Federal Register / Vol. 82, No. 195 / Wednesday, October 11, 2017 / Rules and Regulations 47107 

§ 0.216 Influencing legislation or 

petitioning Congress. 

Except for the official handling, 

through the proper channels, of matters 

relating to legislation in which the 

Department has an interest, employees 

shall not use government time, money, 

or property to petition a Member of 

Congress to favor or oppose any 

legislation or proposed legislation, or to 

encourage others to do so. This section 

does not prohibit the use of government 

time by union representatives to 

petition a Member of Congress to favor 

or oppose any legislation or proposed 

legislation, where permitted by the 

terms of a collective bargaining 

agreement. 

Dated: October 4, 2017. 

Kody H. Kinsley, 

Assistant Secretary for Management. 

[FR Doc. 2017–21906 Filed 10–10–17; 8:45 am] 

BILLING CODE 4810–25–P 

DEPARTMENT OF THE TREASURY 

31 CFR Part 23 

RIN 1505–AC51 

Nondiscrimination on the Basis of Age 

in Programs and Activities Receiving 

Federal Financial Assistance From the 

Department of the Treasury 

AGENCY: Department of the Treasury. 

ACTION: Final rule. 

SUMMARY: This final rule sets out the 

Department of the Treasury’s (Treasury) 

rules for implementing the Age 

Discrimination Act of 1975, as amended 

(the Act). The Act prohibits 

discrimination on the basis of age in 

programs and activities receiving 

Federal financial assistance. The Act, 

which applies to persons of all ages, 

permits the use of certain age 

distinctions and factors other than age 

that meet the Act’s requirements. This 

final rule follows publication of an 

August 4, 2015, proposed rule and takes 

into account the comments received. 

DATES: Effective November 13, 2017. 

FOR FURTHER INFORMATION CONTACT: 

Mariam G. Harvey, Director, Office of 

Civil Rights and Diversity, Department 

of the Treasury, (202) 622–0316 (voice). 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Age Discrimination Act of 1975, 

42 U.S.C. 6101–6107 (‘‘the Act’’), which 

Congress enacted as part of amendments 

to the Older Americans Act (Pub. L. 94– 

135, 89 Stat. 713, 728), prohibits 

discrimination on the basis of age in 

programs and activities receiving 

Federal financial assistance. The Civil 

Rights Restoration Act of 1987 (Pub. L. 

100–259, 102 Stat. 28, 31 (1988)) 

amended the Act and other civil rights 

statutes to define ‘‘program or activity’’ 

to mean all of the operations of 

specified entities, any part of which is 

extended Federal financial assistance. 

See 42 U.S.C. 6107(4). 

The Act applies to discrimination at 

all age levels. The Act also contains 

specific exceptions that permit the use 

of certain age distinctions and factors 

other than age that meet the Act’s 

requirements. 

The Act required the former 

Department of Health, Education, and 

Welfare (HEW) to issue general, 

government-wide regulations, setting 

standards to be followed by all Federal 

agencies implementing the Act. These 

government-wide regulations, which 

were issued on June 12, 1979 (44 FR 

33768), and became effective on July 1, 

1979, require each Federal agency 

providing financial assistance to any 

program or activity to publish proposed 

regulations implementing the Act, and 

to submit final agency regulations to 

HEW (now the Department of Health 

and Human Services (HHS)), before 

publication in the Federal Register. See 

45 CFR 90.31. 

The Act became effective on the 

effective date of HEW’s final 

government-wide regulations (i.e., July 

1, 1979). Treasury has enforced the 

provisions of the Act since that time. As 

a practical matter, the absence of 

Treasury-specific age regulations has 

not had an impact on Treasury’s legal 

authority to enforce prohibitions against 

discrimination on the basis of age in 

programs or activities receiving Federal 

financial assistance from Treasury. 

Specifically, persons alleging age 

discrimination have not been hampered 

in their ability to file complaints nor has 

Treasury’s Office of Civil Rights and 

Diversity’s (OCRD) ability to process 

these complaints been affected. 

On August 4, 2015 (80 FR 46208), the 

Department issued a notice of proposed 

rulemaking and invited comments on all 

aspects of the proposal. 

