81 FR 89852 - Regulation Regarding Nondiscrimination on the Basis of Race, Color, or National Origin in Programs or Activities Receiving Federal Financial Assistance From the Department of the Treasury

DEPARTMENT OF THE TREASURY

Federal Register Volume 81, Issue 239 (December 13, 2016)

Page Range		89852-89861
FR Document		2016-29629

This final rule provides for the enforcement of Title VI of the Civil Rights Act of 1964, as amended (``Title VI'') to the end that no person in the United States shall on the grounds of race, color, or national origin be denied participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity that receives federal financial assistance from the Department of the Treasury. The promulgation of this final regulation will provide guidance to the Department's recipients of federal financial assistance in complying with the provisions of Title VI and will also promote consistent and appropriate enforcement of Title VI by the Department's components. Through this final rule, the Department also notifies beneficiaries of its programs offering financial assistance of the protections against discrimination based on race, color, and national origin.

Federal Register, Volume 81 Issue 239 (Tuesday, December 13, 2016)

[Federal Register Volume 81, Number 239 (Tuesday, December 13, 2016)]
[Rules and Regulations]
[Pages 89852-89861]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2016-29629]

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DEPARTMENT OF THE TREASURY

31 CFR Part 22

RIN 1505-AC45

Regulation Regarding Nondiscrimination on the Basis of Race,
Color, or National Origin in Programs or Activities Receiving Federal
Financial Assistance From the Department of the Treasury

AGENCY: Department of the Treasury.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule provides for the enforcement of Title VI of
the Civil Rights Act of 1964, as amended (``Title VI'') to the end that
no person in the United States shall on the grounds of race, color, or
national origin be denied participation in, be denied the benefits of,
or be otherwise subjected to discrimination under any program or
activity that receives federal financial assistance from the Department
of the Treasury. The promulgation of this final regulation will provide
guidance to the Department's recipients of federal financial assistance
in complying with the provisions of Title VI and will also promote
consistent and appropriate enforcement of Title VI by the Department's
components. Through this final rule, the Department also notifies
beneficiaries of its programs offering financial assistance of the
protections against discrimination based on race, color, and national
origin.

DATES: Effective January 12, 2017.

FOR FURTHER INFORMATION CONTACT: Mariam G. Harvey, Director, Office of
Civil Rights and Diversity, Department of the Treasury, (202) 622-0316
(voice), by mail to Mariam G. Harvey, Director, Office of Civil Rights
and Diversity, 1500 Pennsylvania Avenue NW., Washington, DC 20220; or
facsimile (202) 622-0367.

SUPPLEMENTARY INFORMATION:

I. Purpose of the Regulatory Action

The purpose of this final rule is to provide for the enforcement of
Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d,
et seq.), as it applies to programs or activities receiving assistance
from the Department of the Treasury. Specifically, the statute states
that ``[n]o person in the United States shall, on the grounds of race,
color, or national origin be denied participation in, be denied the
benefits of, or be otherwise subjected to discrimination under any
program or activity that receives federal financial assistance.'' 42
U.S.C. 2000d. Each federal agency subject to Title VI is required to
issue regulations implementing Title VI. 28 CFR 42.403. The Department
of the Treasury is issuing Title VI regulations for the first time.
Under Treasury's Title VI implementing regulations, Treasury-funded
programs are prohibited from taking acts, including permitting actions,
that discriminate based on the statutorily protected classes. The
regulations further provide for Treasury procedures to ensure
compliance, including a hearing procedure.
Prior to this rule, the Department was requiring recipients of
financial assistance to sign assurances of compliance with Title VI.
With the issuance of this final rule, the Department will continue to
require assurance of compliance and strengthen its civil rights
compliance requirements.

II. Background

A. Treasury's July 13, 2015, Proposed Rule

On July 13, 2015, at 80 FR 39977, Treasury published its proposed
rule implementing Title VI. Each federal agency subject to Title VI is
required to issue regulations implementing Title VI. 42 U.S.C. 2000d to
2000d-7; 28 CFR 42.403. The comment period for the proposed rule ended
on September 11, 2015.

III. Public Comments and Treasury's Response

A. The Public Comments Generally

The public posted six comments to the Notice of Proposed Rulemaking
implementing Title VI. Three comments were from public interest groups.
One comment was from a city government office. Two individuals also
commented, but one of the comments was nonresponsive. All public
comments can be viewed at http://www.regulations.gov/#!docketBrowser;rpp=25;po=0;dct=PS%252BPR;D=TREAS-DO-2015-0006.
The comments can be grouped in two main subjects: Data collection
and coverage of Low Income Housing Credits (LIHTCs).

[[Page 89853]]

