80 FR 46208 - Nondiscrimination on the Basis of Age in Programs and Activities Receiving Federal Financial Assistance From the Department of the Treasury

DEPARTMENT OF THE TREASURY

Federal Register Volume 80, Issue 149 (August 4, 2015)

This proposed 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. The Act and the related general, government-wide regulations require all agencies that extend federal financial assistance to issue agency-specific regulations implementing the Act. Treasury recipients have been subject to the Act and the government-wide regulations since their effective date in 1979. Accordingly, today's proposed rule does not substantially change Treasury recipients' existing duty to refrain from discrimination on the basis of age. This proposal fulfills the obligation on Treasury to issue agency-specific rules under the Act, clarifies the responsibilities of Treasury recipients under the Act, and describes the Treasury investigation, conciliation, and enforcement procedures to ensure compliance.

[Federal Register Volume 80, Number 149 (Tuesday, August 4, 2015)]
[Proposed Rules]
[Pages 46208-46214]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-19096]


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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: Proposed rule.

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SUMMARY: This proposed 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.
    The Act and the related general, government-wide regulations 
require all agencies that extend federal financial assistance to issue 
agency-specific regulations implementing the Act. Treasury recipients 
have been subject to the Act and the government-wide regulations since 
their effective date in 1979. Accordingly, today's proposed rule does 
not substantially change Treasury recipients' existing duty to refrain 
from discrimination on the basis of age. This proposal fulfills the 
obligation on Treasury to issue agency-specific rules under the Act, 
clarifies the responsibilities of Treasury recipients under the Act, 
and describes the Treasury investigation, conciliation, and enforcement 
procedures to ensure compliance.

DATES: Written comments must be received on or before October 5, 2015.

ADDRESSES: Interested persons are invited to submit comments regarding 
this notice of proposed rulemaking according to the instructions below. 
All submissions must refer to the document title. The Department 
encourages the early submission of comments. Electronic Submission of 
Comments: Interested persons may submit comments electronically through 
the Federal eRulemaking Portal at http://www.regulations.gov. 
Electronic submission of comments allows the commenter maximum time to 
prepare and submit a comment, ensures timely receipt, and assists the 
Department in making comments available to the public. Comments 
submitted electronically through the http://www.regulations.gov Web 
site can be viewed by other commenters and interested members of the 
public. Commenters should follow the instructions provided on that site 
to submit comments electronically.
    Mail: Send comments to Mariam G. Harvey, Director, Office of Civil 
Rights and Diversity, 1500 Pennsylvania Avenue NW., Washington, DC 
20220.
    Note: To receive consideration, comments must be submitted through 
one of the methods specified above.
    Public Inspection of Public Comments: All properly submitted 
comments will be available for inspection and downloading at http://www.regulations.gov.

[[Page 46209]]

    Additional Instructions: In general comments received, including 
attachments and other supporting materials, are part of the public 
record and are available to the public. Do not submit any information 
in your comment or supporting materials that you consider confidential 
or inappropriate for public disclosure.

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 Information

    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.

II. Overview of Proposed Rule

    This proposed 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 proposed 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 proposed 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. The proposed 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. The following 
discussion focuses on the sections of today's proposed rule that differ 
from the government-wide regulations. As explained below, these 
differences are meant to clarify provisions, and mirror other federal 
agency-specific regulations implementing the Act.

Subpart A--General

    The four sections in Subpart A provide the proposed rule's purpose, 
application, and definitions, and are consistent with the government-
wide regulations.
    The definitions in Sec.  23.4 are substantively identical to 
definitions in the government-wide regulations (45 CFR 90.4), HHS 
agency-specific regulations (45 CFR 91.4), and ED regulations (34 CFR 
110.3).

