64194 Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Proposed Rules

the ‘‘Rules and Regulations’’ section of

this Federal Register.

Dated: October 18, 2000.

Mindy S. Lubber,

Regional Administrator, EPA New England.

[FR Doc. 00–27577 Filed 10–25–00; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

45 CFR Parts 80, 84, 86, 90, and 91

RIN 0991–AB10

Office for Civil Rights; Amending the

Regulations Governing

Nondiscrimination on the Basis of

Race, Color, National Origin, Handicap,

Sex, and Age to Conform to the Civil

Rights Restoration Act of 1987

ACTION: Proposed rule.

SUMMARY: The Secretary proposes to

amend the Department of Health and

Human Services regulations

implementing Title VI of the Civil

Rights Act of 1964, section 504 of the

Rehabilitation Act of 1973, Title IX of

the Education Amendments of 1972,

and the Age Discrimination Act of 1975

to conform with certain statutory

amendments made by the Civil Rights

Restoration Act of 1987 (CRRA). The

principal proposed conforming change

is to amend the regulations to add

definitions of ‘‘program or activity’’ or

‘‘program’’ that correspond to the

statutory definitions enacted under the

CRRA.

DATES: Comments will be considered if

we receive them at the appropriate

address, as provided below, no later

than 5 p.m. on November 27, 2000.

ADDRESSES: Mail written comments or

deliver them to the following address:

Office for Civil Rights, Department of

Health and Human Services, 200

Independence Avenue, SW., Room 509–

F, Washington, DC 20201.

FOR FURTHER INFORMATION CONTACT:

Kathryn A. Ellis, (202) 619–0403;

Kathleen O’Brien, (202) 619–2829; TDD

1–800–537–7697.

SUPPLEMENTARY INFORMATION: The

Department of Health and Human

Services (Department or HHS) proposes

to amend its civil rights regulations to

conform to certain provisions of the

Civil Rights Restoration Act of 1987

(Pub. L. 100–259) (CRRA), regarding the

scope of coverage under civil rights

statutes administered by the

Department. These statutes include Title

VI of the Civil Rights Act of 1964, as

amended, 42 U.S.C. 2000d, et seq. (Title

VI), Title IX of the Education

Amendments of 1972, as amended, 20

U.S.C. 1681, et seq. (Title IX), Section

504 of the Rehabilitation Act of 1973, as

amended, 29 U.S.C. 794 (Section 504),

and the Age Discrimination Act of 1975,

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

Discrimination Act). Title VI prohibits

discrimination on the basis of race,

color, and national origin in all

programs or activities that receive

Federal financial assistance; Title IX

prohibits discrimination on the basis of

sex in education programs or activities

that receive Federal financial assistance;

section 504 prohibits discrimination on

the basis of disability in all programs or

activities that receive Federal financial

assistance; and the Age Discrimination

Act prohibits discrimination on the

basis of age in all programs or activities

that receive Federal financial assistance.

The principal proposed conforming

change is to amend each of these

regulations to add a definition of

‘‘program or activity’’ or ‘‘program’’ that

adopts the statutory definition of

‘‘program or activity’’ or ‘‘program’’

enacted as part of the CRRA. We believe

that adding this statutory definition to

the regulatory language is the best way

to avoid confusion on the part of

recipients, beneficiaries, and other

interested parties about the scope of

civil rights coverage.

The Department’s civil rights

regulations, when originally issued and

implemented, were interpreted by the

Department to mean that acceptance of

Federal assistance by an entity resulted

in broad institutional coverage. In Grove

City College v. Bell, 465 U.S. 555, 571–

72 (1984) (Grove City College), the

Supreme Court held, in a Title IX case,

that the provision of Federal student

financial assistance to a college resulted

in Federal jurisdiction to ensure Title IX

compliance in the specific program

receiving the assistance, i.e., the student

financial aid office, but that the Federal

student financial assistance would not

provide jurisdiction over the entire

institution. Following the Supreme

Court’s decision in Grove City College,

the Department changed its

interpretation, but not the language, of

the governing regulations to be

consistent with the Court’s restrictive,

‘‘program specific’’ definition of

‘‘program or activity’’ or ‘‘program’’.

Since Title IX was patterned after Title

VI, Grove City College significantly

narrowed the coverage of Title VI and

two other statutes based on it: The Age

Discrimination Act and Section 504. See

S. Rep. No. 100–64, at 2–3, 11–16

(1987).

Then, in 1988, the CRRA was enacted

to ‘‘restore the prior consistent and longstanding executive branch interpretation

and broad, institution-wide application

of those laws as previously

administered.’’ 20 U.S.C. 1687 note 1.

Congress enacted the CRRA in order to

remedy what it perceived to be a serious

narrowing by the Supreme Court of a

longstanding administrative

interpretation of the coverage of the

regulations. At that time, the

Department reinstated its broad

interpretation to be consistent with the

CRRA, again without changing the

language of the regulations. It was and

remains the Department’s consistent

interpretation that—with regard to the

differences between the interpretation of

the regulations given by the Supreme

Court in Grove City College and the

language of the CRRA—the CRRA,

which took effect upon enactment,

superseded the Grove City College

decision and, therefore, the regulations

must be read in conformity with the

CRRA in all their applications.

This interpretation reflects the

understanding of Congress, as expressed

in the legislative history of the CRRA,

that the statutory definition of ‘‘program

or activity’’ or ‘‘program’’ would take

effect immediately, by its own force,

without the need for Federal agencies to

amend their existing regulations. S. Rep.

