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[Federal Register Volume 79, Number 90 (Friday, May 9, 2014)]
[Rules and Regulations]
[Pages 26631-26637]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10644]

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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.

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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, government-wide age discrimination regulations promulgated 
by the United States Department of Health and Human Services (HHS).
    These regulations are designed to guide the actions of recipients 
of Federal financial assistance from NEH and incorporate the basic 
standards set forth in the general, government-wide regulations for 
determining what constitutes age discrimination. 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 Sec.  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

[[Page 26632]]

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 government-wide 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 self-evaluation of its compliance with the Act and 
these regulations. The self-evaluation must be kept on file for three 
years from its effective date and made available to the public upon 
request.

Subpart D--Investigation, Conciliation, and Enforcement Procedures

    Subpart D establishes the procedures for investigation, 
conciliation, and enforcement of the Act, and closely follows the 
procedural requirements included in the government-wide age 
discrimination regulations. Mediation is the first step in the 
complaint process. NEH will refer all complaints of discrimination 
under the Act to the Federal agency designated by HHS to manage the 
mediation process. Complainants and NEH recipients 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 non-profit enterprise that is independently 
owned and operated and is not dominant in its field. Some NEH grant 
programs support humanities projects developed by small, independently-
owned non-profits, such as museums, libraries, and other cultural 
organizations. NEH funds approximately 75-100 small non-profits each 
year, which accounts for less than ten percent of NEH's annual funding.
    However, the 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

[[Page 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, post-termination proceedings.
1172.38 Remedial action by recipients.
1172.39 Alternate funds disbursal procedure.
1172.40 Exhaustion of administrative remedies.

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

Subpart A--General

Sec.  1172.1  Purpose.

    The purpose of this part is to 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).

Sec.  1172.2  Application.

    (a) The Act and the regulations in this part apply to each 
recipient and to any

[[Page 26634]]

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.

Sec.  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

Sec.  1172.11  Rules against age discrimination.

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

Sec.  1172.12  Exceptions to the rules against age discrimination.

    (a) Normal operation or statutory objective of any program or 
activity. A recipient may take an action otherwise prohibited by Sec.  
1172.11 if the action reasonably takes into account age as a

[[Page 26635]]

factor necessary to the normal operation or the achievement of any 
statutory objective of a program or activity, if:
    (1) Age is used as a measure or approximation of one or more other 
characteristics;
    (2) The other characteristic(s) must be measured or approximated in 
order for the normal operation of the program or activity to continue, 
or to achieve any statutory objective of the program or activity;
    (3) The other characteristic(s) can be reasonably measured or 
approximated by the use of age; and
    (4) The other characteristic(s) are impractical to measure directly 
on an individual basis.
    (b) Reasonable factors other than age. A recipient may take an 
action otherwise prohibited by Sec.  1172.11 which is based on a 
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 Sec.  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 Sec.  1172.12(a).

Sec.  1172.13  Burden of proof.

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

Subpart C--Responsibilities of NEH Recipients

Sec.  1172.21  General responsibilities.

    A recipient has responsibility to ensure that its programs or 
activities are in compliance with the Act and 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.

Sec.  1172.22  Notice to subrecipients.

    Where a recipient passes on Federal financial assistance from NEH 
to subrecipients, the recipient must provide the subrecipients with 
written notice of their obligations under the Act and 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.

Sec.  1172.23  Self-evaluation.

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

Sec.  1172.24  Information requirements.

    Each recipient 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

Sec.  1172.31  Compliance reviews.

    (a) NEH may conduct compliance reviews, pre-award reviews, and 
other similar procedures in order to investigate and correct violations 
of the Act and 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 pre-award 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 Sec.  1172.36.

Sec.  1172.32  Complaints.

    (a) Any person, individually or as a member of a class or on behalf 
of others, may file a complaint with NEH, alleging discrimination 
prohibited by the Act and the regulations in this part based on an 
action occurring on or after July 1, 1979. A complainant must file a 
complaint in writing within 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.

[[Page 26636]]

Sec.  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.

Sec.  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 Sec.  1172.36.

Sec.  1172.35  Prohibition against intimidation or retaliation.

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

Sec.  1172.36  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 Sec.  1172.36(a)(1) to the 
particular recipient and particular program or activity, or portion 
thereof, that NEH finds in violation of the Act or 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 Sec.  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 Sec.  1172.36(a).
    (d) NEH also may defer granting new Federal financial assistance to 
a recipient when a hearing under Sec.  1172.36(a)(1) is initiated.
    (1) New Federal financial assistance includes all assistance for 
which NEH requires an application or approval, including renewal or 
continuation of existing activities, or authorization of new 
activities, during the deferral period. New Federal financial 
assistance does not include assistance approved prior to the beginning 
of a termination hearing under Sec.  1172.36(a)(1), or increases in 
funding as a result of changed computation of formula awards.
    (2) NEH will not begin a deferral until the recipient has received 
a notice of an opportunity for a hearing under Sec.  1172.36(a)(1). NEH 
will not continue a deferral for more than sixty (60) days unless a 
hearing has begun within that time, or the time for beginning the 
hearing has been extended by mutual written consent of the recipient 
and NEH. NEH will not continue a deferral for more than thirty (30) 
days after the close of the hearing, unless the hearing results in a 
finding against the recipient.
    (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.

[[Page 26637]]

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

    Certain NEH procedural provisions applicable to Title VI of the 
Civil Rights Act of 1964 apply to NEH enforcement of the regulations in 
this part. They are found at 45 CFR chapter XI, subchapter A, 1110.9 
through 1110.11.

Sec.  1172.38  Remedial action by recipients.

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

Sec.  1172.39  Alternate funds disbursal procedure.

    When NEH withholds funds from a recipient under 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.

Sec.  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 Sec.  1172.40(a) is 
satisfied, NEH will:
    (1) Promptly advise the complainant of this fact,
    (2) Advise the complainant of his or her right, 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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