B. Specific Public Comments

1. Burden of Data Collection
Comment: A commenter disagreed with the collection of the ethnicity
of the taxpayers receiving tax preparation services through Volunteer
Income Tax Assistance (VITA), stating that the information will not
help prove or disprove discrimination. The commenter opined that the
best data are gained from the feedback received from bureau employees
and from the taxpayers who report having issues at a VITA site. The
commenter favors the current compliance practices (displaying a poster,
providing information about where to file a complaint, and unannounced
site visits) as a far better method for monitoring compliance with
nondiscrimination regulations.
Treasury Response: Treasury agrees that the practices in place are
useful, and they will continue under the final rule. Treasury disagrees
with this commenter's view on data collection, however, because it is
required for the appropriate enforcement of Title VI. The coordination
regulations issued by the Department of Justice (DOJ) under the
authority of Executive Order 12250 require agencies to ``provide for
the collection of data and information from applicants for and
recipients of federal assistance sufficient to permit the effective
enforcement of Title VI.'' 28 CFR 42.406(a). Collecting information
about the race and ethnicity of program beneficiaries will help the
Department ensure its programs that offer financial assistance are
providing equal opportunity to the eligible beneficiaries, regardless
of their race and national origin. The data will also allow the
Department to investigate discrimination complaints alleging a
violation of Title VI adequately.
Comment: A commenter suggests the grantees should have to
supplement local data and/or common knowledge regarding the actual
neighborhoods that exist within each program jurisdiction, to enhance
the utility of the information required to be maintained for assessing
the success of Title VI enforcement.
Treasury Response: The Department plans to issue guidelines
regarding data collection in accordance with the requirements in 28 CFR
42.406. The Department will collect data sufficient for the effective
enforcement of Title VI. The government-wide coordination regulations
state that where an agency determines that the collection of additional
data, such as demographic maps, the racial composition of affected
neighborhoods, or census data, is necessary or appropriate, the agency
shall specify, in its guidelines or in other directives, the need to
submit such data. The Department can collect such additional data only
to the extent that it is readily available or can be compiled with
reasonable effort.
Comment: A commenter recommends as a way to minimize the burden of
complying with the proposed information collection, Treasury implement
a standard form for reporting compliance to agency officials
(referencing Sec. 22.6 of the proposed rule that obligates recipients
to submit compliance reports). A standard form will also promote
consistency and appropriate enforcement of Title VI by the Department's
components.
Treasury Response: Treasury agrees that a standard form for
reporting compliance information will assist its recipients and promote
consistency across the Department's components. The Department will
issue guidance to its recipients and agency officials regarding data
collection as required by the government-wide coordination regulations,
and will consider making a data collection form part of the upcoming
guidance.
Comment: A commenter asks what is to be gleaned from the data if a
high number of participants opt not to answer the racial and ethnic
data question. The commenter wanted to know if recipients will be asked
to guess the taxpayers' ethnic backgrounds.
Treasury Response: The Department will provide guidance to its
recipients regarding data collection as required by the government-wide
coordination regulations, and in accordance with Office of Management
and Budget (OMB) guidance, including OMB Statistical Policy Directive
No. 15, as revised; and OMB Bulletin No. 00-02. Self-identification is
the preferred method of data collection about race and ethnicity. OMB
guidance states that respect for individual dignity should guide the
processes and methods for collecting data on race and ethnicity.
Respondent self-identification should be used to the greatest extent
possible, but observer identification is more practical in some data
collection systems.
Comment: A commenter asked if the Department will assume that if
the vast majority of beneficiaries receiving benefits at a site belong
to a particular ethnic background discrimination has occurred.
Treasury Response: Data showing the race and ethnicity of the
program beneficiaries are relevant to determine compliance with the
requirements of Title VI by the recipients of Treasury financial
assistance. If the Department finds during a compliance review or
investigation that a protected group in the population of the service
area is not participating in the program, the Department will look at
the entire record to determine the reason for the lack of
participation, and whether corrective actions are needed. The
Department will discuss issues of noncompliance with its recipients
with the goal of achieving voluntary compliance.
Comment: Two commenters were concerned that increasing the burden
on recipients of the VITA program will result in further reduction in
the number of volunteers. The commenters stated they oppose any changes
created by the rule that would result in additional burden to
recipients of the VITA program by requiring additional documentation,
reporting, and records retention. One commenter supports the
information collection and is in agreement that the information
collection does not subject recipients to any new substantive
obligations, and that the economic burden associated with the
collection of information will not significantly affect small
governments or entities.
Treasury Response: The Department believes that any burden created
by the requirements of the new rule, including the collection of data,
is reasonable and justified by the goal of ensuring equal opportunity
and nondiscrimination in the financial assistance programs. In the case
of the VITA program, the recipients are already collecting data from
the beneficiaries using the intake forms required by the program.
2. Inclusion of Low-Income Housing Credits in the Covered Programs
Comments: Three commenters stated that low-income housing credits
(LIHTCs) should be included in the list of programs in the Appendix.
These commenters stated that tax credits like LIHTCs provide a subsidy
to achieve a specific public benefit and are federal financial
assistance (FFA) for the purposes of Title VI. The three commenters
stressed the important role LIHTCs play in the development of
affordable housing, and stated that listing LIHTCs as FFA would protect
millions of low-income individuals from housing discrimination.
Treasury Response: We agree with commenters regarding the
importance of protecting the civil rights of individuals living in
properties developed using LIHTCs. Other federal civil rights statutes,
including the Fair Housing Act, 42 U.S.C. 3601 et seq. (FHA), prohibit
discrimination on the bases of race, color, religion, sex, national
origin, familial status, and disability, and apply

[[Page 89854]]

to LIHTC properties. * * * The FHA prohibits both intentional
discrimination and practices that have an unjustified discriminatory
effect. Treasury's commitment to ensuring that developers, owners,
operators, and managers of LIHTC properties do not discriminate,
consistent with tax regulations that require LIHTC buildings to comply
with fair-housing requirements, includes a 2000 Memorandum of
Understanding (MOU) with the Department of Justice and the Department
of Housing and Urban Development. This MOU is aimed at ensuring that
developers, owners, operators, and managers of LIHTC properties comply
with the FHA. See https://www.irs.gov/businesses/small-businesses-self-employed/exhibit-13-2. Among other provisions, the MOU requires the IRS
to notify owners of LIHTC properties facing allegations of housing
discrimination that a finding of a violation of the FHA could result in
a loss of LIHTCs. This MOU demonstrates Treasury's commitment to
ensuring that LIHTC housing providers do not discriminate in violation
of the FHA.
The comments also stated that Title VI coverage was important to
ensure that state agencies allocate housing credit dollar amounts (that
is, the eligibility to earn LIHTCs) among proposed projects consistent
with civil rights goals. These state agencies allocating housing credit
dollar amounts may also receive grants or other forms of FFA from
another federal agency, such as the Department of Housing and Urban
Development, which would result in Title VI coverage for all of the
state agency's operations. Thus, if an individual or organization
believes that a state agency is allocating housing credit dollar
amounts in a manner inconsistent with the requirements of Title VI,
that individual or organization may determine whether the state agency
is otherwise receiving FFA (which may include consulting
www.usaspending.gov) and may file a complaint with the appropriate
federal agency. Civil rights protections thereby cover LIHTC
allocations and properties receiving LIHTCs regardless of whether the
credits themselves constitute FFA as a legal matter.
While tax credits are generally not considered FFA, we recognize
that, as the commenters have pointed out, some aspects of LIHTCs
resemble programs that constitute FFA. Though we are not including
LIHTCs in the Appendix, we emphasize that the Appendix does not purport
to be exhaustive, and the absence of a program or activity from the
list does not by such absence limit the applicability of Title VI to
that program or activity.

IV. Procedural Requirements

Executive Order 12866

Executive Orders 13563 and 12866 direct agencies to assess costs
and benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility.
This rule has been designated a ``significant regulatory action''
although not economically significant, under section 3(f) of Executive
Order 12866. Accordingly, the rule has been reviewed by the Office of
Management and Budget.

Unfunded Mandates Reform Act of 1995

The Department certifies that no actions were deemed necessary
under the Unfunded Mandates Reform Act of 1995. Furthermore, these
regulations will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and they will not significantly
or uniquely affect small governments.

The Regulatory Flexibility Act

The Department, in accordance with the Regulatory Flexibility Act,
5 U.S.C. 605(b), has reviewed these Title VI regulations and by
approving, certifies that these regulations will not have a significant
economic impact on a substantial number of small entities because all
of the entities that are subject to these regulations are already
subject to Title VI, and some entities already are subject to the Title
VI regulations of other agencies.
This rule is not a ``major rule,'' nor will it have a significant
economic impact on a substantial number of small entities, in large
part because these regulations do not impose any new substantive
obligations on federal funding recipients. All recipients of federal
funding have been bound by Title VI's antidiscrimination provision
since 1964. Individual participants in the recipients' programs have
thus long had the right to be free from discrimination on the basis of
race, color, and national origin. This rule merely ensures that the
Department and its components have regulations implementing this
statute.

Executive Order 13132

These Title VI regulations will not have substantial direct effects
on the states, on the relationship between the national government and
the States, or on the distribution of power and responsibilities among
the various levels of government. These Title VI regulations do not
subject recipients of federal funding to any new substantive
obligations because all recipients of federal funding have been bound
by Title VI's antidiscrimination provision since 1964. Moreover, these
Title VI regulations are required by statute; Congress specifically
directed federal agencies to adopt implementing regulations when Title
VI was enacted. Therefore, in accordance with section 6 of Executive
Order 13132, the Department has determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. No further action is required.

Executive Order 12250

The Attorney General has reviewed and approved this rule pursuant
to Executive Order 12250.