No. 100–64, at 32. The legislative

history also evidences congressional

concern about the Department’s

immediate need to address complaints

and findings of discrimination in

federally assisted schools under the

CRRA definition of ‘‘program or

activity’’, and includes examples

demonstrating why the CRRA was

‘‘urgently’’ needed. See S. Rep. No. 100–

64, at 11–16.

The proposed regulatory change

described in the previous paragraph

would address an issue recently raised

by the Third Circuit Court of Appeals in

Cureton v. NCAA, 198 F.3d 107, 115–16

(1999) (Cureton). That court determined

that, because the Department did not

amend its Title VI regulation after the

enactment of the CRRA, application of

the Department’s Title VI regulation to

disparate impact discrimination claims

is ‘‘program specific’’ (i.e., limited to

specific programs in an institution

affected by the Federal funds), rather

than institution-wide (i.e., applicable to

all of the operations of the institution

regardless of the use of the Federal

funds). In the court’s view, the

regulations should clarify the

application of the broad institutional

coverage to disparate impact claims,

because the disparate impact analysis

appears in regulation, and not in a

statute. We disagree with the Cureton

decision for the reasons described in

Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Proposed Rules 64195

this preamble. Nevertheless, the

proposed regulatory changes would

explicitly incorporate definitions of

‘‘program or activity’’ or ‘‘program’’ that

correspond to those enacted under the

CRRA and thereby remove any doubt

that the regulations apply institutionwide to both disparate impact

discrimination and disparate treatment

discrimination. (‘‘Disparate treatment’’

refers to policies or practices that treat

individuals differently based on their

race, color, national origin, sex,

disability, or age, as applicable.

Disparate treatment is generally barred

by the civil rights statutes and

regulations. ‘‘Disparate impact’’ refers to

criteria or methods of administration

that have a significant disparate effect

on individuals based on race, color,

national origin, sex, disability, or age, as

applicable. Those criteria or practices

may constitute impermissible

discrimination based on legal standards

that include consideration of their

necessity.)

The statutory definition, which is

being incorporated into the regulations,

addresses four broad categories of

recipients: (1) State or local

governmental entities; (2) Colleges,

universities, other postsecondary

educational institutions, public systems

of higher education, local educational

agencies, systems of vocational

education, and other school systems; (3)

Private entities, such as corporations,

partnerships, and sole proprietorships,

including those whose principal

business is providing education, health

care, housing, social services, or parks

and recreation; and (4) Entities that are

established by a combination of two or

more of the first three types of entities.

Under the first part of the definition,

if State and local governmental entities

receive financial assistance from the

Department, the ‘‘program or activity’’

or ‘‘program’’ in which discrimination is

prohibited includes all of the operations

of any State or local department or

agency to which the Federal assistance

is extended. For example, if the

Department provides financial

assistance to a State health agency, all

of the agency’s operations are subject to

the nondiscrimination requirements of

the regulations. In addition, ‘‘program or

activity’’ or ‘‘program’’ includes all of

the operations of the entity of a State or

local government that distributes the

Federal assistance to another State or

local governmental agency or

department and all of the operations of

the State or local governmental entity to

which the financial assistance is

extended.

Under the second part of the

definition of ‘‘program or activity’’ or

‘‘program’’, if colleges, universities,

other postsecondary institutions, public

systems of higher education, local

educational agencies, systems of

vocational education, or other school

systems receive financial assistance

from the Department, all of their

operations are subject to the

nondiscrimination requirements of the

regulations. For example, if a college or

university receives Federal financial

assistance from the Department to

support medical research, all of the

operations of the college or university

are covered, not solely the operations of

the component performing the medical

research.

Under the third part of the definition,

in the case of private entities not already

listed under the second part of the

definition, if the Federally assisted

entity or organization is principally

engaged in the business of education,

health care, housing, social services, or

parks and recreation, then the entire

corporation, partnership, or other

private organization or sole

proprietorship is the covered ‘‘program

or activity’’ or ‘‘program’’. For example,

if a private hospital receives financial

assistance from the Department, it will

be covered on an institution-wide basis

under this portion of the definition of

‘‘program or activity’’ or ‘‘program’’

because it is an entity principally

engaged in the business of providing

health care. All of its operations are

covered by the nondiscrimination

requirements of the regulations.

Also under the third part of the

definition, if a private entity is not

principally engaged in the business of

education, health care, housing, social

services, or parks and recreation, and

the Department extends financial

assistance to the private entity ‘‘as a

whole’’, all of the private entity’s

operations at all of its locations would

be covered. If the Department were to

extend general assistance, that is,

assistance that is not designated for a

particular purpose, to this type of

corporation or other private entity, that

would be considered financial

assistance to the private entity ‘‘as a

whole’’. In other instances in which the

Department extends financial assistance

to this type of entity, the coverage

would be limited to the entire plant or

other comparable geographically

separate facility to which assistance is

extended.

Under the fourth part of the

definition, if an entity of a type not

already covered by one of the first three

parts of the definition is established by

two or more of the entities listed under

the first three parts of the definition,

then all of the operations of that new

entity are covered.

The proposed regulations also would

modify or delete some existing sections

of the Department regulations that have

become superfluous following the CRRA

enactment, to conform with the CRRA

definitions of ‘‘program or activity’’ or

‘‘program.’’ This is consistent with the

approach taken by other Federal

agencies in the Title IX common rule

NPRM, for example, in which it was

noted that regulatory language in the

Department of Education’s Title IX

regulations made superfluous by the

enactment of the CRRA was omitted in

that proposed rule (64 FR 58568,

58571). The Title IX, Title VI, and

section 504 regulations of the

Department of Education and HHS are

substantially similar because both were

derived from the original Department of

Health, Education and Welfare

regulation.

