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NONDISCRIMINATION IN FEDERALLY ASSISTED AND CONDUCTED PROGRAMS

DAO 201-7: NONDISCRIMINATION IN FEDERALLY ASSISTED AND CONDUCTED PROGRAMS
Number: DAO 201-7
Effective Date: 2009-06-10

SECTION 1. PURPOSE.

.01 This Order provides guidance on the policies and procedures for enforcing nondiscrimination laws as they pertain to programs and activities receiving financial assistance from the Department of Commerce (the Department) and/or that are conducted by the Department.

.02 This revision is a general rewrite and update of the entire Order. It also reflects a title change.

SECTION 2. PROGRAMS TO WHICH ORDER APPLIES.

.01 Federally Assisted Programs and Activities. This order applies to each program or activity receiving Federal financial assistance from the Department.

.02 Federally Conducted Programs. With respect to individuals with disabilities, this Order applies to programs or activities conducted by the Department, except as limited by Department regulations at Title 15, Code of Federal Regulations (CFR) § 8c.2.

.03 This Order does not apply to employment or application for employment with the Department of Commerce. The policies and procedures for processing discrimination complaints for employees and applicants are set forth in Department Administrative Order (DAO) 215-9, “Filing Discrimination Complaints.”

SECTION 3. AUTHORITIES.

.01 Recipients of Federal financial assistance and other parties must comply with the following laws and regulations:

a. Department of Commerce regulations, 15 CFR, Parts 8; 8a; 8b; 8c and Part 20;

b. Economic Development Administration regulations, 13 CFR § 302.20;

c. Title VI of the Civil Rights Act of 1964, title 42, United States Code (U.S.C.) §§ 2000d - 2000d-7;

d. Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794;

e. The Age Discrimination Act of 1975, 42 U.S.C. § 6101, et seq;

f. Title IX of the Education Amendments Act, 20 U.S.C. § 1681, et seq;

g. The Public Works and Economic Development Act, as amended, 42 U.S.C. § 3123; and

h. The Public Works Employment Act of 1976, 42 U.S.C. § 6709.

SECTION 4. DEFINITIONS.

.01 Department means the Department of Commerce, and includes each and all of its bureaus and operating units.

.02 Secretary means the Secretary of Commerce.

.03 Federal financial assistance includes:

a. Grants, loans, or agreements for participation in loans, of Federal funds;

b. The grant or donation of Federal property or interests in property;

c. The sale or lease of, or the permission to use (on other than a casual or transient basis), Federal property or any interest in such property or in property in which the Federal Government has an interest, without consideration, or at a nominal consideration, or at a consideration which is reduced, for the purpose of assisting the recipient, or in recognition of the public interest to be served by such sale or lease to or use by the recipient;

d. Waiver of charges which would normally be made for the furnishing of Government services;

e. The detail of Federal personnel;

f. Technical assistance; and

g. Any Federal agreement, arrangement, contract, or other instrument which has as one of its purposes the provision of assistance.

.04 Program or activity means all of the operations of any entity described in subparagraphs a through f of this subsection, any part of which is extended Federal financial assistance:

a. A department, agency, special purpose district, or other instrumentality of a State or of a local government; or

b. 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;

c. A college, university, or other postsecondary institution, or a public system of higher education; or

d. A local educational agency (as defined in 20 U.S.C. § 7801), system of vocational education, or other school system;

e. An entire corporation, partnership, or other private organization, or an entire sole proprietorship:

1. If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or

2. Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or

3. 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

f. Any other entity which is established by two or more of the entities described in paragraphs a., b., or c. of this subsection.

.05 Recipient means any governmental, public or private agency, institution, organization, or other entity, or any individual, who or which is an applicant for Federal financial assistance, or to whom Federal financial assistance is extended directly or through another recipient. Recipient also includes a sub-grantee, an entity which leases or operates a facility for or on behalf of a recipient, and any successors, assignees, or transferees of any kind of the recipient, but does not include any person who is an ultimate beneficiary.

.06 Other party means any governmental, public or private agency, institution, organization, or other entity, or any individual that, like a recipient, is not to engage in discriminatory acts with respect to persons covered by this Order, because of direct or substantial participation in any program, for example, as a contractor, subcontractor, provider of employment, or user of facilities or services provided under any program.

.07 Responsible Department Officials with respect to any program receiving Federal financial assistance means the Secretary or other official of the Department who by law or by delegation has the principal authority within the Department for the administration of a law extending Federal financial assistance. It also means any officials designated by due delegation of authority to act in such capacity with regard to any program under this Order.

SECTION 5. DELEGATION OF AUTHORITY.