Paperwork Reduction Act

Under the Paperwork Reduction Act (44 U.S.C. chapter 35), an agency
may not conduct or sponsor and a person is not required to respond to a
collection of information unless it displays a valid control number
issued by the Office of Management and Budget (OMB). The information
collections contained in this rule will be submitted and approved by
OMB in connection with information collections for the applicable
programs listed in appendix A to the regulations.
The information collections contained in this rule are found in
Sec. Sec. 22.5 (reporting), 22.6 (reporting and recordkeeping), 22.7
(reporting), and 22.10 (reporting).
The OMB control numbers that will be revised include the following:

------------------------------------------------------------------------
Bureau/office Program or activity OMB Control Nos.
------------------------------------------------------------------------
Departmental Offices, Office Community Development 1559-0021
of Domestic Finance, Office Financial
of Financial Institutions. Institutions (CDFI)
Fund--Financial
Component.

[[Page 89855]]

Departmental Offices, Office Community Development 1559-0021
of Domestic Finance, Office Financial
of Financial Institutions. Institutions (CDFI)
Fund--Technical
Assistance Component.
Departmental Offices, Office Bank Enterprise Award 1559-0032,
of Domestic Finance, Office Program. 1559-0005
of Financial Institutions.
Departmental Offices, Office Native American 1559-0021
of Domestic Finance, Office Community
of Financial Institutions. Development
Financial
Institutions (CDFI)
Assistance Program,
Financial Assistance
(FA) Awards.
Departmental Offices, Office Native American 1559-0021
of Domestic Finance, Office Community
of Financial Institutions. Development
Financial
Institutions (CDFI)
Assistance (NACA)
Program, Technical
Assistance Grants.
Departmental Offices, Office Community Development 1559-0043
of Domestic Finance, Office Financial
of Financial Institutions. Institutions Fund,
Capital Magnet Fund.
Departmental Offices, Office State Small Business 1505-0227
of Domestic Finance, Office Credit Initiative.
of Small Business, Community
Development, and Housing
Policy.
Internal Revenue Service...... Tax Counseling for 1545-2222
the Elderly Grant
Program.
Internal Revenue Service...... Volunteer Income Tax 1545-2222
Assistance Program.
Internal Revenue Service...... Volunteer Income Tax 1545-2222
Assistance Grant
Program.
Internal Revenue Service...... Low Income Taxpayer 1545-1648
Clinic Grant Program.
United States Mint............ U.S. Commemorative TBD
Coin Programs.
Departmental Offices, Treasury Equitable sharing 1505-0152
Executive Office for Asset program (transfer of
Forfeiture. forfeited property
to state and local
law enforcement
agencies).
Departmental Offices, Office Grants under the 1505-0250
of the Fiscal Assistant RESTORE Act's Direct
Secretary. Component and
Centers of
Excellence program
and supplemental
compliance
responsibilities for
its Comprehensive
Plan and Spill
Impact Components..
------------------------------------------------------------------------

List of Subjects in 31 CFR Part 22

Administrative practice and procedure, Claims, Disability benefits,
Government contracts, Nondiscrimination.

0
For the reasons discussed in the preamble, the Department amends 31 CFR
by adding part 22 to read as follows:

PART 22--NONDISCRIMINATION ON THE BASIS OF RACE, COLOR, OR NATIONAL
ORIGIN IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL
ASSISTANCE FROM THE DEPARTMENT OF THE TREASURY

Sec.
22.1 Purpose.
22.2 Application.
22.3 Definitions.
22.4 Discrimination prohibited.
22.5 Assurances required.
22.6 Compliance information.
22.7 Conduct of investigations.
22.8 Procedure for effecting compliance.
22.9 Hearings.
22.10 Decisions and notices.
22.11 Judicial review.
22.12 Effect on other regulations, forms, and instructions.
Appendix A to Part 22--Activities to Which This Part Applies

Authority: 42 U.S.C. 2000d-2000d-7.

Sec. 22.1 Purpose.

The purpose of this part is to effectuate the provisions of Title
VI of the Civil Rights Act of 1964 (Title VI) to the end that no person
in the United States shall, on the grounds of race, color, or national
origin, be excluded from participation in, be denied the benefits of,
or be otherwise subjected to discrimination under any program or
activity receiving federal financial assistance from the Department of
the Treasury.

Sec. 22.2 Application.

(a) This part applies to any program for which federal financial
assistance is authorized under a law administered by the Department,
including the types of federal financial assistance listed in Appendix
A to this part. It also applies to money paid, property transferred, or
other federal financial assistance extended after the effective date of
this part pursuant to an application approved before that effective
date. This part does not apply to:
(1) Any federal financial assistance by way of insurance or
guaranty contracts;
(2) Any assistance to any individual who is the ultimate
beneficiary; or
(3) Any employment practice, under any such program, of any
employer, employment agency, or labor organization, except to the
extent described in Sec. 22.4(c). The fact that a type of federal
financial assistance is not listed in Appendix A to this part shall not
mean, if Title VI is otherwise applicable, that a program is not
covered. Other types of federal financial assistance under statutes now
in force or hereinafter enacted may be added to appendix A to this
part.
(b) In any program receiving federal financial assistance in the
form, or for the acquisition, of real property or an interest in real
property, to the extent that rights to space on, over, or under any
such property are included as part of the program receiving that
assistance, the nondiscrimination requirement of this part shall extend
to any facility located wholly or in part in that space.

Sec. 22.3 Definitions.

As used in this part:
Applicant means a person who submits an application, request, or
plan required to be approved by an official of the Department of the
Treasury, or designee thereof, or by a primary recipient, as a
condition to eligibility for federal financial assistance, and
application means such an application, request, or plan.
Designated agency official means the Assistant Secretary for
Management and his or her designee.
Facility includes all or any part of structures, equipment, or
other real or personal property or interests therein, and the provision
of facilities includes the construction, expansion, renovation,
remodeling, alteration, or acquisition of facilities.
Federal financial assistance includes:
(1) Grants and loans of federal funds;
(2) The grant or donation of federal property and interests in
property;
(3) The detail of federal personnel;
(4) The sale and lease of, and the permission to use (on other than
a casual or transient basis), federal property or any interest in such
property without consideration or at a nominal consideration, or at a
consideration which is reduced for the purpose of assisting the
recipient, or in

[[Page 89856]]

recognition of the public interest to be served by such sale or lease
to the recipient; and
(5) Any federal agreement, arrangement, or other contract which has
as one of its purposes the provision of assistance.
Primary recipient means any recipient that is authorized or
required to extend federal financial assistance to another recipient.
Program or activity and program mean all of the operations of any
entity described in the following 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 to which the
assistance is extended, in the case of assistance to a State or local
government;
(2)(i) A college, university, or other postsecondary institution,
or a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which federal financial assistance is extended, in the case
of any other corporation, partnership, private organization or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities described in the preceding paragraph (1), (2), or (3) of this
definition.
Recipient may mean any State, territory, possession, the District
of Columbia, or Puerto Rico, or any political subdivision thereof, or
instrumentality thereof, any public or private agency, institution, or
organization, or other entity, or any individual, in any State,
territory, possession, the District of Columbia, or Puerto Rico, to
whom federal financial assistance is extended, directly or through
another recipient, including any successor, assignee, or transferee
thereof, but such term does not include any ultimate beneficiary.

Sec. 22.4 Discrimination prohibited.