II. Overview of Final Rule 

This rule is designed to fulfill the 

statutory and regulatory obligations of 

Treasury to issue a regulation 

implementing the Act that conforms to 

the government-wide regulations at 45 

CFR part 90. The rule carries out the 

Act’s prohibition of discrimination 

based on age in programs and activities 

receiving financial assistance from 

Treasury and provides appropriate 

investigative, conciliation, and 

enforcement procedures. OCRD, part of 

the Office of the Assistant Secretary for 

Management, will conduct Treasury 

enforcement. OCRD enforces all civil 

rights laws applicable to entities 

receiving financial assistance from 

Treasury. 

The rule is not intended to alter the 

legal standards found in the Act or the 

government-wide regulations, which are 

applicable to recipients of Federal 

financial assistance from Treasury 

under other statutes. Treasury does not 

provide financial assistance within the 

meaning of these rules merely by 

disbursing a payment on behalf of 

another Federal agency. The rule closely 

follows the wording and format of rules 

issued by other Federal agencies to 

implement the Act. In particular, 

Treasury modeled much of its proposal 

on the agency-specific regulations 

issued by HHS, the lead Federal agency 

coordinating implementation of the Act 

(45 CFR part 91; 47 FR 57850, Dec. 28, 

1982); and the Department of Education 

(ED) (34 CFR part 110; 58 FR 40194, July 

27, 1993). The government-wide, HHS, 

and ED rules were subjected to 

extensive public scrutiny, and the 

public comments were considered in 

finalizing those rules. Readers may 

review the HHS and ED Federal 

Register publications for historical and 

explanatory material regarding the Act, 

the government-wide regulations, and 

the provisions of the HHS and ED 

implementing regulations. 

In general, the final rule mirrors the 

government-wide regulations at 45 CFR 

part 90 and HHS’s and ED’s regulations 

implementing the Act, with 

modifications to aid consistency and 

clarify the Treasury specific provisions. 

Subpart A sets forth the rule’s purpose, 

applications, and definitions. Subpart B 

contains the standards for determining 

age discrimination. Subpart C comprises 

the duties and responsibilities of 

Treasury recipients. Subpart D 

establishes the procedures for 

investigations, conciliation and 

enforcement. For a complete discussion 

of the proposal, see the August 4, 2015, 

proposed rule at 80 FR 46208. 

III. Summary of Public Comments and 

Explanation of Revisions 

Treasury received three comments on 

the proposed rule which generally 

supported the rule. One commenter 

suggested revisions that are discussed 

below. 

The commenter suggested there could 

be confusion in the employer 

community and among employees who 

may not be aware that the Age 

Discrimination Act (Age Act), and the 

Age Discrimination in Employment Act 

(ADEA) are separate statutes with 


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different purposes, procedures, and 

remedies. In response to this comment, 

Treasury added a reference to the Age 

Act, 42 U.S.C. 6103 (c)(2) to the rule, 

specifically stating that the rule does not 

in any way affect the Equal Employment 

Opportunity Commission’s regulations 

implementing the ADEA at 29 CFR 

1625, 1626, and 1627. 

The commenter noted that the 

proposed rule purported to apply to 

programs under the Comprehensive 

Employment and Training Act (CETA) 

(29 U.S.C. 801, et seq.), but those 

programs are no longer in effect. 

Treasury has revised § 23.3(b)(2) to 

eliminate the reference to CETA. 

The commenter suggested that the 

rule, at § 23.46(a)(2)(ii), should make 

more clear that referrals will be made to 

the EEOC with respect to violations of 

the ADEA. Treasury edited the rule to 

add specifically that referrals will be 

made to the EEOC, Labor, HHS or 

Education as applicable. The general 

reference in § 23.46(a)(2)(ii) to any 

Federal, State, or local government 

agency remains since referrals could be 

made to other agencies as well. 

The commenter suggested that the 

ADEA be added to the definitions 

section in § 23.4. In response to this 

comment, Treasury added the ADEA to 

the definitions section. 

The commenter noted that the 

Supreme Court held in General 

Dynamics Land Systems, Inc. v. Cline, 

540 U.S. 581, 600 (2004) that ‘‘the 

[ADEA] does not mean to stop an 

employer from favoring an older 

employee over a younger one,’’ and 

suggested that Treasury consider 

whether Cline warrants any revisions to 

its Age Act regulation. Treasury has 

reviewed the statute and case law and 

has concluded that, unlike the ADEA, 

the Age Act does not limit its protection 

to a specific age group. The Age Act also 

provides exceptions from age 

discrimination requirements for normal 

operation or to meet statutory objectives 

of any program or activity (see §§ 23.13 

and § 23.14). Therefore, Treasury did 

not adopt any revisions in response to 

this comment. 