Subpart B--Standards for Determining Age Discrimination

    Subpart B is virtually identical to the corresponding sections of 
the government-wide regulations at 45 CFR part 90. Some of the 
provisions have been reordered for greater clarity and coherence.
    Section 23.11 follows the government-wide regulations in laying out 
the general and specific rules prohibiting age discrimination in 
programs or activities receiving federal financial assistance from 
Treasury.
    Like the government-wide rule, the proposal states that the list of 
prohibited forms of age discrimination in Sec.  23.11(b) is not 
exhaustive and, consequently, does not imply that other forms of age 
discrimination are permitted.
    Sections 23.12 and 23.13 follow the government-wide regulations 
(see 45 CFR 90.13 and 90.14), in defining the terms ``normal 
operation'' and ``statutory objective'' and delineating the ``normal 
operation'' and ``statutory objective'' exceptions to the prohibitions 
against age discrimination that are specified in the Act, 42 U.S.C. 
6103.
    Section 23.13 sets out the four-prong test, provided in the 
government-wide regulations (see 45 CFR 90.14), for determining when 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'' and thus does not violate the Act.
    In the proposed rule, provisions concerning affirmative action and 
special benefits to children and elderly are in subpart B at Sec. Sec.  
23.16 and 23.17; in the government-wide regulations, the analogous 
provisions are part of subpart D (Investigation, Conciliation, and 
Enforcement Procedures) at 45 CFR 90.49. The HHS agency-specific 
regulations also moved these provisions to Subpart B (see 45 CFR 91.16 
and 91.17), and Treasury believes this reordering aids comprehension.
    Section 23.18 of the proposed rule provides that age distinctions 
in Treasury regulations are entitled to a presumption of validity. For 
example, the provision in Internal Revenue Service Publication 1101, 
which limits participation in the Tax Counseling for the Elderly 
Program to individuals who are 60 years of age or older, is presumed 
valid. This presumption of validity is

[[Page 46210]]

consistent with the ``statutory objective'' exception in the Act. 
Section 163 of the Revenue Act of 1978, Public Law 95-600, 92 Stat. 
2810, November 6, 1978, authorized the Tax Counseling for the Elderly 
Program. Analogous provisions are in the HHS and ED agency-specific 
regulations (45 CFR 91.18; 34 CFR 110.17.)

Subpart C--Duties of Treasury Recipients

    Subpart C is consistent with the government-wide regulations at 45 
CFR part 90. As described below, language differences between this 
Subpart of the proposed rule and the government-wide regulations are 
meant to clarify the duties of Treasury recipients.
    The proposed rule fosters awareness of the Act's provisions, by 
requiring that recipients provide notice concerning obligations and 
rights under the Act to other recipients and to beneficiaries (Sec.  
23.32) and that recipients complete a written assurance of compliance 
(Sec.  23.33). The notice requirements in Sec.  23.32 are modeled after 
the HHS provision in 45 CFR 91.32 and the ED provisions in 34 CFR 
110.21 and 110.25(b). The Sec.  23.33 requirement for assurances of 
compliance is similar to the HHS rule at 45 CFR 91.33(a) and the ED 
rule at 34 CFR 110.23(a).
    Section 23.33 of this proposed rule provides that OCRD may require 
a recipient employing the equivalent of 15 or more employees to 
complete a written self-evaluation as part of a compliance review or 
complaint investigation. The government-wide regulations at 45 CFR 
90.43 contain the requirement that all recipients with the equivalent 
of 15 or more full-time employees must complete a written self-
evaluation of their compliance under the Act. However, the Office of 
Management and Budget (OMB) subsequently disapproved of this across-
the-board self-evaluation requirement as excessively burdensome and 
inconsistent with the Federal Reports Act of 1942, the precursor of the 
Paperwork Reduction Act, as amended (44 U.S.C. 3501-3521). 
Correspondingly, HHS and other federal agencies have rejected imposing 
self-evaluation requirements on all recipients and instead state in 
their agency-specific regulations that such evaluations will only be 
required as part of a compliance review or complaint investigation. See 
34 CFR 110.24; 45 CFR 91.33. The courts have upheld OMB and HHS 
determinations to impose self-evaluation requirements only when there 
is an ongoing compliance review or complaint inspection. See, e.g., 
Action Alliance of Senior Citizens of Greater Philadelphia v. Sullivan, 
930 F.2d 77 (D.C. Cir.), cert. denied, 502 U.S. 938 (1991). 
Accordingly, the Treasury proposal abides by the OMB determination and 
closely follows the age discrimination regulations of the other federal 
agencies.
    Section 23.34 lists recordkeeping, reporting, and access to records 
requirements under the Act. The government-wide regulations already 
require recipients to maintain records, provide information, and afford 
access to their records to agencies for the purposes of determining 
whether the recipients are complying with the Act. See 45 CFR 90.42(a). 
The government-wide regulations also mandate that agencies include in 
their regulations implementing the Act the requirements that recipients 
provide information and access to records to the extent the agencies 
find such information and records necessary to determine compliance 
with the Act and regulations. See id. Proposed Sec.  23.34 follows the 
format of the analogous HHS provision in 45 CFR 91.34.