The Department’s Title IX regulations,

promulgated in 1975, defined

‘‘recipient’’ as an entity ‘‘to whom

Federal financial assistance is extended

directly or through another recipient

and which operates an education

program or activity which receives or

benefits from such assistance.’’ 45 CFR

86.2(h). At that time, the words ‘‘or

benefits from’’ were necessary to clarify

that all of the operations of a university

or other educational institution that

receives Federal financial assistance—

not just the particular programs

receiving financial assistance—are

covered by Title IX’s nondiscrimination

requirements. As previously discussed,

this interpretation was rejected by the

Supreme Court in 1984 in Grove City

College, which held that Federal student

financial aid established Title IX

jurisdiction only over the financial aid

program, not the entire institution.

However, Congress’ 1988 enactment of

the CRRA counteracted this decision by

defining ‘‘program or activity’’ and

‘‘program’’ to provide expressly that

Title IX covers all educational programs

of a recipient institution. Because of this

statutory change, the words ‘‘or benefits

from’’ are no longer necessary as a

regulatory matter. For that reason, we

propose to delete the words ‘‘or benefits

from’’ and similar phrases from the Title

IX regulation. We also propose to delete

similar language from the Department’s

Section 504 and Age Discrimination Act

regulations. These deletions do not

affect the reach of Title IX, Section 504,

or the Age Discrimination Act.

The existing Title VI regulation of the

Department of Health and Human

Services, promulgated in 1964 by the

Department of Health, Education, and

Welfare in 29 FR 16298 and 29 FR

64196 Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Proposed Rules

16988 and in 1965 in 30 FR 16988,

include an assurance requirement for

institutions in § 80.4(d)(2) that has

created confusion with regard to the

scope of ‘‘program or activity’’ and

‘‘program’’ under Title VI. One example

is the previously referenced decision in

Cureton. The current provision states, in

part: The assurance ‘‘* * * shall be

applicable to the entire institution

unless the applicant establishes, to the

satisfaction of the responsible

Department official, that the

institution’s practices in designated

parts or programs of the institution will

in no way affect its practices in the

program of the institution for which

Federal financial assistance is sought

* * *’’. 45 CFR 80.4(d)(2). This NPRM

proposes to delete that portion of the

assurance to avoid any further

confusion. As previously stated, it was

appropriate to apply the CRRA statutory

definition of ‘‘program or activity’’ to

the regulations. For the same reasons,

portions of the illustrations in § 80.5(c)

and (e) would be deleted, since they

could create similar confusion.

Specifically, current § 80.5(c) states that,

with regard to prohibited discrimination

in university graduate research, training,

demonstration, or other grants, ‘‘the

prohibition extends to the entire

university unless it satisfies the

responsible Department official that

practices with respect to other parts or

programs of the university will not

interfere, directly or indirectly, with

fulfillment of the assurance required

with respect to the graduate school.’’

Similarly, current § 80.5(e) states: ‘‘In

other construction grants the assurances

required will be adapted to the nature

of the activities to be conducted in the

facilities for construction of which the

grants have been authorized by

Congress.’’ These proposed deletions

would not affect the reach of Title VI.

In addition, we are proposing

conforming changes that delete

references to ‘‘program’’ or ‘‘program or

activity’’ in the existing regulations that

refer to Federal Financial assistance or

to specific activities of the recipient, or

that conform the meaning to the broad

definition in the CRRA and eliminate

potential confusion in the use of these

terms, and continue the longstanding

Department interpretation of the statutes

and regulations. These changes will

ensure that there is no confusion as to

the use of these terms in the regulations.

For example, in the Title VI regulation

§ 80.2 refers to ‘‘Federal assisted

programs and activities listed in

Appendix A to this part.’’ Appendix A

is a list of Federal financial assistance

triggering coverage under the civil rights

laws. ‘‘Federal assisted programs and

activities’’ as used in § 80.2 clearly

refers to Federal programs of assistance.

We propose to delete ‘‘assisted programs

and activities’’ in this subsection and

substitute ‘‘financial assistance.’’ We are

proposing comparable conforming

changes in our Title VI, Section 504,

Title IX and Age Discrimination Act

regulations, including both the

government-wide coordinating Age

Discrimination Act regulation and the

HHS-specific Age Discrimination Act

regulation. For example, in some

instances, we have proposed to delete

‘‘program’’ or ‘‘program or activity’’ and

substitute ‘‘Federal financial

assistance,’’ or ‘‘aids, benefits or

services.’’ These substitutions are not

intended to change the scope or

substance of the regulations. They are

intended only to remove any confusion

that might result from the adoption of

the proposed definitions of ‘‘program or

activity’’ or ‘‘program’’. In other

instances, we have proposed to change

‘‘programs and activities’’ to ‘‘programs

or activities’’ to conform the regulation

to the phrase used in the CRRA—when

it is used in the broad manner defined

in the CRRA. We have not proposed to

modify the term ‘‘activity’’ when it

appears separately from the phrase

‘‘program or activity’’ and is used in a

manner unrelated to the CRRA phrase

‘‘program or activity.’’ These proposed

changes are not intended to change the

scope or substance of the regulations,

but to remove any confusion that might

result from the proposed definitions.

It is important to note that the

proposed changes would not in any way

alter the requirement of the CRRA that

a proposed or effectuated fund

termination be limited to the particular

program or programs ‘‘or part thereof’’

that discriminates or, as appropriate, to

all of the programs that are infected by

the discriminatory practices. See S. Rep.

No. 100–64, at 20 (‘‘The [CRRA] defines

‘program’ in the same manner as

‘program or activity,’ and leaves intact

the ‘or part thereof’ pinpointing

language.’’).

