Federal Register / Vol. 78, No. 94 / Wednesday, May 15, 2013 / Proposed Rules 28569 

(i) Taking the sum of the value of 

paragraphs (e)(7), (e)(9), and (e)(11) of 

this section for each State. 

(ii) For States qualifying under 

paragraph (e)(12) of this section, adding 

the value of paragraph (e)(12)(v) of this 

section. 

(iii) Reducing the amount of 

paragraph (e)(14)(i) of this section for 

each State that does not qualify under 

paragraph (e)(12)(v) based on the 

proportion of each State’s preliminary 

unreduced DSH allotment compared to 

the national total of preliminary 

unreduced DSH allotments so that the 

sum of paragraph (e)(14)(iii) of this 

section equals the sum of paragraph 

(e)(12)(v) of this section. 

(f) Annual DSH allotment reduction 

application. For each fiscal year 

identified in paragraph (c) of this 

section, CMS will subtract the Statespecific DSH allotment amount 

determined in paragraph (e)(14) of this 

section from that State’s final unreduced 

DSH allotment. This amount is the 

State’s final DSH allotment for the fiscal 

year. 

■ 3. Section 447.299 is amended by 

adding paragraphs (c)(19), (c)(20) and 

(c)(21) to read as follows: 

§ 447.299 Reporting requirements. 

* * * * * 

(c) * * * 

(19) Medicaid provider number. 

(20) Medicare provider number. 

(21) Total hospital cost. The total 

annual costs incurred by each hospital 

for furnishing inpatient hospital and 

outpatient hospital services. 

* * * * * 

(Catalog of Federal Domestic Assistance 

Program No. 93.778, Medical Assistance 

Program) 

Dated: April 26, 2013. 

Marilyn Tavenner, 

Acting Administrator, Centers for Medicare 

& Medicaid Services. 

Approved: May 9, 2013. 

Kathleen Sebelius, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2013–11550 Filed 5–13–13; 11:15 am] 

BILLING CODE 4120–01–P 

NATIONAL FOUNDATION ON THE 

ARTS AND 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, National Foundation on the 

Arts and Humanities. 

ACTION: Proposed rule. 

SUMMARY: The National Endowment for 

the Humanities (NEH) is issuing Age 

Discrimination Act of 1975 regulations 

at 45 CFR part 1172. These regulations 

implement provisions of the Age 

Discrimination Act of 1975 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. The 

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: Written comments must be 

postmarked and electronic comments 

must be submitted on or before July 15, 

2013. 

ADDRESSES: You may submit comments 

by any of the following methods: email 

to gencounsel@neh.gov; fax to 202–606– 

8600, please send your comments to the 

attention of Gina Raimond; or postal 

mail to Gina Raimond, Attorney 

Advisor, Office of the General Counsel, 

National Endowment for the 

Humanities, 1100 Pennsylvania Ave. 

NW., Room 529, Washington, DC 20506. 

To ensure proper handling, please 

reference ‘‘Age Discrimination Act 

Regulations’’ on your correspondence. 

FOR FURTHER INFORMATION CONTACT: Gina 

Raimond, Office of the General Counsel, 

National Endowment for the 

Humanities, 202–606–8322 (voice) or 

202–606–8282 (TDD). 

SUPPLEMENTARY INFORMATION: 

Background Information 

The Age Discrimination Act of 1975, 

as amended, 29 U.S.C. 6101, et seq., (the 

‘‘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 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 part 

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), which were closely 

based on the general, government-wide 

regulations. NEH’s original proposed 

rule adopted many substantively 

identical sections and cross-referenced 

sections from the government-wide 

regulations, rather than repeating them 

in full. HHS reviewed and approved 

NEH’s initial agency-specific regulations 

in 1985; however, NEH did not publish 

the final regulations. 

Since such a significant amount of 

time has passed since NEH initially 

drafted the proposed rule, and because 

regulatory development guidelines have 

changed over the years, NEH 

determined that it would be best to 

begin the regulatory process anew by 

drafting new agency-specific age 

discrimination regulations. As a 

practical matter, however, the absence 

of agency-specific 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. 

Further, NEH has consistently fulfilled 

its obligation to report annually to 

Congress through HHS on its 

compliance and enforcement activities. 

Overview of Proposed Rule 

NEH has designed this proposed rule 

to fulfill the agency’s statutory and 

regulatory obligations to issue a 

regulation implementing the Act that 

conforms to the government-wide 

regulations at 45 CFR part 90. 