(a) General. No person in the United States shall, on the grounds
of race, color, or national origin be excluded from participation in,
be denied the benefits of, or be otherwise subjected to discrimination
under, any program to which this part applies.
(b) Specific discriminatory actions prohibited. (1) A recipient to
which this part applies may not, directly or through contractual or
other arrangements, on the grounds of race, color, or national origin:
(i) Deny a person any service, financial aid, or other benefit
provided under the program;
(ii) Provide any service, financial aid, or other benefit to a
person which is different, or is provided in a different manner, from
that provided to others under the program;
(iii) Subject a person to segregation or separate treatment in any
matter related to his receipt of any service, financial aid, or other
benefit under the program;
(iv) Restrict a person in any way in the enjoyment of any advantage
or privilege enjoyed by others receiving any service, financial aid, or
other benefit under the program;
(v) Treat a person differently from others in determining whether
he satisfies any admission, enrollment, quota, eligibility, membership,
or other requirement or condition which persons must meet in order to
be provided any service, financial aid, or other benefit provided under
the program;
(vi) Deny a person an opportunity to participate in the program
through the provision of services or otherwise to afford him an
opportunity to do so which is different from that afforded others under
the program (including the opportunity to participate in the program as
a volunteer or as an employee, but only to the extent set forth in
paragraph (c) of this section); or
(vii) Deny a person the opportunity to participate as a member of a
planning, advisory, or similar body which is an integral part of the
program.
(2) A recipient, in determining the types of services, financial
aid, or other benefits, or facilities which will be provided under any
such program, or the class of persons to whom, or the situations in
which, such services, financial aid, other benefits, or facilities will
be provided under any such program, or the class of persons to be
afforded an opportunity to participate in any such program, may not,
directly or through contractual or other arrangements, use criteria or
methods of administration which have the effect of subjecting persons
to discrimination because of their race, color, or national origin or
have the effect of defeating or substantially impairing accomplishment
of the objectives of the program with respect to individuals of a
particular race, color, or national origin.
(3) In determining the site or location of facilities, a recipient
or applicant may not make selections with the purpose or effect of
excluding persons from, denying them the benefits of, or subjecting
them to discrimination under any program to which this regulation
applies, on the grounds of race, color, or national origin; or with the
purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of Title VI or this part.
(4) As used in this section the services, financial aid, or other
benefits provided under a program receiving federal financial
assistance include any service, financial aid, or other benefit
provided in or through a facility provided with the aid of federal
financial assistance.
(5) The enumeration of specific forms of prohibited discrimination
in this paragraph does not limit the generality of the prohibition in
paragraph (a) of this section.
(6) This part does not prohibit the consideration of race, color,
or national origin if the purpose and effect are to remove or overcome
the consequences of practices or impediments which have restricted the
availability of, or participation in, the program or activity receiving
federal financial assistance, on the grounds of race, color, or
national origin. Where prior discriminatory practice or usage tends, on
the grounds of race, color, or national origin to exclude individuals
from participation in, to deny them the benefits of, or to subject them
to discrimination under any program or activity to which this part
applies, the applicant or recipient must take affirmative action to
remove or overcome the effects of the prior discriminatory practice or
usage. Even in the absence of prior discriminatory practice or usage, a
recipient in administering a program or activity to which this part
applies, may take affirmative action to assure that no person is
excluded from participation in or denied the benefits of the program or
activity on the grounds of race, color, or national origin.
(c) Employment practices. (1) Where a primary objective of the
federal financial assistance to a program to which this part applies is
to provide employment, a recipient subject to this

[[Page 89857]]

part shall not, directly or through contractual or other arrangements,
subject a person to discrimination on the ground of race, color, or
national origin in its employment practices under such program
(including recruitment or recruitment advertising, hiring, firing,
upgrading, promotion, demotion, transfer, layoff, termination, rates of
pay or other forms of compensation or benefits, selection for training
or apprenticeship, and use of facilities). Such recipient shall take
affirmative action to insure that applicants are employed, and
employees are treated during employment, without regard to their race,
color, or national origin. The requirements applicable to construction
employment under any such program shall be those specified in or
pursuant to Part III of Executive Order 11246 or any Executive Order
which supersedes it.
(2) Where a primary objective of the federal financial assistance
is not to provide employment, but discrimination on the grounds of
race, color, or national origin in the employment practices of the
recipient or other persons subject to the regulation tends, on the
grounds of race, color, or national origin, to exclude individuals from
participation in, deny them the benefits of, or subject them to
discrimination under any program to which this regulation applies, the
provisions of paragraph (c)(1) of this section shall apply to the
employment practices of the recipient or other persons subject to the
regulation, to the extent necessary to assure equality of opportunity
to, and nondiscriminatory treatment of, beneficiaries.

Sec. 22.5 Assurances required.

(a) General. Either at the application stage or the award stage,
federal agencies must ensure that applications for federal financial
assistance or awards of federal financial assistance contain, be
accompanied by, or be covered by a specifically identified assurance
from the applicant or recipient, satisfactory to the designated agency
official, that each program or activity operated by the applicant or
recipient and to which these Title VI regulations apply will be
operated in compliance with these Title VI regulations.
(b) Duration of obligation. (1) In the case where the federal
financial assistance is to provide or is in the form of personal
property, or real property or interest therein or structures thereon,
the assurance shall obligate the recipient, or, in the case of a
subsequent transfer, the transferee, for the period during which the
property is used for a purpose for which the federal financial
assistance is extended or for another purpose involving the provision
of similar services or benefits, or for as long as the recipient
retains ownership or possession of the property, whichever is longer.
In all other cases the assurance shall obligate the recipient for the
period during which federal financial assistance is extended to the
program.
(2) In the case where federal financial assistance is provided in
the form of a transfer of real property, structures, or improvements
thereon, or interest therein, from the federal Government, the
instrument effecting or recording the transfer shall contain a covenant
running with the land assuring nondiscrimination for the period during
which the real property is used for a purpose for which the federal
financial assistance is extended or for another purpose involving the
provision of similar services or benefits. Where no transfer of
property or interest therein from the federal government is involved,
but property is acquired or improved with federal financial assistance,
the recipient shall agree to include such covenant in any subsequent
transfer of such property. When the property is obtained from the
federal government, such covenant may also include a condition coupled
with a right to be reserved by the Department to revert title to the
property in the event of a breach of the covenant where, in the
discretion of the designated agency official, such a condition and
right of reverter is appropriate to the statute under which the real
property is obtained and to the nature of the grant and the grantee. In
such event if a transferee of real property proposes to mortgage or
otherwise encumber the real property as security for financing
construction of new, or improvement of existing, facilities on such
property for the purposes for which the property was transferred, the
designated agency official may agree, upon request of the transferee
and if necessary to accomplish such financing, and upon such conditions
as the designated agency official deems appropriate, to subordinate
such right of reversion to the lien of such mortgage or other
encumbrance.
(c) Continuing federal financial assistance. Every application by a
State or a State agency for continuing federal financial assistance to
which this part applies (including the types of federal financial
assistance listed in appendix A to this part) shall as a condition to
its approval and the extension of any federal financial assistance
pursuant to the application:
(1) Contain, be accompanied by, or be covered by a statement that
the program is (or, in the case of a new program, will be) conducted in
compliance with all requirements imposed by or pursuant to this part;
and
(2) Provide, be accompanied by, or be covered by provision for such
methods of administration for the program as are found by the
designated agency official to give reasonable guarantee that the
applicant and all recipients of federal financial assistance under such
program will comply with all requirements imposed by or pursuant to
this part.
(d) Assurance from institutions. (1) In the case of any application
for federal financial assistance to an institution of higher education
(including assistance for construction, for research, for special
training projects, for student loans or for any other purpose), the
assurance required by this section shall extend to admission practices
and to all other practices relating to the treatment of students.
(2) The assurance required with respect to an institution of higher
education, hospital, or any other institution, insofar as the assurance
relates to the institution's practices with respect to admission or
other treatment of individuals as students, patients, or clients of the
institution or to the opportunity to participate in the provision of
services or other benefits to such individuals, shall be applicable to
the entire institution.
(e) Form. (1) The assurances required by paragraph (a) of this
section, which may be included as part of a document that addresses
other assurances or obligations, shall include that the applicant or
recipient will comply with all applicable federal statutes relating to
nondiscrimination. This includes but is not limited to Title VI of the
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d, et seq.
(2) The designated agency official will specify the extent to which
such assurances will be required of the applicant's or recipient's
subgrantees, contractors, subcontractors, transferees, or successors in
interest. Any such assurance shall include provisions which give the
United States a right to seek its judicial enforcement.

