and the regulations in this 

part apply to each recipient and to any 


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26634 Federal Register / Vol. 79, No. 90 / Friday, May 9, 2014 / Rules and Regulations 

program or activity receiving financial 

assistance from the 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) Establishes criteria for 

participation in age-related terms; or 

(iii) Describes intended beneficiaries 

or target groups in age-related terms. 

(2) Any employment practice of any 

employer, employment agency, labor 

organization, or with respect to any 

labor-management joint apprenticeship 

training program. 

(3) The rights or responsibilities of 

any person or party pursuant to the 

ADEA, the EEOC regulations under the 

ADEA, or any statements of policy 

promulgated by the EEOC under the 

ADEA. 

§ 1172.3 Definitions. 

As used in this part, the term: 

Act means the Age Discrimination Act 

of 1975, as amended, 42 U.S.C. 6101 et 

seq. (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. 

ADEA means the Age Discrimination 

in Employment Act of 1967, as 

amended, 29 U.S.C. 621 et seq. (Pub. L. 

90–202). 

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 

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 (1), (2), 

or (3) 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 passes on Federal 

financial assistance. A subrecipient is 

generally regarded as a recipient of 

Federal financial assistance and has all 

the duties of a recipient in the 

regulations in this part. 

United States means the fifty states, 

the District of Columbia, Puerto Rico, 

the Virgin Islands, American Samoa, 

Guam, Wake Island, 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 

§ 1172.11 Rules against age 

discrimination. 

The rules stated in this section are 

limited by the exceptions contained in 

§ 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. 

§ 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 § 1172.11 if the action 

reasonably takes into account age as a 


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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 § 1172.11 

which is based on a reasonable 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 reasonable 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 

§ 1172.12(a). 

(e) Age distinctions in NEH 

regulations. Any age distinction in a 

regulation issued by NEH is presumed 

to be necessary to the achievement of a 

statutory objective of the program or 

activity to which the regulation applies, 

notwithstanding the provisions of 

§ 1172.12(a). 

§ 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 

§ 1172.12. 

Subpart C—Responsibilities of NEH 

Recipients 

§ 1172.21 General responsibilities. 

A recipient has responsibility to 

ensure that its programs or activities are 

in compliance with the Act and the 

regulations in this part and to take steps 

to eliminate violations of the Act and 

the regulations in this part. A recipient 

also has responsibility to maintain 

records, provide information, and afford 

NEH access to its records to the extent 

NEH finds necessary to determine 

whether the recipient is in compliance 

with the Act and the regulations in this 

part. 

§ 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 the regulations in this part. 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 the regulations 

in this part. 

§ 1172.23 Self-evaluation. 

As part of a compliance review under 

§ 1172.31 or a complaint investigation 

under § 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. 

§ 1172.24 Information requirements. 

Each recipient shall keep records 

containing information necessary for 

NEH to determine whether the recipient 

is in compliance with the Act and the 

regulations in this part, and shall 

provide any such records to NEH upon 

request and in the preferred format 

specified by NEH. Each recipient shall 

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 

§ 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 the regulations in this part. 

NEH may conduct these reviews even in 

the 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 preaward review indicates a violation of 

the Act and the regulations in this part, 

NEH will attempt to contact the 

recipient and achieve the recipient’s 

voluntary compliance. If the recipient 

does not comply voluntarily, NEH may 

pursue enforcement efforts as described 

in § 1172.36. 

§ 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 one 

hundred eighty (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. 


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26636 Federal Register / Vol. 79, No. 90 / Friday, May 9, 2014 / Rules and Regulations 

§ 1172.33 Mediation. 

(a) Referral of complaints for 

mediation. Unless the age distinction 

complained of is clearly within an 

exception, NEH will promptly refer all 

complaints that fall within the 

jurisdiction of the regulations in this 

part, and that contain all information 

necessary for further processing, to the 

Mediation Agency designated by the 

Secretary of the Department of Health 

and Human Services. 