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NEH’s proposed regulations are 

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 

NEH’s age discrimination regulations, 

which is to set out NEH’s policies and 

procedures in accordance with the Act 

and the government-wide regulations. 

The regulations apply to any program or 

activity receiving Federal financial 

assistance from NEH. Subpart A also 

defines terms used in the regulations, 

many of which are identical to the 

definitions in the government-wide 

regulations. The definition of the term 

‘‘recipient’’ points out the 

inapplicability of these regulations to 

assistance programs administered 

directly by the Federal government to 

beneficiaries. With respect to direct 

assistance programs, the regulations 

may apply whenever direct aid is 

provided to an individual on conditions 

that the aid is spent in providing 

services or benefits to others. Further, 

because the Act contains several 

exceptions which limit the general 

prohibition against age discrimination, 

the regulations provide definitions for 

two terms that are essential to 

understanding two of those exceptions: 

‘‘normal operation’’ and ‘‘statutory 

objective.’’ 

Subpart B—Standards for Determining 

Age Discrimination 

Subpart B sets out the standards NEH 

uses for determining illegal age 

discrimination, which are based on the 

government-wide regulations. The 

regulations also establish a four-part test 

for a specific age distinction to satisfy 

the ‘‘normal operation’’ or ‘‘statutory 

objective’’ requirement for a recipient to 

use an age-based distinction in a 

program or activity receiving Federal 

financial assistance. NEH will use this 

four-part test to scrutinize age 

distinctions, if any, which are imposed 

in NEH-assisted programs, but which 

are not explicitly authorized by a 

Federal, State or local statute. NEH 

recipients are also permitted to take an 

action otherwise prohibited by the Act 

if the action is based on ‘‘reasonable 

factors other than age,’’ but only if the 

factor bears a direct and substantial 

relationship to the program’s normal 

operation or to the achievement of a 

statutory objective. 

Subpart C—Responsibilities of NEH 

Recipients 

Subpart C sets forth the duties of NEH 

recipients. NEH recipients are 

responsible for ensuring that their 

programs and activities are in 

compliance with the Act and NEH 

regulations. Where an NEH recipient 

passes on financial assistance to 

subrecipients, the recipient must notify 

subrecipients of their obligations under 

the regulations. Under these regulations, 

NEH could require a recipient or 

subrecipient to complete a written selfevaluation of its compliance with the 

Act and these regulations. The selfevaluation must be kept on file for three 

years from its effective date and made 

available to the public upon request. 

Subpart D—Investigation, Conciliation, 

and Enforcement Procedures 

Subpart D establishes the procedures 

for investigation, conciliation, and 

enforcement of the Act, and closely 

follows the procedural requirements 

included in the government-wide age 

discrimination regulations. Mediation is 

the first step in the complaint process. 

NEH will refer all complaints of 

discrimination under the Act to the 

Federal agency designated by HHS to 

manage the mediation process. 

Complainants and NEH recipients must 

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 settlement 

agreement is violated. Finally, the 

regulations permit NEH to withhold 

funds and disburse them to an 

appropriate alternate recipient, if the 

alternate has demonstrated the ability to 

comply with the 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 

proposed 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 proposed 

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 certifies that the proposed rule will 

not have a significant economic impact 

on a substantial number of small 

entities. In making this determination, 

NEH used the definition of small entity 

set forth in the RFA: (1) A small 

business, as defined by the Small 

Business Administration (SBA) in 13 

CFR part 121.201; (2) a small 

governmental jurisdiction, which is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization, which is any nonprofit enterprise that is independently 

owned and operated and is not 

dominant in its field. Some NEH grant 

programs support humanities projects 

developed by small, independentlyowned non-profits, such as museums, 

libraries, and other cultural 

organizations. NEH funds 

approximately 75–100 small non-profits 

each year, which accounts for less than 

ten percent of NEH’s annual funding. 

However, the proposed 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 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 1979. The 

proposed rule only formalizes those 

existing requirements for NEH 

recipients. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

NEH has determined that the 

proposed rule is not a ‘‘major rule’’ as 

defined by section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (SBREFA), as 

amended, Public Law 104–121 (5 U.S.C. 

804). This rule will not result in: (1) An 


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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 proposed 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 

proposed 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 agencyspecific 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 

proposed 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 proposed 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 

proposed 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. 

List of Subjects in 45 CFR Part 1172 

Administrative practice and 

procedure, Age discrimination, Civil 

rights, Grant programs, Reporting and 

recordkeeping requirements. 

Dated: May 1, 2013. 

Michael P. McDonald, 

General Counsel. 