.01 The Secretarial Officers and the heads of operating units are designated and authorized to act as Responsible Department Officials under this Order with respect to programs which receive financial assistance or require an application to receive financial assistance under such laws.

.02 The aforesaid delegations of authority shall not include the Secretary’s authority to approve actions as specified in 15 CFR §§ 8.11(c)(3) and 8.13(e).

.03 The Secretarial Officers and the heads of operating units may redelegate the authority delegated to them under subsection .01 except:

a. 15 CFR § 8.5(a): specifying the form and contents of the nondiscrimination clause for each program;

b. 15 CFR § 8.10(b) (2): deciding that the results of an investigation do not warrant further action to effect compliance;

c. 15 CFR § 8.11(c): advising an applicant or a recipient of its failure to comply with the regulations, including the nondiscrimination clause, and determining that compliance cannot be secured by voluntary means before commencing an administrative compliance proceeding under 15 C.F.R, § 8.12;

d. 15 CFR § 8.11(d): determining that compliance by an applicant, recipient, contractor or other party cannot be secured by voluntary means and initiating action to effect compliance by other means authorized by law;

e. 15 CFR § 8.12(b): presiding at an administrative compliance hearing or designating a hearing officer to preside at such hearing;

f. 15 CFR § 8.12(e): as delegated by the Secretary, providing for the conduct of consolidated or joint administrative compliance hearings by agreement with other departments and agencies where applicable;

g. 15 C.F.R § 8.13: making initial and final decisions on the record in administrative compliance hearings, submitting orders to the Secretary for approval, and otherwise being satisfied with the compliance of respondents thereunder in such administrative compliance proceeding cases; and

h. 15 CFR § 8.15(b): determining the contents of and issuing forms and detailed instructions and procedures to carry out the regulations for the programs for which he or she is responsible.

.04 The Chief Financial Officer and Assistant Secretary for Administration (CFO/ASA), by Department Organization Order 10-5, is authorized to carry out the Secretary's responsibilities for fulfilling the objectives of and effecting compliance throughout the Department with respect to Federal nondiscrimination laws. The CFO/ASA is also authorized to act as Grants Officer for the Department, and to exercise signature authority to award grants and cooperative agreements in consideration of recommendations made by Department program officials.

.05 The Director, Office of Civil Rights, by Department Organization Order 20-10, is authorized, subject to the limitations on redelegation set forth in subsection 5.03, to carry out the CFO/ASA’s responsibilities with respect to ensuring compliance with nondiscrimination laws in programs of Federal financial assistance and the applicable Department regulations.

SECTION 6. ASSIGNMENT OF RESPONSIBILITIES.

.01 The Office of Civil Rights, on behalf of the CFO/ASA, shall:

a. Coordinate the civil rights activities of the Secretarial Officers and the primary operating units of the Department;

b. With the Office of General Counsel, review and make recommendations to the CFO/ASA concerning the approval of the form and content of nondiscrimination clauses, instructions, procedures, interpretations and other materials of general applicability proposed for use or issuance by a Secretarial Officer or by the head of an operating unit to implement the regulations;

c. With the Office of General Counsel, Secretarial Officers and heads of operating units, develop compliance systems and evaluate the operating units’ oversight and enforcement of the laws pertaining to nondiscrimination in programs of Federal financial assistance and the applicable regulations, including compliance reports, reviews and investigations, processing of complaints, review and approval of State plans where applicable, and the methods utilized to attempt secure compliance by voluntary means;

d. Represent the Department in the development of Government-wide systems required to coordinate and administer nondiscrimination laws pertaining to programs of Federal financial assistance and the respective department and agency regulations issued thereunder; assign responsibilities, with their consent, to officials of other departments or agencies of the Government in connection with accomplishing the purposes of said laws and regulations; and act otherwise to achieve effective coordination and maximum uniformity within the Department and within the Executive Branch.

e. Prepare reports with respect to Federal laws pertaining to nondiscrimination in programs of Federal financial assistance, including but not limited to the annual Executive Order 12250 Report required by the Department of Justice; and

f. Serve as the advisor to the CFO/ASA on matters pertaining to civil rights and equal opportunity.