Another comment noted that §§ 23.13 

and 23.14 discuss the defenses of 42 

U.S.C. 6103(b)(1) (A) and (B), that the 

defense in subparagraph (A) appears to 

be functionally similar to the ‘‘bona fide 

occupational qualification’’ (BFOQ) 

defense set out in § 4(f)(1) of the ADEA, 

29 U.S.C. 623(f)(1), and that the 

language of the defense in subparagraph 

(B) is identical to the ‘‘reasonable factors 

other than age’’ (RFOA) defense set out 

in the same ADEA section. The 

commenter then noted that the EEOC 

regulations at 29 CFR 1625.6 and 1625.7 

address the BFOQ and RFOA defenses 

and suggested that Treasury consider 

whether any points made in the EEOC’s 

BFOQ or RFOA regulations should be 

adapted for inclusion in the Age Act 

regulation. The commenter also cited 

the Supreme Court’s decision in Smith 

v. City of Jackson, 544 U.S. 228 (2005), 

and note that this case caused the EEOC 

to revise the EEOC’s ‘‘reasonable factor 

other than age’’ regulation. See 29 CFR 

1625.7. It suggested that Treasury 

consider whether Smith warrants a 

revision of § 23.14. 

Treasury considered adopting the 

EEOC’s regulations for BFOQ and RFOA 

under the ADEA, but the legislative 

intent of the two statutes (ADEA and 

Age Act) is different. The ADEA was 

designed to protect older workers, while 

the Age Act was intended to prohibit all 

kinds of unreasonable age 

discrimination. In addition, adopting 

EEOC’s BFOQ and RFOA factors, and 

applying them outside of the 

employment arena could create 

confusion with the ADEA. For these 

reasons, Treasury decided not to adopt 

the EEOC’s regulations for BFOQ and 

RFOA for inclusion in our Age Act 

regulation. 

The commenter noted that §§ 23.43(c) 

and 23.44(a)(3) discuss mediation 

agreements and, if the settlement 

purports to include rights under the 

ADEA, section 7(f) of the ADEA, 29 

U.S.C. 626(f), sets out specific rules for 

the waiver of rights and claims under 

the ADEA. See 29 CFR 1625.22. 

Treasury considered this comment, but 

because the regulations do not cover 

employment, see § 23.3(b)(2)), Treasury 

does not anticipate settlements will 

include rights under the ADEA and has 

made no revisions. 

IV. Regulatory Procedures 

Executive Order 12866 

This rule is not a ’’significant 

regulatory action’’ under Executive 

Order 12866. Therefore, no regulatory 

impact analysis has been prepared. 

Regulatory Flexibility Act 

Pursuant to the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.), it is hereby 

certified that this rule would not have 

a significant economic impact on a 

substantial number of small entities. 

The rule will clarify existing 

requirements for entities receiving 

financial assistance from Treasury. The 

requirements prohibiting age 

discrimination by recipients of Federal 

financial assistance that are in the Act 

and the government-wide regulations 

have been in effect since 1979. In 

addition, entities receiving financial 

assistance from Treasury have been 

expressly informed of their obligations 

to comply with the Act by the offices 

administering the assisted programs. 

Because the rule does not substantively 

change existing obligations on 

recipients, but merely clarifies such 

duties, Treasury certifies that the rule 

will not have a significant economic 

impact on a substantial number of small 

entities. Consequently, a regulatory 

flexibility analysis is not required. 

Unfunded Mandates Reform Act 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 

(Unfunded Mandates Act) requires an 

agency to prepare a budgetary impact 

statement before promulgating a rule 

that includes a Federal mandate that 

may result in expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more in any one year. 

If a budgetary impact statement is 

required, section 205 of the Unfunded 

Mandates Act also requires an agency to 

identify and consider a reasonable 

number of regulatory alternatives before 

promulgating a rule. This rule will not 

result in expenditures by State, local or 

tribal governments or by the private 

sector of $100 million or more. 

Accordingly, the Department has not 

prepared a budgetary impact statement 

or specifically addressed the regulatory 

alternatives considered. 

List of Subjects in 31 CFR Part 23 

Aged, Discrimination against aged. 