For the reasons stated in the 

preamble, NEH proposes to amend 45 

CFR 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 Compliance procedure. 

1172.37 Hearings, decisions, posttermination proceedings. 

1172.38 Remedial action by recipients. 

1172.39 Alternate funds disbursal 

procedure. 

1172.40 Exhaustion of administrative 

remedies. 

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

90. 

Subpart A—General 

§ 1172.1 Purpose. 

The purpose of this part is to 

implement the Age Discrimination Act 

of 1975, and as required by the general, 

government-wide age discrimination 

regulations at 45 CFR part 90. 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 these 

regulations. 

§ 1172.2 Application. 

(a) The Act and the regulations in this 

part apply to any program or activity 

receiving financial assistance from the 

National Endowment for the Humanities 

(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) Established criteria for 

participation in age-related terms; or 

(iii) Described intended beneficiaries 

or target groups in age-related terms. 

(2) Any employment practice of any 

employer, employment agency, labor 

organization, or any labor-management 

joint apprenticeship training program, 

except for any program or activity 

receiving Federal financial assistance 

for public service employment under 

the Workforce Investment Act of 1998 

(29 U.S.C. 2801, et seq.). 

§ 1172.3 Definitions. 

As used in these regulations, the term: 

Act means the Age Discrimination Act 

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

seq. (Title III of 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. 

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 


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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 (a), (b), 

or (c) 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 passed 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 these 

regulations. 

United States means the fifty states, 

the District of Columbia, Puerto Rico, 

the Virgin Islands, American Samoa, 

Guam, Wake Island, the Canal Zone, the 

Trust Territory of the Pacific Islands, the 

Northern Marianas, and the territories 

and possessions of the United States. 

Subpart B—Standards for Determining 

Age Discrimination 

§ 1172.11 Rules against age 

discrimination. 

The rules stated in this section are 

limited by the exceptions contained in 

§ 1172.12. 

(a) General rule: No person in the 

United States shall, on the basis of age, 

be excluded from participation in, be 

denied the benefits of, or be subjected 

to discrimination under, any program or 

activity receiving Federal financial 

assistance. 

(b) Specific rules: A recipient may 

not, in any program or activity receiving 

Federal financial assistance, directly or 

through contractual, licensing, or other 

arrangements use age distinctions or 

take any other actions which have the 

effect, on the basis of age, of: 

(1) Excluding individuals from, 

denying them the benefits of, or 

subjecting them to discrimination 

under, a program or activity receiving 

Federal financial assistance, or 

(2) Denying or limiting individuals in 

their opportunity to participate in any 

program or activity receiving Federal 

financial assistance. 

(c) The specific forms of age 

discrimination listed in paragraph (b) of 

this section do not necessarily 

constitute a complete list of 

discriminatory actions. 

§ 1172.12 Exceptions to the rules against 

age discrimination. 

(a) Normal operation or statutory 

objective of any program or activity. A 

recipient may take an action otherwise 

prohibited by § 1172.11 if the action 

reasonably takes into account age as a 

factor necessary to the normal operation 

or the achievement of any statutory 

objective of a program or activity, if: 

(1) Age is used as a measure or 

approximation of one or more other 

characteristics; 

(2) The other characteristic(s) must be 

measured or approximated in order for 

the normal operation of the program or 

activity to continue, or to achieve any 

statutory objective of the program or 

activity; 

(3) The other characteristic(s) can be 

reasonably measured or approximated 

by the use of age; and 

(4) The other characteristic(s) are 

impractical to measure directly on an 

individual basis. 

(b) Reasonable factors other than age. 

A recipient may take an action 

otherwise prohibited by § 1172.11 

which is based on a factor other than 

age, even though that action may have 

a disproportionate effect on persons of 

different ages. An action may be based 

on a factor other than age only if the 

factor bears a direct and substantial 

relationship to the normal operation of 

the program or activity or to the 

achievement of a statutory objective. 

(c) Affirmative action by recipient. 

Even in the absence of a finding of 

discrimination, a recipient may take 

affirmative action to overcome the 

effects or conditions that resulted in 

limited participation in the recipient’s 

program or activity on the basis of age. 

(d) Special benefits for children and 

the elderly. If a recipient operating a 

program or activity provides special 

benefits to the elderly or to children, 

such use of age distinctions shall be 

presumed to be necessary to the normal 

operation of the program or activity, 

notwithstanding the provisions of 

§ 1172.11. 

§ 1172.13 Burden of proof. 

The recipient of Federal financial 

assistance bears the burden of proving 

that an age distinction or other action 

falls within the exceptions outlined in 

§ 1172.12. 