Sec. 22.6 Compliance information.

(a) Cooperation and assistance. The designated Agency official
shall to the fullest extent practicable seek the cooperation of
recipients in obtaining compliance with this part and shall provide
assistance and guidance to

[[Page 89858]]

recipients to help them comply voluntarily with this part.
(b) Compliance reports. Each recipient shall keep such records and
submit to the designated Agency official timely, complete, and accurate
compliance reports at such times, and in such form and containing such
information, as the designated Agency official may determine to be
necessary to enable the designated Agency official to ascertain whether
the recipient has complied or is complying with this part. In the case
in which a primary recipient extends federal financial assistance to
any other recipient, such other recipient shall also submit such
compliance reports to the primary recipient as may be necessary to
enable the primary recipient to carry out its obligations under this
part. In general recipients should have available for the designated
Agency official racial and ethnic data showing the extent to which
members of minority groups are beneficiaries of programs receiving
Federal financial assistance.
(c) Access to sources of information. Each recipient shall permit
access by the designated Agency official during normal business hours
to such of its books, records, accounts, and other sources of
information, and its facilities as may be pertinent to ascertain
compliance with this part. Where any information required of a
recipient is in the exclusive possession of any other agency,
institution, or person and this agency, institution, or person fails or
refuses to furnish this information, the recipient shall so certify in
its report and shall set forth what efforts it has made to obtain the
information.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons such information regarding the provisions of this
part and its applicability to the program for which the recipient
receives federal financial assistance, and make such information
available to them in such manner, as the designated Agency official
finds necessary to apprise such persons of the protections against
discrimination assured them by Title VI and this part.

Sec. 22.7 Conduct of investigations.

(a) Periodic compliance reviews. The designated Agency official
shall from time to time review the practices of recipients to determine
whether they are complying with this part.
(b) Complaints. Any person who believes that he or she, or any
specific class of persons, has been subjected to discrimination
prohibited by this part may by himself or herself, or by a
representative, file with the designated Agency official a written
complaint. A complaint must be filed not later than 180 days after the
date of the alleged discrimination, unless the time for filing is
extended by the designated Agency official.
(c) Investigations. The designated Agency official will make a
prompt investigation whenever a compliance review, report, complaint,
or any other information indicates a possible failure to comply with
this part. The investigation will include, where appropriate, a review
of the pertinent practices and policies of the recipient, the
circumstances under which the possible noncompliance with this part
occurred, and other factors relevant to a determination as to whether
the recipient has failed to comply with this part.
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
part, the designated Agency official will so inform the recipient and
the matter will be resolved by informal means whenever possible. If it
has been determined that the matter cannot be resolved by informal
means, action will be taken as provided for in Sec. 22.8.
(2) If an investigation does not warrant action pursuant to
paragraph (d)(1) of this section the designated Agency official will so
inform the recipient and the complainant, if any, in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or
other person shall intimidate, threaten, coerce, or discriminate
against any individual for the purpose of interfering with any right or
privilege secured by section 601 of Title VI or this part, or because
the individual has made a complaint, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing
under this part. The identity of complainants shall be kept
confidential except to the extent necessary to carry out the purposes
of this part, including the conduct of any investigation, hearing, or
judicial proceeding arising thereunder.

Sec. 22.8 Procedure for effecting compliance.

(a) General. If there appears to be a failure or threatened failure
to comply with this part, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part may be effected by the suspension or termination of or
refusal to grant or to continue federal financial assistance or by any
other means authorized by law. Such other means may include, but are
not limited to:
(1) A referral to the Department of Justice with a recommendation
that appropriate proceedings be brought to enforce any rights of the
United States under any law of the United States (including other
titles of the Civil Rights Act of 1964), or any assurance or other
contractual undertaking; and
(2) Any applicable proceeding under State or local law.
(b) Noncompliance with Sec. 22.5. If an applicant fails or refuses
to furnish an assurance required under Sec. 22.5 or otherwise fails or
refuses to comply with a requirement imposed by or pursuant to that
section, federal financial assistance may be suspended, terminated, or
refused in accordance with the procedures of paragraph (c) of this
section. The Agency shall not be required to provide assistance in such
a case during the pendency of the administrative proceedings under such
paragraph. However, subject to Sec. 22.12, the Agency shall continue
assistance during the pendency of such proceedings where such
assistance is due and payable pursuant to an application approved prior
to the effective date of this part.
(c) Termination of or refusal to grant or to continue federal
financial assistance. (1) No order suspending, terminating, or refusing
to grant or continue federal financial assistance shall become
effective until:
(i) The designated Agency official has advised the applicant or
recipient of the applicant's or recipient's failure to comply and has
determined that compliance cannot be secured by voluntary means;
(ii) There has been an express finding on the record, after
opportunity for hearing, of a failure by the applicant or recipient to
comply with a requirement imposed by or pursuant to this part;
(iii) The action has been approved by the designated Agency
official pursuant to Sec. 22.10(e); and
(iv) The expiration of 30 days after the designated Agency official
has filed with the committee of the House and the committee of the
Senate having legislative jurisdiction over the program involved, a
full written report of the circumstances and the grounds for such
action.
(2) Any action to suspend or terminate or to refuse to grant or to
continue federal financial assistance shall be limited to the
particular political entity, or part thereof, or other applicant or
recipient as to whom such a finding has been made and shall be limited
in its effect to the particular program, or part thereof, in which such
noncompliance has been so found.

[[Page 89859]]

(d) Other means authorized by law. No action to effect compliance
with Title VI by any other means authorized by law shall be taken by
the Department of the Treasury until:
(1) The designated Agency official has determined that compliance
cannot be secured by voluntary means;
(2) The recipient or other person has been notified of its failure
to comply and of the action to be taken to effect compliance; and
(3) The expiration of at least 10 days from the mailing of such
notice to the recipient or other person. During this period of at least
10 days, additional efforts shall be made to persuade the recipient or
other person to comply with the regulation and to take such corrective
action as may be appropriate.

Sec. 22.9 Hearings.