For the reasons stated in the 

preamble, the Department of the 

Treasury amends subtitle A of title 31 of 

the CFR by adding part 23 to read as 

follows: 

PART 23—NONDISCRIMINATION ON 

THE BASIS OF AGE IN PROGRAMS 

AND ACTIVITIES RECEIVING 

FEDERAL FINANCIAL ASSISTANCE 

FROM THE DEPARTMENT OF THE 

TREASURY 

Subpart A—General 

Sec. 

23.1 What is the purpose of the Age 

Discrimination Act of 1975? 

23.2 What is the purpose of Treasury’s 

discrimination regulations? 

23.3 To what programs does this part 

apply? 

23.4 Definitions of terms used in this part. 

Subpart B—Standards for Determining Age 

Discrimination 

23.11 Rules against age discrimination. 

23.12 Definitions of ‘‘normal operation’’ 

and ‘‘statutory objective.’’ 

23.13 Exceptions to the rules against age 

discrimination: Normal operation or 


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statutory objective of any program or 

activity. 

23.14 Exceptions to the rules against age 

discrimination: Reasonable factors other 

than age. 

23.15 Burden of proof. 

23.16 Affirmative action by recipients. 

23.17 Special benefits for children and the 

elderly. 

23.18 Age distinctions contained in 

Treasury’s regulations. 

Subpart C—Duties of Treasury Recipients 

23.31 General responsibilities. 

23.32 Notice to subrecipients and 

beneficiaries. 

23.33 Assurance of compliance and 

recipient assessment of age distinctions. 

23.34 Information requirements. 

Subpart D—Investigations, Conciliation, 

and Enforcement Procedures 

23.41 Compliance reviews. 

23.42 Complaints. 

23.43 Mediation. 

23.44 Investigation. 

23.45 Prohibition against intimidation or 

retaliation. 

23.46 Compliance procedures. 

23.47 Hearings, decisions, post-termination 

proceedings. 

23.48 Remedial action by recipient. 

23.49 Alternate funds disbursal procedure. 

23.50 Exhaustion of administrative 

remedies. 

Authority: Age Discrimination Act of 

1975, as amended, 42 U.S.C. 6101 et seq. (45 

CFR part 90) 

Subpart A—General 

§ 23.1 What is the purpose of the Age 

Discrimination Act of 1975? 

The Age Discrimination Act of 1975, 

as amended, 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 and 

activities, and recipients of Federal 

funds, to continue to use certain age 

distinctions and factors other than age 

that meet the requirements of the Act 

and these regulations. 

§ 23.2 What is the purpose of Treasury’s 

age discrimination regulations? 

The purpose of these regulations is to 

set out Treasury’s policies and 

procedures under the Age 

Discrimination Act of 1975 and the 

general age discrimination regulations at 

45 CFR part 90. The Act and the general 

regulations prohibit discrimination on 

the basis of age in programs or activities 

receiving Federal financial assistance. 

The Act and the general regulations 

permit federally assisted programs and 

activities, and recipients of Federal 

funds, to continue to use age 

distinctions and factors other than age 

that meet the requirements of the Act 

and its implementing regulations. These 

regulations do not apply to actions 

arising under the Age Discrimination in 

Employment Act of 1967, Public Law 

90–202, 29 U.S.C. 621 through 634 

(ADEA), and do not in any way affect 

the Equal Employment Opportunity 

Commission’s regulations implementing 

the ADEA at 29 CFR 1625, 1626, and 

1627. 

§ 23.3 To what programs does this part 

apply? 

(a) This part applies to any program 

or activity receiving Federal financial 

assistance from Treasury. 

(b) The regulations in this part do not 

apply to: 

(1) An age distinction contained in 

that part of a Federal, State, or local 

statute or ordinance adopted by an 

elected, general purpose legislative body 

that: 

(i) Provides any benefits or assistance 

to persons based on age; or 

(ii) Establishes criteria for 

participation in age-related terms; or 

(iii) Describes intended beneficiaries 

to target groups in age-related terms; or 

(2) Any employment practice of any 

employer, employment agency, labor 

organization, or any labor-management 

joint apprenticeship training program. 

§ 23.4 Definition of terms used in this part. 

As used in these regulations, the term: 

Act means the Age Discrimination Act 

of 1975, as amended, 42 U.S.C. 6101– 

6107. 

Action means any act, activity, policy, 

rule, standard, or method of 

administration; or the use of any policy, 

rule, standard, or method of 

administration. 