Subpart C—Responsibilities of NEH 

recipients 

§ 1172.21 General responsibilities. 

A recipient has responsibility to 

ensure that its programs or activities are 

in compliance with the Act and these 

regulations and to take steps to 


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eliminate violations of the Act and these 

regulations. A recipient also has 

responsibility to maintain records, 

provide information, and to afford NEH 

access to its records to the extent NEH 

finds necessary to determine whether 

the recipient is in compliance with the 

Act and these regulations. 

§ 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 these regulations. 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 these regulations. 

§ 1172.23 Self-evaluation. 

As part of a compliance review under 

§ 1172.31 or a complaint investigation 

under § 1172.34, NEH may require a 

recipient employing the equivalent of 

fifteen (15) or more full time employees 

to complete a written self-evaluation, in 

a manner specified by NEH, of any age 

distinction imposed in its program or 

activity receiving Federal financial 

assistance. A recipient must take 

corrective and remedial action 

whenever a self-evaluation indicates a 

violation of the Act, and the recipient 

must make the self-evaluation available 

upon request to NEH and to the public 

for a period of three (3) years following 

its completion. 

§ 1172.24 Information requirements. 

Each recipient must keep records 

containing information necessary to 

determine whether the recipient is in 

compliance with the Act and these 

regulations, and must make them 

available to NEH upon request. Each 

recipient must also permit reasonable 

access by NEH to its books, records, 

accounts, and other facilities and 

sources of information, to the extent 

necessary for NEH to determine whether 

the recipient is in compliance with the 

Act and this part. 

Subpart D—Investigation, Conciliation, 

and Enforcement Procedures 

§ 1172.31 Compliance reviews. 

(a) NEH may conduct compliance 

reviews, pre-award reviews, and other 

similar procedures in order to 

investigate and correct violations of the 

Act and these regulations. NEH may 

conduct these reviews even in absence 

of a complaint against the recipient. 

Reviews may be as comprehensive as 

necessary to determine whether a 

recipient is in compliance with the Act 

and this part. 

(b) If a compliance review or preaward review indicates a violation of 

the Act and these regulations, NEH will 

attempt to contact the recipient and 

achieve the recipient’s voluntary 

compliance with the Act. If the recipient 

does not comply voluntarily, NEH may 

pursue enforcement efforts as described 

in § 1172.36. 

§ 1172.32 Complaints. 

(a) Any person, individually or as a 

member of a class or on behalf of others, 

may file a complaint with NEH, alleging 

discrimination prohibited by the Act 

and the regulations in this part based on 

an action occurring on or after July 1, 

1979. A complainant must file a 

complaint in writing within 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. 

§ 1172.33 Mediation. 

(a) Referral of complaints for 

mediation. NEH will promptly refer all 

complaints that fall within the 

jurisdiction of these regulations, and 

that contain all information necessary 

for further processing, to the agency 

designated by the Secretary to manage 

the mediation process. 

(b) Both the complainant and the 

recipient must participate in the 

mediation process to the extent 

necessary to reach an agreement, or for 

the mediator to make an informal 

judgment that an agreement is 

impossible. The complainant and 

recipient must meet with the mediator 

at least once before NEH will accept a 

judgment that an agreement is 

impossible. However, the recipient and 

the complainant need not meet with the 

mediator at the same time. 

(c) If the complainant and recipient 

reach a mutually satisfactory resolution 

of the complaint during the mediation 

period, they must prepare an agreement 

in writing. The mediator will send a 

copy of the settlement agreement to 

NEH. NEH will take no further action 

based on that complaint unless it 

appears that the complainant or the 

recipient has failed to comply with the 

agreement. 

(d) The mediator will 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 must 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. 

The mediator may extend this sixty-day 

period, provided NEH concurs, for not 

more than thirty (30) days, if the 

mediator determines that resolution is 

likely to occur within such period. 

§ 1172.34 Investigation. 

(a) Informal investigation. (1) NEH 

will investigate complaints that are 

unresolved after mediation or are 

reopened because of a violation of a 

settlement 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 


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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. If NEH 

cannot resolve the complaint through 

informal investigation, it will develop 

formal findings through further 

investigation of the complaint. If the 

formal investigation indicates a 

violation of the Act or these regulations, 

NEH will attempt to obtain voluntary 

compliance. If NEH cannot obtain 

voluntary compliance, it will arrange for 

enforcement as described in § 1172.36. 

§ 1172.35 Prohibition against intimidation 

or retaliation. 