(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by Sec. 22.8(c), reasonable notice shall be given by
registered or certified mail, return receipt requested, to the affected
applicant or recipient. This notice shall advise the applicant or
recipient of the action proposed to be taken, the specific provision
under which the proposed action against it is to be taken, and the
matters of fact or law asserted as the basis for this action, and
either:
(1) Fix a date not less than 20 days after the date of such notice
within which the applicant or recipient may request of the designated
agency official that the matter be scheduled for hearing; or
(2) Advise the applicant or recipient that the matter in question
has been set for hearing at a stated place and time. The time and place
so fixed shall be reasonable and shall be subject to change for cause.
The complainant, if any, shall be advised of the time and place of the
hearing. An applicant or recipient may waive a hearing and submit
written information and argument for the record. The failure of an
applicant or recipient to request a hearing under this paragraph or to
appear at a hearing for which a date has been set shall be deemed to be
a waiver of the right to a hearing under section 602 of Title VI and
Sec. 22.8(c) and consent to the making of a decision on the basis of
such information as is available.
(b) Time and place of hearing. Hearings shall be held at the
offices of the Department of the Treasury component administering the
program, at a time fixed by the designated Agency official unless the
designated Agency official determines that the convenience of the
applicant or recipient or of the Agency requires that another place be
selected. Hearings shall be held before the designated Agency official,
or at designated Agency official's discretion, before a hearing
examiner appointed in accordance with section 3105 of title 5, United
States Code, or detailed under section 3344 of title 5, United States
Code.
(c) Right to counsel. In all proceedings under this section, the
applicant or recipient and the Agency shall have the right to be
represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision,
and any administrative review thereof shall be conducted in conformity
with sections 554 through 557 of title 5, United States Code, and in
accordance with such rules of procedure as are proper (and not
inconsistent with this section) relating to the conduct of the hearing,
giving of notices subsequent to those provided for in paragraph (a) of
this section, taking of testimony, exhibits, arguments and briefs,
requests for findings, and other related matters. Both the designated
Agency official and the applicant or recipient shall be entitled to
introduce all relevant evidence on the issues as stated in the notice
for hearing or as determined by the officer conducting the hearing at
the outset of or during the hearing.
(2) Technical rules of evidence do not apply to hearings conducted
pursuant to this part, 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
determined 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 and
written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more federal statutes, authorities, or other
means by which federal financial assistance is extended and to which
this part applies, or noncompliance with this part and the regulations
of one or more other federal departments or agencies issued under Title
VI, the designated Agency official may, by agreement with such other
departments or agencies, where applicable, provide for the conduct of
consolidated or joint hearings, and for the application to such
hearings of rules or procedures not inconsistent with this part. Final
decisions in such cases, insofar as this regulation is concerned, shall
be made in accordance with Sec. 22.10.

Sec. 22.10 Decisions and notices.

(a) Procedure on decisions by hearing examiner. If the hearing is
held by a hearing examiner, the hearing examiner shall either make an
initial decision, if so authorized, or certify the entire record
including his recommended findings and proposed decision to the
designated agency official for a final decision, and a copy of such
initial decision or certification shall be mailed to the applicant or
recipient. Where the initial decision is made by the hearing examiner
the applicant or recipient may, within 30 days after the mailing of
such notice of initial decision, file with the designated Agency
official the applicant's or recipient's exceptions to the initial
decision, with the reasons therefor. In the absence of exceptions, the
designated Agency official may, on his or her own motion, within 45
days after the initial decision, serve on the applicant or recipient a
notice that the designated Agency official will review the decision.
Upon the filing of such exceptions or of notice of review, the
designated Agency official shall review the initial decision and issue
his or her own decision thereon including the reasons therefor. In the
absence of either exceptions or a notice of review the initial decision
shall, subject to paragraph (e) of this section, constitute the final
decision of the designated Agency official.
(b) Decisions on record or review by the designated Agency
official. Whenever a record is certified to the designated Agency
official for decision or he or she reviews the decision of a hearing
examiner pursuant to paragraph (a) of this section, or whenever the
designated Agency official conducts the hearing, the applicant or
recipient shall be given reasonable opportunity to file with the
designated Agency official briefs or other written statements of its
contentions, and a written copy of the final decision of the designated
Agency official shall be sent to the applicant or recipient and to the
complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to Sec. 22.9, a decision shall be made by
the designated Agency official on the record and a written copy of such
decision shall be sent to the applicant or recipient, and to the
complainant, if any.

[[Page 89860]]

(d) Rulings required. Each decision of a hearing examiner or the
designated Agency official shall set forth his or her ruling on each
finding, conclusion, or exception presented, and shall identify the
requirement or requirements imposed by or pursuant to this part with
which it is found that the applicant or recipient has failed to comply.
(e) Approval by designated Agency official. Any final decision by
an official of the Agency, other than the designated Agency official
personally, which provides for the suspension or termination of, or the
refusal to grant or continue federal financial assistance, or the
imposition of any other sanction available under this part or Title VI,
shall promptly be transmitted to the designated Agency official
personally, who may approve such decision, may vacate it, or remit or
mitigate any sanction imposed.
(f) Content of orders. The final decision may provide for
suspension or termination of, or refusal to grant or continue federal
financial assistance, in whole or in part, to which this regulation
applies, and may contain such terms, conditions, and other provisions
as are consistent with and will effectuate the purposes of Title VI and
this part, including provisions designed to assure that no federal
financial assistance to which this regulation applies will thereafter
be extended to the applicant or recipient determined by such decision
to be in default in its performance of an assurance given by it
pursuant to this part, or to have otherwise failed to comply with this
part, unless and until it corrects its noncompliance and satisfies the
designated Agency official that it will fully comply with this part.
(g) Post termination proceedings. (1) An applicant or recipient
adversely affected by an order issued under paragraph (f) of this
section shall be restored to full eligibility to receive federal
financial assistance if it satisfies the terms and conditions of that
order for such eligibility or if it brings itself into compliance with
this part and provides reasonable assurance that it will fully comply
with this part.
(2) Any applicant or recipient adversely affected by an order
entered pursuant to paragraph (f) of this section may at any time
request the designated Agency official to restore fully its eligibility
to receive federal financial assistance. Any such request shall be
supported by information showing that the applicant or recipient has
met the requirements of paragraph (g)(1) of this section. If the
designated Agency official determines that those requirements have been
satisfied, he or she shall restore such eligibility.
(3) If the designated Agency official denies any such request, the
applicant or recipient may submit a request for a hearing in writing,
specifying why it believes such official to have been in error. It
shall thereupon be given an expeditious hearing, with a decision on the
record in accordance with rules or procedures issued by the designated
Agency official. The applicant or recipient will be restored to such
eligibility if it proves at such a hearing that it satisfied the
requirements of paragraph (g)(1) of this section. While proceedings
under this paragraph are pending, the sanctions imposed by the order
issued under paragraph (f) of this section shall remain in effect.

Sec. 22.11 Judicial review.

Action taken pursuant to section 602 of the Title VI is subject to
judicial review as provided in section 603 of the Title VI.

Sec. 22.12 Effect on other regulations, forms, and instructions.

