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[Federal Register: June 4, 2010 (Volume 75, Number 107)]
[Proposed Rules]               
[Page 31738-31742]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04jn10-23]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 7

[EPA-HQ-OA-2004-0002; FRL-9159-1]
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: Proposed rule.

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SUMMARY: EPA is proposing to take 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: Comments must be received on or before August 3, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OA-
2004-0002, by mail to OEI Docket, U.S. EPA, Mail Code: 28221T, 1200 
Pennsylvania Ave., NW, Washington, DC 20460. Comments can also be 
submitted electronically or through hand delivery/courier by following 
the detailed instructions in the ADDRESSES section of the direct final 
rule located in the ``Rules and Regulations'' section of this Federal 
Register.

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 Issuing This Proposed Rule?

    This document proposes to take action on Nondiscrimination on the 
Basis of Age in Programs or Activities Receiving Federal Assistance 
from the Environmental Protection Agency. We have published a direct 
final rule approving regulations for implementing the Age 
Discrimination Act of 1975, as amended, which prohibits discrimination 
on the basis of age in programs or activities receiving Federal 
assistance in the ``Rules and Regulations'' section of this Federal 
Register because we view this as a noncontroversial action and 
anticipate no adverse comment. We have explained our reasons for this 
action in the preamble to the direct final rule.
    If we receive no adverse comment, we will not take further action 
on this proposed rule. If we receive adverse comment, we will withdraw 
the direct final rule and it will not take effect. We would address all 
public comments in any subsequent final rule based on this proposed 
rule.
    We do not intend to institute a second comment period on this 
action. Any parties interested in commenting must do so at this time. 
For further information, please see the information provided in the 
ADDRESSES section of this document.

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

[[Page 31739]]

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 (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

[[Page 31740]]

nondiscrimination regulations are no longer available for viewing. 
Comments on the current rule are welcome. If we receive comment on the 
current rule, we will withdraw the direct final rule and it will not 
take effect. We would address all public comments in any subsequent 
final rule based on this proposed rule as mentioned above.

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 Financial 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 proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.
    This proposed 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. We continue to be interested in the potential 
impacts of the proposed rule on small entities and welcome comments on 
issues related to such impacts.

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

[[Page 31741]]

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 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 proposed 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 proposed 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 proposed 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 proposed 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 proposed 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 proposing 
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. 272 n) 
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 proposed 
rulemaking does not involve technical standards. Therefore, EPA is not 
considering the use of any voluntary consensus standards.

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 proposed 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 proposing 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.

List of Subjects in 40 CFR Part 7

    Environmental protection, Administrative practice and procedure,

[[Page 31742]]

Age discrimination, Civil rights, Equal employment opportunity, 
Individuals with disabilities, Reporting and recordkeeping 
requirements, Sex discrimination.

    Dated: May 27, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010-13469 Filed 6-3-10; 8:45 am]
BILLING CODE 6560-50-P
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