.02 The Secretarial Officer or the head of each primary operating unit, with respect to programs for which he or she is responsible shall:

a. Prepare and issue material relating to the programs (e.g., statements of assurance, nondiscrimination clauses, other forms and instructions and compliance review procedures);

b. Provide applicants, recipients, and other parties with copies of the regulations and appropriate forms and instructions, including statements of assurance, compliance reports, etc.;

c. Develop methods for processing assurances, evaluating statements of compliance, and conducting compliance reviews in order to determine effectiveness in carrying out the purpose of the applicable laws and regulations;

d. Develop methods of obtaining compliance by use of voluntary means for instances where noncompliance is indicated or threatened;

e. Develop methods to inform applicants, recipients, other parties, beneficiaries, program participants and other interested parties of the laws and the regulations set forth in Section 3, and of their rights and responsibilities pursuant thereto;

f. Develop methods to inform staff of their responsibilities under the regulations and this Order, and to see that they are fulfilling the duties assigned to them;

g. Designate an official within his or her organizational unit to exercise general oversight for the effective implementation of the regulations, and to coordinate the activities of the organizational unit with the Office of Civil Rights and other Departmental offices, as applicable, and;

h. Make determinations, arrange for administrative compliance proceedings, and otherwise act to fulfill the responsibilities set forth in the regulations, or delegated in this Order, or as may be assigned by the CFO/ASA.

SECTION 7. COMPLAINT PROCEDURES.

.01 Filing of complaints. Allegations of discrimination in violation of any law or regulation set forth in Section 3 may be filed with the Director of the Office of Civil Rights (OCR) or with the operating unit funding the program or activity under which the complaint arose. Complaints filed with the operating unit will be transmitted to the OCR for initial processing. Complaints must be filed within 180 calendar days of the date of the alleged discrimination. The OCR may extend the time for filing if the complainant or complainant’s representative is able to show good cause why the time limit should be extended.

.02 Rejection of Complaints. The OCR will acknowledge receipt of the complaint in writing. If the complaint is untimely filed or the subject matter is not within the purview of this Order, the OCR will notify the complainant or representative in writing of the reason(s) for the rejection. The OCR will notify the affected operating unit that the complaint has been closed for procedural reasons.

.03 Referral to Another Agency. If the Department does not provide Federal financial assistance to the program or activity identified in the complaint, or if responsibility for the subject matter of the complaint rests with another agency, the OCR will determine which agency is most likely to have primary jurisdiction over the complaint and will refer the complaint to that agency. If the OCR refers a complaint to another agency, it will notify the complainant or representative of the reason(s) for the referral and provide contact information for the agency to which the complaint has been referred. The OCR will copy the affected operating unit, if any, and the Coordination and Review Section, Civil Rights Division, U.S. Department of Justice, on all referrals.

.04 Referral to the Equal Employment Opportunity Commission. If a recipient or other party is
subject to both this Order and the Federal laws prohibiting discrimination in employment, the OCR will refer complaints of employment discrimination to the Equal Employment Opportunity Commission (EEOC) for investigation and conciliation in accordance with EEOC regulations at 29 CFR §§ 1691.1 to 1691.13. If the EEOC finds that discrimination occurred and has been unable to resolve the complaint, the Department will give due weight to the EEOC’s determination in taking corrective action as set forth in subsections 7.11 through 7.16 of this Order. Where a complaint alleges a pattern or practice of discrimination in employment, the Department may elect to process the complaint without referral.

.05 Complaints of Employment Discrimination on the Basis of Disability in Federally Conducted Programs. Allegations of employment discrimination on the basis of disability in federally conducted programs will be processed under the EEOC’s regulations at 29 CFR § 1614.104 et seq.

.06 Voluntary Resolution. The OCR will assist with the parties and the operating unit providing Federal financial assistance to facilitate voluntary resolution of complaints. Voluntary resolution efforts may continue during and after an investigation conducted under Subsection .08 of this Section.

.07 Mandatory Mediation of Age Discrimination Complaints. Complaints of age discrimination shall be referred to the Federal Mediation and Conciliation Service or another mediation service designated by the Secretary and the parties shall engage in mediation in accordance with Department of Commerce regulations at 15 CFR § 20.12. Unresolved complaints will be returned to the OCR for further processing.

.08 Investigations.

a. The OCR will make a prompt investigation whenever a complaint indicates a possible failure to comply with the regulations. Investigations shall be conducted in accordance with the Department of Justice Investigation Procedures Manual for the Investigation and Resolution of Complaints Alleging Violation of Title VI and Other Nondiscrimination Statutes and shall include, where appropriate, a review of the pertinent practices and policies of the recipient or other party, the circumstances under which the complaint arose, and other factors relevant to a determination as to whether there has been a failure to comply with this Order.

b. If an investigation pursuant to paragraph a of this subsection indicates a failure to comply with the regulations, the OCR will so inform the appropriate Responsible Department Official, as determined in accordance with Sections 5 and 6 of this Order, and the matter will be resolved by informal means whenever possible. If the Responsible Department Official determines that the matter cannot be resolved by informal means, action will be taken as set forth in subsections 7.10 through 7.15 of this Order.

c. If an investigation does not indicate a failure to comply with the regulations, the OCR will recommend to the Responsible Department Official that no further action is warranted. The final determination that no further action is warranted must be made by an official authorized by Section 5.01 to do so.