ADEA means the Age Discrimination 

in Employment Act of 1967, which 

forbids employment discrimination 

against anyone 40 years of age or older. 

Age means how old a person is, or the 

number of 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 that necessarily imply a 

particular age or range of ages (for 

example, ‘‘children,’’ ‘‘adult,’’ ‘‘older 

persons,’’ but not ‘‘student’’). 

Federal financial assistance means 

any grant, entitlement, loan, cooperative 

agreement, contract (other than a 

procurement contract or a contract of 

insurance or guaranty), or any other 

arrangement by which Treasury 

provides assistance in the form of: 

(1) Funds; or 

(2) Services of Federal personnel; or 

(3) Real and personal property or any 

interest in or use or 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. 

Program or activity means all of the 

operations of any entity described in 

paragraphs (1) through (4) of this 

definition, any part of which is 

extended Federal financial assistance: 

(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 such 

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) That 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 that is established 

by two or more of the entities described 

in paragraph (1), (2), or (3) of this 

definition. 

Recipient means any State or its 

political subdivision, any 

instrumentality of a State or its political 

subdivision, 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 

Treasury, or his or her designee. 

Subrecipient means any of the entities 

in the definition of recipient to which a 


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recipient extends or passes on Federal 

financial assistance. A subrecipient is 

generally regarded as a recipient of 

Federal financial assistance and has all 

the duties of a recipient in these 

regulations. 

Treasury means the United States 

Department of the Treasury. 

United States means the fifty states, 

the District of Columbia, Puerto Rico, 

the Virgin Islands, American Samoa, 

Guam, Wake Island, the Trust Territory 

of the Pacific Islands, the Northern 

Marianas, and the territories and 

possessions of the United States. 

Subpart B—Standards for Determining 

Age Discrimination 

§ 23.11 Rules against age discrimination. 

The rules stated in this section are 

limited by the exceptions contained in 

§§ 23.13 and 23.14. 

(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 that 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) Non-exhaustive list. The specific 

forms of age discrimination listed in 

paragraph (b) of this section do not 

necessarily constitute a complete list. 

§ 23.12 Definitions of ‘‘normal operation’’ 

and ‘‘statutory objective.’’ 

For purposes of §§ 23.13 and 23.14, 

the terms ‘‘normal operation’’ and 

‘‘statutory objective’’ shall have the 

following meaning: 

(a) Normal operation means the 

operation of a program or activity 

without significant changes that would 

impair its ability to meet its objectives. 

(b) 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. 

§ 23.13 Exceptions to the rules against age 

discrimination: Normal operation or 

statutory objective of any program or 

activity. 

A recipient is permitted to take an 

action, otherwise prohibited by § 23.11, 

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. An 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: 

(a) Age is used as a measure or 

approximation of one or more other 

characteristics; and 

(b) The other characteristic(s) must be 

measured or approximated for the 

normal operation of the program or 

activity to continue, or to achieve any 

statutory objective of the program or 

activity; and 

(c) The other characteristic(s) can be 

reasonably measured or approximated 

by the use of age; and 

(d) The other characteristic(s) are 

impractical to measure directly on an 

individual basis. 

§ 23.14 Exceptions to the rules against age 

discrimination: Reasonable factors other 

than age. 

A recipient is permitted to take an 

action otherwise prohibited by § 23.11 

that 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. 

§ 23.15 Burden of proof. 

The burden of proving that an age 

distinction or other action falls within 

the exceptions outlined in §§ 23.13 and 

23.14 is on the recipient of Federal 

financial assistance. 

§ 23.16 Affirmative action by recipient. 

Even in the absence of a finding of 

discrimination, a recipient may take 

affirmative action to overcome the 

effects of conditions that resulted in 

limited participation in the recipient’s 

program or activity on the basis of age. 

§ 23.17 Special benefits for children and 

the elderly. 

If a recipient’s operation of 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 § 23.13. 

§ 23.18 Age distinctions contained in 

Treasury regulations. 

Any age distinctions contained in a 

rule or regulation issued by Treasury 

shall be presumed to be necessary to the 

achievement of a statutory objective of 

the program or activity to which the rule 

or regulation applies, notwithstanding 

the provisions of § 23.13. 

Subpart C—Duties of Treasury 

Recipients 

§ 23.31 General responsibilities. 