(a) Effect on other regulations. All regulations, orders, or like
directions issued before the effective date of this part by any officer
of the Department of the Treasury which impose requirements designed to
prohibit any discrimination against individuals on the grounds of race,
color, or national origin under any program to which this part applies,
and which authorize the suspension or termination of or refusal to
grant or to continue federal financial assistance to any applicant for
a recipient of such assistance for failure to comply with such
requirements, are hereby superseded to the extent that such
discrimination is prohibited by this part, except that nothing in this
part may be considered to relieve any person of any obligation assumed
or imposed under any such superseded regulation, order, instruction, or
like direction before the effective date of this part. Nothing in this
part, however, supersedes any of the following (including future
amendments thereof):
(1) Executive Order 11246 (3 CFR, 1965 Supp., p. 167) and
regulations issued thereunder; or
(2) Any other orders, regulations, or instructions, insofar as such
orders, regulations, or instructions prohibit discrimination on the
ground of race, color, or national origin in any program or situation
to which this part is inapplicable, or prohibit discrimination on any
other ground.
(b) Forms and instructions. The designated Agency official shall
issue and promptly make available to all interested persons forms and
detailed instructions and procedures for effectuating this part as
applied to programs to which this part applies and for which the
designated Agency official is responsible.
(c) Supervision and coordination. The designated Agency official
may from time to time assign to officials of the Agency, or to
officials of other departments or agencies of the Government with the
consent of such departments or agencies, responsibilities in connection
with the effectuation of the purposes of Title VI and this part (other
than responsibility for final decision as provided in Sec. 22.10),
including the achievement of effective coordination and maximum
uniformity within the Agency and within the Executive Branch of the
Government in the application of Title VI and this part to similar
programs and in similar situations. Any action taken, determination
made or requirement imposed by an official of another department or
agency acting pursuant to an assignment of responsibility under this
paragraph shall have the same effect as though such action had been
taken by the designated Agency official of the Department.

Appendix A to Part 22--Activities to Which This Part Applies

Note: Failure to list a type of federal assistance in this
appendix A shall not mean, if Title VI is otherwise applicable, that
a program is not covered.

------------------------------------------------------------------------
Component Program or activity Authority
------------------------------------------------------------------------
Departmental Offices, Office Community Riegle Community
of Domestic Finance, Office Development Development and
of Financial Institutions. Financial Regulatory
Institutions Fund-- Improvement Act of
Financial Component. 1994, 12 U.S.C.
4701 et seq.
Departmental Offices, Office Community Riegle Community
of Domestic Finance, Office Development Development and
of Financial Institutions. Financial Regulatory
Institutions Fund-- Improvement Act of
Technical 1994, 12 U.S.C.
Assistance 4701 et seq.
Component.

[[Page 89861]]

Departmental Offices, Office Bank Enterprise Riegle Community
of Domestic Finance, Office Award Program. Development and
of Financial Institutions. Regulatory
Improvement Act of
1994 sec. 114, 12
U.S.C. 4713.
Departmental Offices, Office Native American Riegle Community
of Domestic Finance, Office Community Development Banking
of Financial Institutions. Development and Financial
Financial Institutions Act of
Institutions 1994, 12 U.S.C.
Assistance Program, 4701 et seq.
Financial
Assistance (FA)
Awards.
Departmental Offices, Office Native American Riegle Community
of Domestic Finance, Office Community Development Banking
of Financial Institutions. Development and Financial
Financial Institutions Act of
Institutions 1994, 12 U.S.C.
Assistance (NACA) 4701 et seq.
Program, Technical
Assistance Grants.
Departmental Offices, Office Community Housing and Economic
of Domestic Finance, Office Development Recovery Act of
of Financial Institutions. Financial 2008 sec. 1339, 12
Institutions Fund, U.S.C. 4569.
Capital Magnet Fund.
Departmental Offices, Office State Small Business Small Business Jobs
of Domestic Finance, Office Credit Initiative. Act of 2010, 12
of Small Business, U.S.C. 5701 et seq.
Community Development, and
Housing Policy.
Internal Revenue Service.... Tax Counseling for Revenue Act of 1978
the Elderly Grant sec. 163, Public
Program. Law 95-600, 92 Stat
2763, 2810-2811.
Internal Revenue Service.... Volunteer Income Tax Tax Reform Act of
Assistance Program. 1969, Public Law 91-
172, 83 Stat. 487.
Internal Revenue Service.... Volunteer Income Tax Consolidated
Assistance Grant Appropriations Act,
Program. Public Law 110-161,
121 Stat. 1844,
1975-76 (2007).
Internal Revenue Service.... Low Income Taxpayer Internal Revenue
Clinic Grant Service
Program. Restructuring and
Reform Act of 1998
sec. 3601, 26
U.S.C. 7526.
United States Mint.......... U.S. Commemorative Specific acts of
Coin Programs. Congress that
authorize United
States
commemorative coin
and medal programs
provide assistance.
See, e.g., the
Louis Braille
Bicentennial--Brail
le Literacy
Commemorative Coin
Act, Public Law 109-
247 (2006); the Boy
Scouts of America
Centennial
Commemorative Coin
Act, Public Law 110-
363 (2008); the
American Veterans
Disabled for Life
Commemorative Coin
Act, Public Law 110-
277 (2008); and the
National September
11 Memorial &
Museum
Commemorative Medal
Act of 2010, Public
Law 111-221 (2010).
Departmental Offices, Equitable sharing 18 U.S.C. 981(e)(2);
Treasury Executive Office program (transfer 21 U.S.C.
for Asset Forfeiture. of forfeited 881(e)(1)(A); 31
property to state U.S.C. 9703.
and local law
enforcement
agencies).
Various Treasury Bureaus and Unreimbursed detail 5 U.S.C. 3371
Offices (including the of Federal through 3376.
Internal Revenue Service). Employees through
the
Intergovernmental
Personnel Act.
Departmental Offices, Office Grants under the Resources and
of the Fiscal Assistant RESTORE Act's Ecosystems
Secretary. Direct Component Sustainability,
and Centers of Tourist
Excellence program Opportunities, and
and supplemental Revived Economies
compliance of the Gulf Coast
responsibilities States Act of 2012,
for its Public Law 112-141.
Comprehensive Plan
and Spill Impact
Components.
------------------------------------------------------------------------

Kody Kinsley,
Assistant Secretary for Management.
[FR Doc. 2016-29629 Filed 12-12-16; 8:45 am]
BILLING CODE 4810-25-P

Federal Register / Vol. 81, No. 239 / Tuesday, December 13, 2016 / Rules and Regulations 89853