.09 Retaliation Prohibited.

a. No recipient or other party subject to this Order shall intimidate, threaten, coerce or discriminate against any person for the purpose of interfering with any right or privilege secured by this Order and the authorities set forth in Section 3 because a person has made a complaint, testified, assisted or participated in any manner in any enforcement activity under this Order.

b. The identity of complainants shall be kept confidential except to the extent necessary to carry out the purposes of this Order, including any compliance and enforcement activity.

.10 Compliance Reviews and Other Operating Unit Actions. An operating unit may initiate a compliance review, investigation, or any other action permitted by the regulations and statutes set forth in Section 3 without regard to whether a complaint has been filed under subsection 7.01.

.11 Corrective Actions.

a. Findings of Noncompliance as the Result of a Complaint Filed with the OCR. If the OCR’s investigation indicates that a recipient or other party is not in compliance with the regulations and efforts to obtain voluntary compliance are unsuccessful, the OCR may recommend to the appropriate Responsible Department Official that the operating unit commence proceedings to suspend, terminate, or refuse to grant assistance as provided in subsections 7.12 through 7.16.

b. Findings of Noncompliance as the Result of Compliance Reviews or Other Actions by the Provider of Federal Financial Assistance. If a bureau or operating unit providing Federal financial assistance determines as the result of a compliance review or other action that a recipient or other party is not in compliance with this Order and cannot obtain voluntary compliance, it may commence proceedings to suspend, terminate, or refuse to grant assistance as provided in subsections 7.12 through 7.16.

c. Other Compliance Procedures. If the bureau or operating unit providing Federal financial assistance determines that a recipient or other party is not in compliance with the regulations and cannot obtain voluntary compliance, it may recommend that the Department commence proceedings to suspend, terminate, or refuse to grant assistance by other means authorized by law, including referral to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States or to bring any applicable proceeding under State or local law.

.12 Hearings.

a. The appropriate Responsible Department Official shall notify the recipient or other party by registered mail or certified mail, return receipt requested, of the action proposed to be taken and the matters of fact and law upon which the action is proposed, including the provision(s) upon which the finding of noncompliance is based;

b. The date for hearing shall not be set less than twenty (20) days after issuance of the notice and shall state the date, time, and place for the hearing. The date, time, and place for the hearing may be changed for cause;

c. If the hearing is the result of a complaint, the complainant shall be notified of the date, time, and location of the hearing.

d. A recipient or other party may waive a hearing and submit written information and argument for the record.

e. A recipient or other party which fails to request a hearing or appear for a hearing will be deemed to have waived the right to a hearing and to have consented to issuance of a decision on the written record.

f. Hearings shall be conducted by a Department official designated by an appropriate Responsible Department Official or, in the discretion of the Responsible Department Official, by a hearing officer.

g. The recipient or other party and the Department have the right to be represented by counsel.

h. Hearings shall be conducted in accordance with Sections 5 to 8 of the Administrative Procedure Act (5 U.S.C. §§ 554-557).

i. Technical rules of evidence shall not apply to hearings conducted pursuant to this Order, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary by the officer conducting the hearing. The hearing officer may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record. All decisions shall be based upon the hearing record.

j. Consolidated or joint hearings may be held in cases in which the assertions of noncompliance are based on same or related facts, or in which multiple complaints are filed by a complainant against a recipient or other party. In cases in which the Department has coordinated with one or more other Federal agencies to obtain compliance, cases may be consolidated or joined for hearing upon agreement between the agencies, provided that the procedures of the other agency are not inconsistent with this Order and the applicable Department of Commerce regulations.

.13 Issuance of Decisions

a. The hearing officer, if other than a Responsible Department Official, shall either make an initial decision, if authorized to do so, or shall certify the record, including recommended findings and a proposed decision for the Responsible Department Official to make a final decision. Copies of the initial decision or certification shall be mailed to the recipient or other party.

b. Where the initial decision is made by a hearing officer, the recipient or other party may, within 30 days of the mailing of the initial decision, file with the Responsible Department Official its exceptions to the initial decision and its reasons therefor.

c. Within 45 days after the mailing of the initial decision, the Responsible Department Official may, on his or her own motion, notify the recipient or other party that he or she will review the initial decision. The recipient or other party shall have a reasonable opportunity to file briefs or other statements in support of its contentions.

d. Upon the filing of exceptions or a notice of review, the Responsible Department Official will review the initial decision and issue a final decision.

e. In the absence of exceptions or a notice of review, an initial decision will become the final decision 45 days after the mailing of the initial decision. The final decision will be issued to the recipient or other party and the complainant, if any.

f. Where a hearing has been waived, the Responsible Department Official shall issue a decision on the written record. The final decision will be issued to the recipient or other party and the complainant, if any.