We propose to replace the current

definition of ‘‘program’’ in the Title VI

regulation in 45 CFR 80.13 with the

proposed definition of ‘‘program or

activity’’ and ‘‘program’’. We propose to

add the definition of ‘‘program or

activity’’ and ‘‘program’’ to the Title IX

regulation in 45 CFR 86.2. We propose

to add the definition of ‘‘program or

activity’’ to the Section 504 regulation

in 45 CFR 84.3, the government-wide

Age Discrimination Act regulation in 45

CFR 90.4, and the HHS-specific Age

Discrimination Act regulation in 45 CFR

91.4. Because, as previously explained,

the proposed changes merely

incorporate statutory language and do

not alter the Department’s consistent

position that the regulations must be

read in conformity with the CRRA, the

Department views these changes as

technical in nature. However, the

Department is inviting public comment

on the proposed changes, consistent

with its policy of involving interested

members of the public in its rulemaking

process. Conforming changes to the

nonregulatory guidance in Appendix B

of part 80 and Appendix A of part 84

will be published in the Federal

Register in a separate notice. Nothing in

these proposed changes affects coverage

under the Federal employment

nondiscrimination statutes, including

Title VII of the Civil Rights Act of 1964,

Title I of the Americans with

Disabilities Act, and the Age

Discrimination in Employment Act.

Collection of Information Requirements

This proposed rule does not contain

any information collection requirements

subject to the Paperwork Reduction Act

of 1995.

Regulatory Impact Analysis

We have examined the impacts of this

proposed rule as required by Executive

Order 12866, the Unfunded Mandates

Reform Act of 1995, and the Regulatory

Flexibility Act. Executive Order 12866

directs agencies to assess all costs and

benefits of available regulatory

alternatives and, when regulation is

necessary, to select regulatory

approaches that maximize net benefits,

including potential economic,

environmental, public health and safety

effects, distributive impacts, and equity.

A regulatory impact analysis (RIA) must

be prepared for major rules with

economically significant effects of $100

million or more annually. We have

determined that there probably will be

no cost impacts because this regulatory

action implements statutory

amendments and longstanding

Department policy. Recently the Third

Circuit Court of Appeals interpreted

existing regulations inconsistently with

the language of the CRRA and our

existing practices. The Department

disagrees with that decision. However,

these proposed regulations would

clarify the Department’s policy and

practice in light of that decision, and

would do that only a short time after the

court decision, thereby ensuring

continuity in that policy and practice

and avoiding changes in the behavior of

recipients within the Third Circuit that

could occur if Federal civil rights

jurisdiction were changed. Therefore, it

is possible that there will be no costs

Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Proposed Rules 64197

associated with the proposed

regulations. Since we believe that this

proposed rule would have no significant

effect on program expenditures, we do

not consider this to be a major rule.

Accordingly, we have not prepared an

RIA.

The Unfunded Mandates Reform Act

of 1995 also requires that agencies

perform an assessment of anticipated

costs and benefits before proposing any

rule that may result in expenditures, in

any given year by State, local, or tribal

governments, in the aggregate, or by the

private sector, of $100 million. We are

not preparing an analysis under this Act

because this rule is not a major rule as

defined at 5 U.S.C. 804(2), nor will it

have a significant economic impact on

the operations of a substantial number

of small providers of health and human

services. The proposed rule implements

statutory amendments and longstanding

Department policy.

We have reviewed this proposed rule

under the threshold criteria of Executive

Order 13132, Federalism. We have

determined that it does not significantly

affect the rights, roles and

responsibilities of States.

In accordance with the provisions of

Executive Order 12866, this regulation

was reviewed by the Office of

Management and Budget.

List of Subjects

45 CFR Part 80

Civil rights, Discrimination.

45 CFR Part 84

Blind, Civil rights, Discrimination,

Handicapped, Individuals with

Disabilities.

45 CFR Part 86

Civil rights, Sex discrimination.

45 CFR Parts 90 and 91

Aged, Civil rights, discrimination.

Dated: August 1, 2000.

Thomas E. Perez,

Director, Office for Civil Rights.

Dated: August 2, 2000.

Donna Shalala,

Secretary.

For the reasons discussed in the

preamble, the Secretary proposes to

amend parts 80, 84, 86, 90, and 91 of

title 45 of the Code of Federal

Regulations as follows:

PART 80—NONDISCRIMINATION

UNDER PROGRAMS RECEIVING

FEDERAL ASSISTANCE THROUGH

THE DEPARTMENT OF HEALTH AND

HUMAN SERVICES EFFECTUATION

OF TITLE VI OF THE CIVIL RIGHTS

ACT OF 1964

1. The authority citation for part 80

continues to read as follows:

Authority: Sec. 602, 78 Stat. 252; 42 U.S.C.

2000d–1.

§ 80.2 [Amended]

2. Section 80.2 is amended by

removing the words ‘‘program for

which’’ and adding, in their place,

‘‘program to which’’ and removing the

words ‘‘assisted programs and

activities’’ and adding, in their place,

‘‘financial assistance’’.

§ 80.3 [Amended]

3. Section 80.3(d) is amended by

removing the words ‘‘the benefits of a

program’’, and adding, in their place,

the word ‘‘benefits’’.