Each Treasury recipient has primary 

responsibility to ensure that its 

programs and activities are in 

compliance with the Act and these 

regulations, and shall take steps to 

eliminate violations of the Act. A 

recipient also has responsibility to 

maintain records, provide information, 

and afford Treasury access to its records 

to the extent Treasury finds necessary to 

determine whether the recipient is in 

compliance with the Act and these 

regulations. 

§ 23.32 Notice to subrecipients and 

beneficiaries. 

(a) Where a recipient passes on 

Federal financial assistance from 

Treasury to subrecipients, the recipient 

shall provide the subrecipients written 

notice of their obligations under the Act 

and these regulations. 

(b) Each recipient shall make 

necessary information about the Act and 

these regulations available to its 

program beneficiaries to inform them 

about the protections against 

discrimination provided by the Act and 

these regulations. 

§ 23.33 Assurance of compliance and 

recipient assessment of age distinctions. 

(a) Written assurance. Each recipient 

of Federal financial assistance from 

Treasury shall sign a written assurance 

as specified by Treasury that it will 

comply with the Act and these 

regulations. 

(b) Recipient assessment of age 

distinctions. (1) As part of a compliance 

review under § 23.41 or a complaint 

investigation under § 23.44, Treasury 

may require a recipient employing the 

equivalent of 15 or more employees to 

complete a written self-evaluation, in a 

manner specified by the responsible 

Department official, of any age 

distinction imposed in its program or 

activity receiving Federal financial 

assistance from Treasury to assess the 

recipient’s compliance with the Act. 

(2) Whenever an assessment indicates 

a violation of the Act or the Treasury 

regulations, the recipient shall take 

corrective action. 


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§ 23.34 Information requirements. 

Each recipient shall: 

(a) Keep records in a form and 

containing information that Treasury 

determines may be necessary to 

ascertain whether the recipient is 

complying with the Act and these 

regulations. 

(b) Provide to Treasury, upon request, 

information and reports that Treasury 

determines are necessary to ascertain 

whether the recipient is complying with 

the Act and these regulations. 

(c) Permit reasonable access by 

Treasury to the books, records, 

accounts, and other recipient facilities 

and sources of information to the extent 

Treasury determines is necessary to 

ascertain whether the recipient is 

complying with the Act and these 

regulations. 

Subpart D—Investigation, Conciliation, 

and Enforcement Procedures 

§ 23.41 Compliance reviews. 

(a) Treasury may conduct compliance 

reviews and pre-award reviews or use 

other similar procedures that will 

permit it to investigate and correct 

violations of the Act and these 

regulations. Treasury may conduct these 

reviews even in the absence of a 

complaint against a recipient. The 

reviews may be as comprehensive as 

necessary to determine whether a 

violation of the Act or these regulations 

has occurred. 

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

the Act or these regulations, Treasury 

will attempt to achieve voluntary 

compliance. If voluntary compliance 

cannot be achieved, Treasury will 

arrange for enforcement as described in 

§ 23.46. 

§ 23.42 Complaints. 

(a) Any person, individually or as a 

member of a class or on behalf of others, 

may file a complaint with Treasury, 

alleging discrimination prohibited by 

the Act or these regulations based on an 

action occurring on or after July 1, 1979. 

A complainant shall file a complaint 

within 180 days from the date the 

complainant first had knowledge of the 

alleged act of discrimination. However, 

for good cause shown, Treasury may 

extend this time limit. 

(b) Treasury will consider the date a 

complaint is filed to be the date upon 

which the complaint is sufficient to be 

processed. 

(c) Treasury will attempt to facilitate 

the filing of complaints wherever 

possible, including taking the following 

measures: 

(1) Accepting as a sufficient 

complaint any written statement that 

identifies the parties involved and the 

date the complainant first had 

knowledge of the alleged violation, 

describes generally the action or 

practice complained of, and is signed by 

the complainant. 

(2) Freely permitting a complainant to 

add information to the complaint to 

meet the requirements of a sufficient 

complaint. 

(3) Notifying the complainant and the 

recipient of their rights and obligations 

under the complaint procedure, 

including the right to have a 

representative at all stages of the 

complaint resolution process. 

(4) Notifying the complainant and the 

recipient (or their representatives) of 

their right to contact Treasury for 

information and assistance regarding the 

complaint resolution process. 