.14 Content and Approval of Decisions.

a. Decisions shall include rulings on each finding, conclusion, and exception and shall identify the requirements of this Order and the applicable Department regulations for which the recipient or other party is found to be in noncompliance.

b. Any final decision that provides for the suspension, termination, or refusal to grant Federal financial assistance or for other sanctions permitted by the regulations and statutes set forth in Section 3 must be submitted to the Secretary for approval. The Secretary may vacate, remit, or mitigate any sanction imposed.

c. The final decision may provide for suspension, termination of, or refusal to grant or continue Federal financial assistance and may contain other orders that will effectuate the purposes of this Order. A final decision may include provisions designed to assure that no Federal financial assistance will thereafter be extended to the recipient or other party unless and until it corrects its noncompliance and satisfies the designated Responsible Department Official that it will fully comply with this part.

d. A decision to suspend, terminate, or refuse to grant Federal financial assistance shall be limited to the program or activity, or part thereof, in which the failure to comply occurred.

.15 Termination Procedures.

a. No order to suspend, terminate, or refuse to grant assistance shall become effective until:

1. a Responsible Department Official has notified the recipient or other party of its failure to comply and the Department’s determination that compliance cannot be secured by voluntary means;

2. the determination referenced in subsection 7.15a.1. is based upon an express finding on the record after opportunity for a hearing;

3. the action has been approved by the Secretary in accordance with 15 CFR § 8.13; and

4. thirty (30) days have elapsed since the Secretary filed a full report containing the circumstances and grounds for the action with the House and Senate committees having legislative jurisdiction over the program or activity.

b. Where the Department has elected to pursue compliance by other means, as set forth in subsection 7.11c., no order to suspend, terminate, or refuse to grant assistance shall become effective until:

1. a Responsible Department Official has notified the recipient or other party of its failure to comply and the Department’s determination that compliance cannot be secured by voluntary means; and

2. at least ten days have elapsed from the date the notice was mailed. During the 10-day period, the Department shall make additional efforts to persuade the recipient or other party to comply.

.16 Post-termination Proceedings.

a. Any recipient or other party adversely affected by an order issued under subsections 7.14 and 7.15 shall be restored to full eligibility if it satisfies the terms and conditions of that order for such eligibility or if it brings itself into compliance with the regulations and provides reasonable assurance that it will fully comply with the regulations.

b. Any recipient or other party adversely affected by an order entered pursuant to subsections 7.14 and 7.15 may at any time request the Responsible Department Official who made the final decision to restore its eligibility to receive Federal financial assistance. Any such request shall be supported by information showing that the recipient or other party has fully complied with the Department’s final decision or brought itself into compliance and it provides reasonable assurance that it will fully comply with the regulations. If the Responsible Department Official determines that those requirements have been satisfied, he or she shall restore such eligibility.

c. If the Responsible Department Official denies a request for reinstatement of eligibility, the recipient or other party may submit a request for a hearing in writing, specifying why it believes the denial to have been in error. It shall thereupon be given an expeditious hearing, with a decision on the record, as provided in subsection 7.12. The recipient or other party will be restored to eligibility if it proves at such a hearing that it satisfied the requirements of subparagraph b of this subsection. While proceedings under this subparagraph are pending, the sanctions imposed by the order issued under subsections 7.14 and 7.15 shall remain in effect.

.17 Judicial Review. A recipient or other party aggrieved by an action under this Order may seek judicial review to the extent permitted by the statute(s) upon which the adverse action was based.

.18 Private Rights of Action. A complainant may file a civil action against a recipient or other party to the extent permitted by the statute(s) underlying the complaint. Private civil actions based on a violation of the Age Discrimination Act may be filed in accordance with the procedures set forth in the Department of Commerce regulations at 15 CFR § 20.19.

SECTION 8. EFFECT ON OTHER ORDERS.

This Order supersedes Department Administrative Order 201-7, dated November 23, 1966.

Signed by: Director for Civil Rights

Approved by: Chief Financial Officer and Assistant Secretary for Administration

Office of Primary Interest: Office of Civil Rights

Questions and Comments

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U.S. Department of Commerce

 

Page last updated:April 7, 2010