4. Section 80.4 is amended as

follows—

A. Removing the words ‘‘to carry out

a program’’ in the first sentence of

paragraph (a)(1);

B. Removing the words ‘‘except a

program’’ and adding, in their place, the

words ‘‘except an application’’ in the

first sentence of paragraph (a)(1);

C. Removing the words ‘‘for each

program’’ and the words ‘‘in the

program’’ in the fifth sentence of

paragraph (a)(1);

D. Removing the words ‘‘State

programs’’ and adding, in their place,

the words ‘‘Federal financial assistance’’

in the heading of paragraph (b);

E. Removing the words ‘‘to carry out

a program involving’’ and adding, in

their place, the word ‘‘for’’ in paragraph

(b); and

F. Revising paragraph (d)(2).

The revision of paragraph (d)(2) reads

as follows:

§ 80.4 Assurances required.

* * * * *

(d) * * *

(2) The assurance required with

respect to an institution of higher

education, hospital, or any other

institution, insofar as the assurance

relates to the institution’s practices with

respect to admission or other treatment

of individuals as students, patients, or

clients of the institution or to the

opportunity to participate in the

provision of services or other benefits to

such individuals, shall be applicable to

the entire institution.

* * * * *

5. Section 80.5 is amended as

follows—

A. Removing the words ‘‘under the

program’’ in paragraph (a).

B. Revising paragraph (c); and C.

Removing the last sentence of paragraph

(e).

The revision of paragraph (c) reads as

follows:

§ 80.5 Illustrative application.

* * * * *

(c) In a research, training,

demonstration, or other grant to a

university for activities to be conducted

in a graduate school, discrimination in

the admission and treatment of students

in the graduate school is prohibited, and

the prohibition extends to the entire

university.

* * * * *

§ 80.6 [Amended]

6. Section 80.6(b) is amended by

removing the words ‘‘of any program

under’’ in the last sentence and adding,

in their place, the word ‘‘in’’.

§ 80.9 [Amended]

7. Section 80.9(e) is amended by

removing the word ‘‘programs’’ in the

first sentence and adding, in its place,

the words ‘‘Federal statutes, authorities,

or other means by which Federal

financial assistance is extended’’.

8. Section 80.13 is amended by

removing the words ‘‘for any program,’’

and ‘‘under any such program’’ in

paragraph (i); removing the words ‘‘for

the purpose of carrying out a program’’

in paragraph (j); and revising paragraph

(g) and revising the authority citation

following the section to read as follows:

§ 80.13 Definitions.

* * * * *

(g) The term program or activity and

the term program means all of the

operations of—

(1)(i) A department, agency, special

purpose district, or other

instrumentality of a State or of a 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. 8801), system of

vocational education, or other school

system;

(3)(i) An entire corporation,

partnership, or other private

organization, or an entire sole

proprietorship—

64198 Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Proposed Rules

(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 (g)(1),

(g)(2), or (g)(3) of this section; any part

of which is extended Federal financial

assistance.

* * * * *

(Secs. 602, 606, Civil Rights Act of 1964, (42

U.S.C. 2000d–1, 2000d–4a))

9. Appendix A to part 80 is amended

by revising the heading of part 1 and the

heading of part 2 to read as follows:

Appendix A to Part 80—Federal

Financial Assistance to Which These

Regulations Apply

Part 1—Assistance Other Than

Continuing Assistance to States

* * * * *

Part 2—Continuing Assistance to States

* * * * *

10. The title of part 84 is revised to

read as follows:

PART 84—NONDISCRIMINATION ON

THE BASIS OF HANDICAP IN

PROGRAMS OR ACTIVITIES

RECEIVING FEDERAL FINANCIAL

ASSISTANCE

11. The authority citation for part 84

continues to read as follows:

Authority: 20 U.S.C. 1405; 29 U.S.C. 794;

42 U.S.C. 290dd–2; 21 U.S.C. 1174.

§ 84.2 [Amended]

12. Section 84.2 is amended by

removing the word ‘‘each’’ the second

time it appears and adding, in its place,

the word ‘‘the’’; and by removing the

words ‘‘or benefits from’’.

13. Section 84.3 is amended by

redesignating paragraphs (k) and (l) as

paragraphs (l) and (m), respectively; and

adding a new paragraph (k) and adding

an authority citation following this

section to read as follows:

§ 84.3 Definitions.

* * * * *

(k) Program or activity means all of

the operations of—

(1)(i) A department, agency, special

purpose district, or other

instrumentality of a State or of a 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. 8801), 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 (k)(1),

(2), or (3) of this section; any part of

which is extended Federal financial

assistance.

* * * * *

(29 U.S.C. 794(b))

§ 84.4 [Amended]

14. Section 84.4 is amended by—

A. Removing the words ‘‘or benefits

from’’ in paragraphs (a) and (b)(5);

B. Removing the words ‘‘programs or

activities’’ whenever they appear in

paragraph (b)(3), and adding, in their

place, the words ‘‘aids, benefits, or

services’’;

C. Removing the words ‘‘or benefiting

from’’ in paragraph (b)(6); and

D. In paragraph (c) removing the word

‘‘Programs’’ in the heading and adding,

in its place, the words ‘‘Aids, benefits,

or services’’; removing the words ‘‘from

the benefits of a program’’ and adding,

in their place, the words ‘‘from aids,

benefits, or services’’, and removing the

words ‘‘from a program’’ and adding, in

their place, the words ‘‘from aids,

benefits, or services’’.

§§ 84.4, 84.6, 84.12, 84.32, 84.33, 84.36

[Amended]

15. Remove the word ‘‘program’’ and

add, in its place, the words ‘‘program or

activity’’ in the following sections:

A. Section 84.4(b)(1)(v);

B. Section 84.4(b)(4);

C. Section 84.6(a)(3), whenever it

appears;

D. Section 84.12(a), (c) introductory

text, and (c)(1);

E. Section 84.32;

F. Section 84.33(a); and

G. Section 84.36, in the first sentence.

§ 84.5 [Amended]

16. Section 84.5(a) is amended in the

first sentence by removing the words

‘‘for a program or activity’’ and by

removing the words ‘‘the program’’ and

adding, in their place, the words ‘‘the

program or activity’’.