(d) Treasury will notify the 

complainant when the complaint falls 

outside the jurisdiction of these 

regulations, and will state the reason(s) 

why it is outside the jurisdiction of 

these regulations. 

§ 23.43 Mediation. 

(a) Treasury will promptly refer to a 

mediation agency designated by the 

Secretary of the Department of Health 

and Human Services (HHS) all sufficient 

complaints that: 

(1) Fall within the jurisdiction of the 

Act and these regulations, unless the age 

distinction complained of is clearly 

within an exception; and, 

(2) Contain all information necessary 

for further processing. 

(b) Both the complainant and the 

recipient shall participate in the 

mediation process to the extent 

necessary to reach an agreement or 

make an informed judgment that an 

agreement is not possible. 

(c) If the complainant and the 

recipient reach an agreement, the 

mediator shall prepare a written 

statement of the agreement and have the 

complainant and the recipient sign it. 

The mediator shall send a copy of the 

agreement to Treasury. Treasury will 

take no further action on the complaint 

unless the complainant or the recipient 

fails to comply with the agreement. 

(d) The mediator shall protect the 

confidentially of all information 

obtained in the course of the mediation 

process. 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)(1) The mediation will proceed for 

a maximum of 60 days after a complaint 

is filed with Treasury. Mediation ends 

if: 

(i) 60 days elapse from the time the 

complaint is filed; or 

(ii) Prior to the end of that 60-day 

period, an agreement is reached; or 

(iii) Prior to the end of that 60-day 

period, the mediator determines that an 

agreement cannot be reached. 

(2) This 60-day period may be 

extended by the mediator, with the 

concurrence of Treasury, for not more 

than 30 days if the mediator determines 

that agreement likely will be reached 

during such extended period. 

(f) The mediator shall notify Treasury 

when mediation is not successful and 

Treasury will continue processing the 

complaint. 

§ 23.44 Investigation. 

(a) Informal investigation. (1) 

Treasury will investigate complaints 

that are unresolved after mediation or 

are reopened because of a violation of a 

mediation agreement. 

(2) As part of the initial investigation, 

Treasury will use informal fact finding 

methods, including joint or separate 

discussions with the complainant and 

recipient, to establish the facts and, if 

possible, settle the complaint on terms 

that are mutually agreeable to the 

parties. Treasury may seek the 

assistance of any involved State agency. 

(3) Any settlement agreement will be 

put in writing and the parties will sign 

it. 

(4) The settlement shall not affect the 

operation of any other enforcement 

effort of Treasury, including compliance 

reviews and investigation of other 

complaints that may involve the 

recipient. 

(5) The settlement is not a finding of 

discrimination against a recipient. 

(b) Formal investigation. If Treasury 

cannot resolve the complaint through 

informal investigation, it will begin to 

develop formal findings through further 

investigation of the complaint. If the 

investigation indicates a violation of 

these regulations, Treasury will attempt 

to obtain voluntary compliance. If 

Treasury cannot obtain voluntary 

compliance, it will begin enforcement as 

described in § 23.46 

§ 23.45 Prohibition against intimidation or 

retaliation. 

A recipient may not engage in acts of 

intimidation or retaliation against any 

person who: 

(a) Attempts to assert a right protected 

by the Act or these regulations; or 

(b) Cooperates in any mediation, 

investigation, hearing, or other part of 

Treasury’s investigation, conciliation, 

and enforcement process. 


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47112 Federal Register / Vol. 82, No. 195 / Wednesday, October 11, 2017 / Rules and Regulations 

§ 23.46 Compliance procedures. 

(a) Treasury may enforce the Act and 

these regulations through: 

(1) Termination of a recipient’s 

Federal financial assistance from 

Treasury under the program or activity 

involved where the recipient has 

violated the Act or these regulations. 

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. 

(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) Referral to the Equal Employment 

Opportunity Commission, Department 

of Labor, the Department of Health and 

Human Services, or the Department of 

Education, as applicable; and 

(iii) 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 these regulations. 

(b) Treasury will limit any 

termination under paragraph (a)(1) of 

this section to the particular recipient 

and particular program or activity or 

part of such program or activity 

Treasury finds in violation of these 

regulations. Treasury will not base any 

part of a termination on a finding with 

respect to any program or activity of the 

recipient that does not receive Federal 

financial assistance from Treasury. 