A recipient may not engage in acts of 

intimidation or retaliation against any 

person who attempts to assert a right 

protected by the Act or this part, or 

cooperates in any mediation, 

investigation, hearing, or other part of 

NEH’s investigation, conciliation, and 

enforcement process. 

§ 1172.36 Compliance 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 Actor these 

regulations. A recipient must have the 

opportunity for a hearing on record 

before an administrative law judge, who 

must determine that a violation has 

occurred. The determination of the 

recipient’s violation may be made only 

after a recipient has had an opportunity 

for a hearing on the record before an 

administrative law judge. 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 

these regulations. 

(ii) Use of any requirement of or 

referral to any Federal, State, or local 

government agency that will have the 

effect of correcting a violation of the Act 

or this part. 

(b) NEH will limit any termination 

under § 1172.36(a)(1) to the particular 

recipient and particular program or 

activity, or portion thereof, that NEH 

finds in violation of the Act or these 

regulations. NEH will not base its 

decision to terminate on any other 

program or activity of the recipient that 

does not receive Federal financial 

assistance from NEH. 

(c) NEH will not take action under 

§ 1172.36(a) until: 

(1) The Chairman has advised the 

recipient of its failure to comply with 

the Act or these regulations, and that 

NEH has determined that voluntary 

compliance cannot be obtained, and 

(2) Thirty (30) days have elapsed after 

the Chairman has sent a written report 

of the circumstances and grounds of the 

action to the Congressional 

Committee(s) having legislative 

jurisdiction over the program or activity 

involved. The Chairman will file such 

report whenever it takes action under 

§ 1172.36(a). 

(d) NEH also may defer granting new 

Federal financial assistance to a 

recipient when a hearing under 

§ 1172.36(a)(1) is initiated. 

(1) New Federal financial assistance 

includes all assistance for which NEH 

requires an application or approval, 

including renewal or continuation of 

existing activities, or authorization of 

new activities, during the deferral 

period. New Federal financial assistance 

does not include assistance approved 

prior to the beginning of a termination 

hearing under § 1172.36(a)(1), or 

increases in funding as a result of 

changed computation of formula 

awards. 

(2) NEH will not begin a deferral until 

the recipient has received a notice of an 

opportunity for a hearing under 

§ 1172.36(a)(1). NEH will not continue a 

deferral for more than sixty (60) days 

unless a hearing has begun within that 

time, or the time for beginning the 

hearing has been extended by mutual 

written consent of the recipient and 

NEH. NEH will not continue a deferral 

for more than thirty (30) days after the 

close of the hearing, unless the hearing 

results in a finding against the recipient. 

If the hearing results in a finding against 

the recipient, NEH must terminate 

funds. 

§ 1172.37 Hearings, decisions, posttermination proceedings. 

Certain NEH procedural provisions 

applicable to Title VI of the Civil Rights 

Act of 1964 apply to NEH enforcement 

of these regulations. They are found at 

45 CFR 1110.9 through 1110.11. 

§ 1172.38 Remedial action by recipients. 

Where NEH finds a recipient has 

discriminated on the basis of age, the 

recipient shall take any remedial action 

that NEH may require to overcome the 

effects of discrimination. If another 

recipient exercises control over the 

recipient that has discriminated, NEH 

may require both recipients to take 

remedial action. 

§ 1172.39 Alternate funds disbursal 

procedure. 

When NEH withholds funds from a 

recipient under these regulations, 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 these regulations and to achieve 

the goals of the National Foundation on 

the Arts and the Humanities Act of 

1965, Public Law 89–209 (20 U.S.C. 

951)—the Federal statute authorizing 

the Federal financial assistance. 

§ 1172.40 Exhaustion of administrative 

remedies. 

(a) A complainant may file a civil 

action under the Act and these 

regulations following the exhaustion of 

administrative remedies. Administrative 

remedies are exhausted if 180 days have 

elapsed since the complainant filed the 

complaint and NEH has made no 

finding with regard to the complaint, or 

NEH issues any finding in favor of the 

recipient. 

(b) If either of the conditions set forth 

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

(1) Promptly advise the complainant 

of this fact, 

(2) Advise the complainant of his or 

her right, under section 305(e) of the 

Act, to bring a civil action for injunctive 

relief that will effect the purposes of the 

Act, 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 action 

will be brought, and whether or not 

attorney’s fees are demanded in the 

event the complainant prevails, and 


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(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. 

[FR Doc. 2013–10844 Filed 5–14–13; 8:45 am] 

BILLING CODE 7536–01–P 


sroberts on DSK5SPTVN1PROD with PROPOSALS