§ 84.8 [Amended]

17. Section 84.8(a) is amended by

removing the words ‘‘programs and

activities’’ in the second sentence and

adding, in their place, the words

‘‘programs or activities’’.

§ 84.11 [Amended]

18. Section 84.11 is amended by—

A. Removing the words ‘‘programs

assisted’’ and adding, in their place, the

words ‘‘programs or activities assisted’’

in paragraph (a)(2);

B. Removing the word ‘‘programs’’

and revising ‘‘apprenticeship’’ to read

‘‘apprenticeships’’ in the last sentence

of paragraph (a)(4).

C. Removing the word ‘‘programs’’

and adding the words ‘‘those that are’’

before ‘‘social or recreational’’ in

paragraph (b)(8).

Subpart C—Accessibility

19. The heading of Subpart C is

amended by removing the word

‘‘PROGRAM’’.

§ 84.22 [Amended]

20. Section 84.22 is amended in

paragraph (a) by removing the words

‘‘Program accessibility’’ in the heading

and adding, in their place, the word

‘‘Accessibility’’ and by removing the

words ‘‘each program or activity to

which this part applies so that the

program or activity, when viewed in its

entirety,’’ in the first sentence and

adding in their place, the words ‘‘its

program or activity so that when each

part is viewed in its entirety, it’’; in

paragraph (b) by removing the words

‘‘offer programs and activities to’’ in the

last sentence and adding, in their place,

the word ‘‘serve’’; and in paragraph

(e)(3) by removing the words ‘‘program

accessibility’’ and adding, in their place,

Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Proposed Rules 64199

the words ‘‘full accessibility under

paragraph (a)’’.

§ 84.31 [Amended]

21. Section 84.31 is amended by

removing the words ‘‘or benefit from’’

whenever they appear; and by removing

the words ‘‘programs and activities’’ and

adding, in their place, the words

‘‘programs or activities’’.

§ 84.33 [Amended]

22. Section 84.33 is amended by—

A. Removing the words

‘‘individualized education program’’

and adding, in their place, the words

‘‘Individualized Education Program’’ in

paragraph (b)(2);

B. Removing the words ‘‘in or refer

such person to a program other than the

one that it operates’’ and adding, in

their place, the words ‘‘or refer such a

person for aids, benefits, or services

other than those that it operates or

provides’’ in the first sentence of

paragraph (b)(3);

C. Removing the words ‘‘in or refers

such person to a program not operated’’

in the second sentence of paragraph

(c)(1), and adding, in their place, the

words ‘‘or refers such person for aids,

benefits, or services not operated or

provided’’;

D. Removing the words ‘‘of the

program’’ in the second sentence of

paragraph (c)(1) and adding, in their

place, the words ‘‘of the aids, benefits,

or services’’;

E. Removing the words ‘‘in or refers

such person to a program not operated’’

in paragraph (c)(2), and adding, in their

place, the words ‘‘or refers such person

for aids, benefits, or services not

operated or provided’’;

F. Removing the words ‘‘from the

program’’ in paragraph (c)(2), and

adding, in their place, the words ‘‘from

the aids, benefits, or services’’;

G. Removing the words ‘‘in the

program’’ in paragraph (c)(2), and

adding, in their place, the words ‘‘in the

aids, benefits, or services’’;

H. Removing the words ‘‘If placement

in a public or private residential

program’’ and adding, in their place, the

words ‘‘If a public or private residential

placement’’ in paragraph (c)(3); and

removing the words ‘‘the program’’, and

adding, in their place, the words ‘‘the

placement’’; and

I. Removing the words ‘‘such a

program’’ in the last sentence of

paragraph (c)(4), and adding, in their

place, the words ‘‘a free appropriate

public education’’.

§ 84.35 [Amended]

23. Section 84.35(a) is amended by

removing the words ‘‘program shall’’

and adding, in their place, the words

‘‘program or activity shall’’ and by

removing the word ‘‘a’’ before the word

‘‘regular’’ and by removing the word

‘‘program’’ before the word ‘‘and’’.

§ 84.37 [Amended]

24. Section 84.37(c)(1) is amended by

removing the words ‘‘programs and

activities’’ in the first sentence and

adding, in their place, the words ‘‘aids,

benefits, or services’’; and by removing

the words ‘‘in these activities’’ in the

last sentence.

§ 84.38 [Amended]

25. Section 84.38 is amended by—

A. Removing the word ‘‘programs’’ in

the section heading;

B. Removing the words ‘‘operates a’’

and adding, in their place, the word

‘‘provides’’;

C. Removing the words ‘‘program or

activity or an’’ after the word ‘‘care’’ and

adding, in their place, the word ‘‘or’’;

D. Removing the words ‘‘ program or

activity’’ after the word ‘‘education’’;

E. Removing the words ‘‘from the

program or activity’’;

F. Revising the word ‘‘aid’’ to read

‘‘aids’’; and

G. Removing the words ‘‘under the

program or activity’’.

§ 84.39 [Amended]

26. Section 84.39 is amended by—

A. Removing the word ‘‘programs’’ in

the section heading;

B. Removing the words ‘‘operates a’’

and adding, in their place, the word

‘‘provides’’ in paragraph (a);

C. Removing the word ‘‘program’’

after the word ‘‘education’’ in paragraph

(a);

D. Removing the words ‘‘from such

program’’ in paragraph (a);

E. Removing the words ‘‘the

recipient’s program’’ in paragraph (a),

and adding, in their place, the words

‘‘that recipient’s program or activity’’;

and

F. Removing the words ‘‘operates

special education programs shall

operate such programs’’ in paragraph

(c), and adding, in their place, the words

‘‘provides special education shall do

so’’.