Subpart D--Investigation, Conciliation, and Enforcement Procedures

    In accordance with the government-wide regulations, subpart D 
describes procedures for compliance reviews and federal-level complaint 
processing, and outlines the role of mediation in resolving complaints. 
This subpart closely follows the HHS and ED age regulations, adopting 
minor stylistic and organizational changes that Treasury believes will 
improve clarity.
    Section 23.44 incorporates the HHS agency-specific regulation 
published at 45 CFR 91.44(a)(4). This section provides that settlements 
during the agency investigation process will not affect the operation 
of any other enforcement effort by the agency, such as compliance 
reviews and investigations of other complaints, including those against 
the same recipient.
    Section 2347 provides that the procedural regulations applicable to 
hearings, decisions, and post-determination proceedings under Title VI 
of the Civil Rights Act of 1964, as amended, when published, will apply 
to OCRD's enforcement of the Act and this part.
    Section 23.49 of the proposed rule describes procedures for 
disbursal of funds to an alternate recipient if funds are withheld from 
the original recipient because of violations of these rules. Section 
23.49 is not intended to replace established grant-awarding procedures. 
The requirements listed in Sec.  23.49(b) are in addition to any 
requirements contained in other applicable Federal laws or regulations.

III. Regulatory Procedures

Executive Order 12866

    This proposed 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 proposed rule would not have a 
significant economic impact on a substantial number of small entities. 
The proposed rule, if promulgated, 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 proposed rule does not 
substantively change existing obligations on recipients, but merely 
clarifies such duties, the Department certifies that the proposed rule 
will not have a significant economic impact on a substantial number of 
small entities. Consequently, a regulatory flexibility analysis is not 
required.

List of Subjects in 31 CFR Part 23

    Aged, Discrimination against aged.

Brodi Fontenot,
Assistant Secretary for Management.

    For the reasons stated in the preamble, the Department of the 
Treasury proposes to add part 23 to subtitle A of title 31 of the CFR 
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 do these regulations apply?
23.4 Definitions of terms used in these regulations.

[[Page 46211]]

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 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


Sec.  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.


Sec.  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.


Sec.  23.3  To what programs do these regulations apply?

    (a) These regulations apply any program or activity receiving 
federal financial assistance from Treasury.
    (b) These regulations 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, except for any program or activity receiving federal 
financial assistance for public service employment under the 
Comprehensive Employment and Training Act (CETA), 29 U.S.C. 801 et seq.


Sec.  23.4   Definition of terms used in these regulations.

    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.
    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 recipient extends or passes on federal

[[Page 46212]]

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


Sec.  23.11  Rule against age discrimination.

    The rules stated in this section are limited by the exceptions 
contained in Sec. Sec.  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) The specific forms of age discrimination listed in paragraph 
(b) of this section do not necessarily constitute a complete list.


Sec.  23.12  Definitions of ``normal operation'' and ``statutory 
objective.''

    For purposes of Sec. Sec.  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.


Sec.  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 
Sec.  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.


Sec.  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 
Sec.  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.


Sec.  23.15  Burden of proof.

    The burden of proving that an age distinction or other action falls 
within the exceptions outlined in Sec. Sec.  23.13 and 23.14 is on the 
recipient of federal financial assistance.


Sec.  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.


Sec.  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 Sec.  
23.13.


Sec.  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 Sec.  23.13.

Subpart C--Duties of Treasury Recipients


Sec.  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.


Sec.  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.


Sec.  23.33  Assurance of compliance and recipient assessment of age 
distinctions.

    (a) 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 Sec.  23.41 or a complaint investigation under 
Sec.  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.

[[Page 46213]]

Sec.  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


Sec.  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 pre-award 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 Sec.  
23.46.


Sec.  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.


Sec.  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.


Sec.  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 Sec.  
23.46


Sec.  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.

[[Page 46214]]

Sec.  23.46  Compliance procedure.

    (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) 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 Sec.  23.46(a)(1) 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.


Sec.  23.47  Hearings, decisions, post-termination proceedings.

    Treasury procedural provisions for hearings, decisions, and post-
termination proceedings applicable to Title VI of the Civil Rights Act 
of 1964 (if and when such procedural regulations become published) 
shall apply to Treasury enforcement of these regulations. Such 
regulations will be published within title 31 of the Code of Federal 
Regulations.


Sec.  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.


Sec.  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: Any public or non-profit 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.


Sec.  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.

[FR Doc. 2015-19096 Filed 8-3-15; 8:45 am]
BILLING CODE 4810-25-P