(c) Treasury will take no action under 

paragraph (a) of this section until: 

(1) The Secretary has advised the 

recipient of its failure to comply with 

the Act and these regulations and has 

determined that voluntary compliance 

cannot be obtained. 

(2) Thirty days have elapsed after the 

Secretary has sent a written report of the 

circumstances and grounds of the action 

to the committees of Congress having 

legislative jurisdiction over the Federal 

program or activity involved. The 

Secretary will file a report whenever 

any action is taken under paragraph (a) 

of this section. 

(d) Treasury also may defer granting 

new Federal financial assistance to a 

recipient when a hearing under 

paragraph (a)(1) of this section is 

initiated. 

(1) New Federal financial assistance 

from Treasury includes all assistance for 

which Treasury 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 from Treasury does 

not include increases in funding as a 

result of changed computation of 

formula awards or assistance approved 

prior to the beginning of a hearing under 

paragraph (a)(1) of this section. 

(2) Treasury will not begin a deferral 

until the recipient has received a notice 

of an opportunity for a hearing under 

paragraph (a)(1) of this section. Treasury 

will not continue a deferral for more 

than 60 days unless a hearing has begun 

within that time or the time for 

beginning the hearing has been 

extended by mutual consent of the 

recipient and the Secretary. Treasury 

will not continue a deferral for more 

than 30 days after the close of the 

hearing, unless the hearing results in a 

finding against the recipient. 

(3) Treasury will limit any deferral to 

the particular recipient and particular 

program or activity or part of such 

program or activity Treasury finds in 

violation of these regulations. Treasury 

will not base any part of a deferral on 

a finding with respect to any program or 

activity of the recipient that does not, 

and would not in connection with the 

new funds, receive Federal financial 

assistance from Treasury. 

§ 23.47 Hearings, decisions, posttermination proceedings. 

Treasury procedural provisions for 

hearings, decisions, and posttermination proceedings applicable to 

Title VI of the Civil Rights Act of 1964 

and its implementing regulations within 

Title 31 of the CFR shall apply to 

Treasury enforcement of these 

regulations. 

§ 23.48 Remedial action by recipient. 

Where Treasury finds a recipient has 

discriminated on the basis of age in 

violation of the Act or this part, the 

recipient shall take any remedial action 

that Treasury may require to overcome 

the effects of the discrimination. 

§ 23.49 Alternate funds disbursal 

procedure. 

(a) When Treasury withholds funds 

from a recipient under these regulations, 

the Secretary may disburse the withheld 

funds directly to an alternate recipient, 

where appropriate: Any public or nonprofit private organization or agency, or 

State or political subdivision of the 

State. 

(b) The Secretary will require any 

alternate recipient to demonstrate: 

(1) The ability to comply with these 

regulations; and 

(2) The ability to achieve the goals of 

the Federal statute authorizing the 

Federal financial assistance. 

§ 23.50 Exhaustion of administrative 

remedies. 

(a) A complainant may file a civil 

action following the exhaustion of 

administrative remedies under the Act. 

Administrative remedies are exhausted 

if: 

(1) 180 days have elapsed since the 

complainant filed the complaint and 

Treasury has made no finding with 

regard to the complainant; or 

(2) Treasury issues any finding in 

favor of the recipient. 

(b) If Treasury fails to make a finding 

within 180 days or issues a finding in 

favor of the recipient, Treasury shall: 

(1) Promptly advise the complainant 

of this fact; and 

(2) Advise the complainant of his or 

her right to bring a civil action for 

injunctive relief; and 

(3) Inform the complainant: 

(i) That the complainant may bring a 

civil action only 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 fee, but that the 

complainant must demand these costs 

in the complaint. 

(iii) That before commencing the 

action the complainant shall give 30 

days notice by registered mail to the 

Secretary, the Secretary of HHS, the 

Attorney General of the United States, 

and the recipient. 

(iv) That the notice must state: The 

alleged violation of the Act; the relief 

requested; the court in which the 

complainant is bringing the action; and 

whether or not attorney’s fees are 

demanded in the event the complainant 

prevails; and 

(v) That the complainant may not 

bring an action 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. 

Kody H. Kinsley, 

Assistant Secretary for Management. 

[FR Doc. 2017–21905 Filed 10–10–17; 8:45 am] 

BILLING CODE 4810–25–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2017–0963] 

Drawbridge Operation Regulation; 

Sacramento River, Sacramento, CA 

AGENCY: Coast Guard, DHS. 


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