§ 84.41 [Amended]

27. Section 84.41 is amended by

removing the words ‘‘programs and

activities’’ whenever they appear in the

section and adding, in their place, the

words ‘‘programs or activities’’; and by

removing the words ‘‘or benefit from’’

whenever they appear in the section.

§ 84.43 [Amended]

28. Section 84.43 is amended by—

A. Removing the words ‘‘program or

activity’’ in paragraph (a) and adding, in

their place, the words ‘‘aids, benefits, or

services’’; and

B. Removing the words ‘‘programs

and activities’’ in paragraph (d), and

adding, in their place, the words

‘‘program or activity’’.

§ 84.44 [Amended]

29. Section 84.44 is amended by—

A. Removing the words ‘‘program of’’

in the second sentence of paragraph (a);

B. Removing the words ‘‘in its

program’’ in paragraph (c); and

C. Removing the words ‘‘under the

education program or activity operated

by the recipient’’ in paragraph (d)(1).

§ 84.47 [Amended]

30. Section 84.47 is amended by

removing the words ‘‘programs and

activities’’ in paragraph (a)(1), and

adding, in their place, the words ‘‘aids,

benefits, or services’’.

§ 84.51 [Amended]

31. Section 84.51 is amended by

removing the words ‘‘or benefit from’’

whenever they appear in the section;

and by removing the word ‘‘and’’ before

the word ‘‘activities’’ and adding, in its

place, the word ‘‘or’’.

§ 84.54 [Amended]

32. Section 84.54 is amended by

removing the words ‘‘operates or

supervises a program or activity’’ and

adding, in their place, the words

‘‘provides aids, benefits, or services’’.

§ 84.55 [Amended]

33. Section 84.55 is amended by

removing the word ‘‘programs’’ in

paragraph (a) and adding in its place,

the words ‘‘programs or activities’’.

PART 86—NONDISCRIMINATION ON

THE BASIS OF SEX IN EDUCATION

PROGRAMS OR ACTIVITIES

RECEIVING FEDERAL FINANCIAL

ASSISTANCE

34. The heading for part 86 is revised

to read as set forth above.

35. Section 86.2 is amended by—

A. Redesignating paragraphs (h)

through (r) as paragraphs (i) through (s),

respectively;

B. Adding a new paragraph (h) and

revising the authority citation following

the section; and

C. Revising newly redesignated

paragraph (i) to remove the words ‘‘or

benefits from’’.

New paragraph (h) reads as follows:

§ 86.2 Definitions

* * * * *

(h) Program or activity and program

means all of the operations of—

(1)(i) A department, agency, special

purpose district, or other

64200 Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Proposed Rules

instrumentality of a State or of a local

government; or

(ii) The entity of such a 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. 8801), 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 (h)(1),

(2), or (3) of this section; any part of

which is extended Federal financial

assistance.

* * * * *

(Secs. 901, 902, 908, Education Amendments

of 1972, 20 U.S.C. 1681, 1682, 1687)

* * * * *

§ 86.4 [Amended]

36. Section 86.4 is amended by

removing the word ‘‘each’’ and adding,

in its place, the word ‘‘the’’ in the first

sentence of paragraph (a).

§ 86.6 [Amended]

37. Section 86.6 is amended by

removing the words ‘‘or benefits from’’

in paragraph (c).

§ 86.11 [Amended]

38. Section 86.11 is amended by

removing the word ‘‘each’’ and adding,

in its place, the word ‘‘the’’; and by

removing the words ‘‘or benefits from’’.

39. The titles of Subparts D and E are

amended by removing the word ‘‘and’’

and adding, in its place, the word ‘‘or’’.

§ 86.31 [Amended]

40. Section 86.31 is amended by—

A. Removing the word ‘‘and’’ in the

section heading, and adding, in its

place, the word ‘‘or’’;

B. Removing the words ‘‘or benefits

from’’ in the first sentence of paragraph

(a); and

C. Removing the words ‘‘Programs not

operated’’ in the heading of paragraph

(d), and adding, in their place, the

words ‘‘Aid, benefits, or services not

provided’’.

§ 86.40 [Amended]

41. Section 86.40 is amended by

removing the words ‘‘in the normal

education program or activity’’ in

paragraph (b)(2); and by removing the

words ‘‘instructional program in the

separate program’’ in paragraph (b)(3)

and adding, in their place, the words

‘‘separate portion’’.

42. Section 86.51 is amended by

removing the words ‘‘or benefits from’’

in paragraph (a)(1).

PART 90—NONDISCRIMINATION ON

THE BASIS OF AGE IN PROGRAMS OR

ACTIVITIES RECEIVING FEDERAL

FINANCIAL ASSISTANCE

43. The authority citation for part 90

is revised to read as follows:

Authority: Age Discrimination Act of 1975,

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

§ 90.1 [Amended]

44. Section 90.1 is amended by

removing the words ‘‘programs and

activities’’ in the last sentence and

adding, in their place, the words

‘‘programs or activities’’.

§ 90.3 [Amended]

45. Section 90.3 is amended by

removing the word ‘‘and’’ in the section

heading and adding, in its place, the

word ‘‘or’’.

46. Section 90.4 is amended by

adding in alphabetical order a new

definition of ‘‘Program or activity’’ and

adding an authority citation following

the section to read as follows:

§ 90.4 How are the terms in these

regulations defined?