(b) Both the complainant and the 

recipient shall participate in the 

mediation process to the extent 

necessary to reach an agreement, or for 

the mediator to make an informed 

judgment that an agreement is 

impossible. 

(c) If the complainant and recipient 

reach a mutually satisfactory resolution 

of the complaint during the mediation 

period, the mediator shall prepare a 

mediation agreement in writing, to be 

signed by the complainant and 

recipient, and send a copy of the signed 

agreement to NEH. NEH will take no 

further action based on that complaint 

unless the complainant or the recipient 

has failed to comply with the 

agreement. 

(d) The mediator shall 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 shall 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 or 

if an agreement is reached. 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. 

§ 1172.34 Investigation. 

(a) Initial investigation. (1) NEH will 

investigate complaints that are 

unresolved after mediation or are 

reopened because of a violation of a 

mediation 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 

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 and finding. 

If NEH cannot resolve the complaint 

during the initial investigation, it will 

complete the investigation of the 

complaint and make a formal finding. If 

the formal investigation indicates a 

violation of the Act or the regulations in 

this part, NEH will attempt to achieve 

voluntary compliance. If NEH cannot 

obtain voluntary compliance, it will 

begin appropriate enforcement action as 

provided in § 1172.36. 

§ 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. 

§ 1172.36 Enforcement 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 Act or the 

regulations in this part. Prior to such 

termination, a recipient must have the 

opportunity for a hearing on record 

before an administrative law judge who 

must determine that a violation has 

occurred. 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 the 

regulations in this part. 

(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 § 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 the 

regulations in this part. NEH will not 

base its decision to terminate on any 

findings with respect to any other 

program or activity of the recipient that 

does not receive Federal financial 

assistance from NEH. 

(c) NEH will not take action under 

§ 1172.36(a) until: 

(1) The Chairman has advised the 

recipient of its failure to comply with 

the Act or the regulations in this part, 

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 

§ 1172.36(a). 

(d) NEH also may defer granting new 

Federal financial assistance to a 

recipient when a hearing under 

§ 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 § 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 

§ 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. 

(3) NEH will limit any deferral to the 

particular recipient and particular 

program or activity, or portion thereof, 

that NEH finds in violation of the Act 

or the regulations in this part. NEH will 

not base the deferral decision any 

finding with respect to any other 

program or activity of the recipient that 

does not receive Federal financial 

assistance from NEH. 


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Federal Register / Vol. 79, No. 90 / Friday, May 9, 2014 / Rules and Regulations 26637 

§ 1172.37 Hearings, decisions, posttermination proceedings. 

Certain NEH procedural provisions 

applicable to Title VI of the Civil Rights 

Act of 1964 apply to NEH enforcement 

of the regulations in this part. They are 

found at 45 CFR chapter XI, subchapter 

A, 1110.9 through 1110.11. 

§ 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. 

§ 1172.39 Alternate funds disbursal 

procedure. 

When NEH withholds funds from a 

recipient under the regulations in this 

part, 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 the regulations in this part 

and to achieve the goals of the National 

Foundation on the Arts and the 

Humanities Act of 1965, Pub. L. 89–209 

(20 U.S.C. 951)—the Federal statute 

authorizing the Federal financial 

assistance. 

§ 1172.40 Exhaustion of administrative 

remedies. 

(a) A complainant may file a civil 

action under the Act and the regulations 

in this part following the exhaustion of 

administrative remedies. Administrative 

remedies are exhausted if one hundred 

eighty (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 § 1172.40(a) is satisfied, NEH will: 

(1) Promptly advise the complainant 

of this fact, 

(2) Advise the complainant of his or 

her right, to bring a civil action for 

injunctive relief, 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 

complainant is bringing the action, and, 

whether or not attorney’s fees are 

demanded in the event the complainant 

prevails, and 

(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. 

Michael McDonald, 

General Counsel. 

[FR Doc. 2014–10644 Filed 5–8–14; 8:45 am] 

BILLING CODE 7536–01–P 


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