* * * * *

Program or activity means all of the

operations of—(a)(1) A department,

agency, special purpose district, or other

instrumentality of a State or of a local

government; or

(2) 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;

(b)(1) A college, university, or other

postsecondary institution, or a public

system of higher education; or

(2) A local educational agency (as

defined in 20 U.S.C. 8801), system of

vocational education, or other school

system;

(c)(1) An entire corporation,

partnership, or other private

organization, or an entire sole

proprietorship—

(i) If assistance is extended to such

corporation, partnership, private

organization, or sole proprietorship as a

whole; or

(ii) Which is principally engaged in

the business of providing education,

health care, housing, social services, or

parks and recreation; or

(2) 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

(d) Any other entity which is

established by two or more of the

entities described in paragraph (a), (b),

or (c) of this definition; any part of

which is extended Federal financial

assistance.

* * * * *

(42 U.S.C. 6107)

§ 90.34 [Amended]

47. Section 90.34 is amended by

removing the word ‘‘programs’’ and

adding, in its place, the words

‘‘programs or activities’’ whenever they

appear in the section.

§ 90.42 [Amended]

48. Section 90.42 is amended by

removing the words ‘‘programs and

activities’’ in the first sentence of

paragraph (a) and adding, in their place,

the words ‘‘programs or activities’’.

§ 90.43 [Amended]

49. Section 90.43 is amended by

removing the word ‘‘program’’ in the

last sentence of paragraph (c)(4).

§ 90.47 [Amended]

50. Section 90.47 is amended by

removing the word ‘‘Federal’’ in the first

sentence of paragraph (c)(2).

§ 90.48 [Amended]

51. Section 90.48 is amended by

removing the words ‘‘program or

activity’’ in the last sentence and

adding, in their place, the words

‘‘Federal financial assistance’’.

§ 90.49 [Amended]

52. Section 90.49 is amended by

removing the word ‘‘program’’

whenever it appears in paragraph (c)

Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Proposed Rules 64201

and adding, in its place, the words

‘‘program or activity’’.

PART 91—NONDISCRIMINATION ON

THE BASIS OF AGE IN PROGRAMS OR

ACTIVITIES RECEIVING FEDERAL

FINANCIAL ASSISTANCE FROM HHS

53. The heading for part 91 is revised

to read as set forth above.

54. The authority citation for part 91

continues to read as follows:

Authority: Age Discrimination Act of 1975,

as amended, 42 U.S.C. 6101 et seq. (45 CFR

part 90).

§ 91.1 [Amended]

55. Section 91.1 is amended by

removing the words ‘‘programs and

activities’’ in the last sentence and

adding, in their place, the words

‘‘programs or activities’’.

§ 91.2 [Amended]

56. Section 91.2 is amended by

removing the words ‘‘programs and

activities’’ in the last sentence and

adding, in their place, the words

‘‘programs or activities’’.

§ 91.3 [Amended]

57. Section 91.3 is amended by

removing the word ‘‘programs’’ in the

section heading and adding, in its place,

the words ‘‘programs or activities’’; and

removing the words ‘‘or benefits from’’

in paragraph (a).

58. Section 91.4 is amended by

adding in alphabetical order a new

definition of ‘‘Program or activity’’ and

adding an authority citation following

the section to read as follows:

§ 91.4 Definition of terms used in these

regulations

* * * * *

Program or activity means all of the

operations of—

(a)(1) A department, agency, special

purpose district, or other

instrumentality of a State or of a local

government; or

(2) 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;

(b)(1) A college, university, or other

postsecondary institution, or a public

system of higher education; or

(2) A local educational agency (as

defined in 20 U.S.C. 8801), system of

vocational education, or other school

system;

(c)(1) An entire corporation,

partnership, or other private

organization, or an entire sole

proprietorship—

(i) If assistance is extended to such

corporation, partnership, private

organization, or sole proprietorship as a

whole; or

(ii) Which is principally engaged in

the business of providing education,

health care, housing, social services, or

parks and recreation; or

(2) 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

(d) Any other entity which is

established by two or more of the

entities described in paragraph (a), (b),

or (c) of this definition; any part of

which is extended Federal financial

assistance.

* * * * *

(Authority: 42 U.S.C. 6107)

§ 91.17 [Amended]

59. Section 91.17 is amended by

removing the word ‘‘program’’

whenever it appears and adding, in its

place, the words ‘‘program or activity’’.

§ 91.18 [Amended]

60. Section 91.18 is amended by

removing the word ‘‘program’’ and

adding, in its place, the words ‘‘program

or activity’’.

§ 91.31 [Amended]

61. Section 91.31 is amended by

removing the words ‘‘programs and

activities’’ in the first sentence and

adding, in their place, the words

‘‘programs or activities’’.

§ 91.32 [Amended]

62. Section 91.32 is amended by

removing the word ‘‘program’’ in

paragraph (b).

§ 91.44 [Amended]

63. Section 91.44 is amended by

removing the word ‘‘program’’ in

paragraph (a)(2).

§ 91.46 [Amended]

64. Section 91.46 is amended by

removing the words ‘‘program and

activity’’ in the first sentence of

paragraph (b) and adding, in their place,

the words ‘‘program or activity’’; and by

removing the word ‘‘Federal’’ in the first

sentence of paragraph (c)(2).

§ 91.49 [Amended]

65. Section 91.49 is amended by

removing the words ‘‘program or

activity’’ in paragraph (b)(2) and adding,

in their place, the words ‘‘Federal

financial assistance’’.

[FR Doc. 00–27306 Filed 10–25–00; 8:45 am]

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