B. Specific Public Comments shall specify, in its guidelines or in investigation that a protected group in
other directives, the need to submit the population of the service area is not
1. Burden of Data Collection
such data. The Department can collect participating in the program, the
Comment: A commenter disagreed such additional data only to the extent Department will look at the entire
with the collection of the ethnicity of that it is readily available or can be record to determine the reason for the
the taxpayers receiving tax preparation compiled with reasonable effort. lack of participation, and whether
services through Volunteer Income Tax Comment: A commenter recommends corrective actions are needed. The
Assistance (VITA), stating that the as a way to minimize the burden of Department will discuss issues of
information will not help prove or complying with the proposed noncompliance with its recipients with
disprove discrimination. The information collection, Treasury the goal of achieving voluntary
commenter opined that the best data are implement a standard form for reporting compliance.
gained from the feedback received from compliance to agency officials Comment: Two commenters were
bureau employees and from the (referencing § 22.6 of the proposed rule concerned that increasing the burden on
taxpayers who report having issues at a that obligates recipients to submit recipients of the VITA program will
VITA site. The commenter favors the compliance reports). A standard form result in further reduction in the
current compliance practices will also promote consistency and number of volunteers. The commenters
(displaying a poster, providing appropriate enforcement of Title VI by stated they oppose any changes created
information about where to file a the Department’s components. by the rule that would result in
complaint, and unannounced site visits) Treasury Response: Treasury agrees additional burden to recipients of the
as a far better method for monitoring that a standard form for reporting VITA program by requiring additional
compliance with nondiscrimination compliance information will assist its documentation, reporting, and records
regulations. recipients and promote consistency retention. One commenter supports the
Treasury Response: Treasury agrees across the Department’s components. information collection and is in
that the practices in place are useful, The Department will issue guidance to agreement that the information
and they will continue under the final its recipients and agency officials collection does not subject recipients to
rule. Treasury disagrees with this regarding data collection as required by any new substantive obligations, and
commenter’s view on data collection, the government-wide coordination that the economic burden associated
however, because it is required for the regulations, and will consider making a with the collection of information will
appropriate enforcement of Title VI. The data collection form part of the not significantly affect small
coordination regulations issued by the upcoming guidance. governments or entities.
Department of Justice (DOJ) under the Comment: A commenter asks what is Treasury Response: The Department
authority of Executive Order 12250 to be gleaned from the data if a high believes that any burden created by the
require agencies to ‘‘provide for the number of participants opt not to requirements of the new rule, including
collection of data and information from answer the racial and ethnic data the collection of data, is reasonable and
applicants for and recipients of federal question. The commenter wanted to justified by the goal of ensuring equal
assistance sufficient to permit the know if recipients will be asked to guess opportunity and nondiscrimination in
effective enforcement of Title VI.’’ 28 the taxpayers’ ethnic backgrounds. the financial assistance programs. In the
CFR 42.406(a). Collecting information Treasury Response: The Department case of the VITA program, the recipients
about the race and ethnicity of program will provide guidance to its recipients are already collecting data from the
beneficiaries will help the Department regarding data collection as required by beneficiaries using the intake forms
ensure its programs that offer financial the government-wide coordination required by the program.
assistance are providing equal regulations, and in accordance with
opportunity to the eligible beneficiaries, Office of Management and Budget 2. Inclusion of Low-Income Housing
regardless of their race and national (OMB) guidance, including OMB Credits in the Covered Programs
origin. The data will also allow the Statistical Policy Directive No. 15, as Comments: Three commenters stated
Department to investigate revised; and OMB Bulletin No. 00–02. that low-income housing credits
discrimination complaints alleging a Self-identification is the preferred (LIHTCs) should be included in the list
violation of Title VI adequately. method of data collection about race of programs in the Appendix. These
Comment: A commenter suggests the and ethnicity. OMB guidance states that commenters stated that tax credits like
grantees should have to supplement respect for individual dignity should LIHTCs provide a subsidy to achieve a
local data and/or common knowledge guide the processes and methods for specific public benefit and are federal
regarding the actual neighborhoods that collecting data on race and ethnicity. financial assistance (FFA) for the
exist within each program jurisdiction, Respondent self-identification should be purposes of Title VI. The three
to enhance the utility of the information used to the greatest extent possible, but commenters stressed the important role
required to be maintained for assessing observer identification is more practical LIHTCs play in the development of
the success of Title VI enforcement. in some data collection systems. affordable housing, and stated that
Treasury Response: The Department Comment: A commenter asked if the listing LIHTCs as FFA would protect
plans to issue guidelines regarding data Department will assume that if the vast millions of low-income individuals
collection in accordance with the majority of beneficiaries receiving from housing discrimination.
requirements in 28 CFR 42.406. The benefits at a site belong to a particular Treasury Response: We agree with
Department will collect data sufficient ethnic background discrimination has commenters regarding the importance of
for the effective enforcement of Title VI. occurred. protecting the civil rights of individuals
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The government-wide coordination Treasury Response: Data showing the living in properties developed using
regulations state that where an agency race and ethnicity of the program LIHTCs. Other federal civil rights
determines that the collection of beneficiaries are relevant to determine statutes, including the Fair Housing Act,
additional data, such as demographic compliance with the requirements of 42 U.S.C. 3601 et seq. (FHA), prohibit
maps, the racial composition of affected Title VI by the recipients of Treasury discrimination on the bases of race,
neighborhoods, or census data, is financial assistance. If the Department color, religion, sex, national origin,
necessary or appropriate, the agency finds during a compliance review or familial status, and disability, and apply

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89854 Federal Register / Vol. 81, No. 239 / Tuesday, December 13, 2016 / Rules and Regulations

to LIHTC properties. * * * The FHA including LIHTCs in the Appendix, we federal funding have been bound by
prohibits both intentional emphasize that the Appendix does not Title VI’s antidiscrimination provision
discrimination and practices that have purport to be exhaustive, and the since 1964. Individual participants in
an unjustified discriminatory effect. absence of a program or activity from the recipients’ programs have thus long
Treasury’s commitment to ensuring that the list does not by such absence limit had the right to be free from
developers, owners, operators, and the applicability of Title VI to that discrimination on the basis of race,
managers of LIHTC properties do not program or activity. color, and national origin. This rule
discriminate, consistent with tax merely ensures that the Department and
IV. Procedural Requirements
regulations that require LIHTC buildings its components have regulations
to comply with fair-housing Executive Order 12866 implementing this statute.
requirements, includes a 2000 Executive Orders 13563 and 12866
Memorandum of Understanding (MOU) Executive Order 13132
direct agencies to assess costs and
with the Department of Justice and the benefits of available regulatory These Title VI regulations will not
Department of Housing and Urban alternatives and, if regulation is have substantial direct effects on the
Development. This MOU is aimed at necessary, to select regulatory states, on the relationship between the
ensuring that developers, owners, approaches that maximize net benefits national government and the States, or
operators, and managers of LIHTC (including potential economic, on the distribution of power and
properties comply with the FHA. See environmental, public health and safety responsibilities among the various
https://www.irs.gov/businesses/small- effects, distributive impacts, and levels of government. These Title VI
businesses-self-employed/exhibit-13-2. equity). Executive Order 13563 regulations do not subject recipients of
Among other provisions, the MOU emphasizes the importance of federal funding to any new substantive
requires the IRS to notify owners of quantifying both costs and benefits, of obligations because all recipients of
LIHTC properties facing allegations of reducing costs, of harmonizing rules, federal funding have been bound by
housing discrimination that a finding of and of promoting flexibility. This rule Title VI’s antidiscrimination provision
a violation of the FHA could result in has been designated a ‘‘significant since 1964. Moreover, these Title VI
a loss of LIHTCs. This MOU regulatory action’’ although not regulations are required by statute;
demonstrates Treasury’s commitment to economically significant, under section Congress specifically directed federal
ensuring that LIHTC housing providers 3(f) of Executive Order 12866. agencies to adopt implementing
do not discriminate in violation of the Accordingly, the rule has been reviewed regulations when Title VI was enacted.
FHA. by the Office of Management and Therefore, in accordance with section 6
The comments also stated that Title Budget. of Executive Order 13132, the
VI coverage was important to ensure Department has determined that this
that state agencies allocate housing Unfunded Mandates Reform Act of 1995
rule does not have sufficient federalism
credit dollar amounts (that is, the The Department certifies that no implications to warrant the preparation
eligibility to earn LIHTCs) among actions were deemed necessary under of a federalism summary impact
proposed projects consistent with civil the Unfunded Mandates Reform Act of statement. No further action is required.
rights goals. These state agencies 1995. Furthermore, these regulations
allocating housing credit dollar amounts will not result in the expenditure by Executive Order 12250
may also receive grants or other forms State, local, and tribal governments, in The Attorney General has reviewed
of FFA from another federal agency, the aggregate, or by the private sector, of and approved this rule pursuant to
such as the Department of Housing and $100,000,000 or more in any one year, Executive Order 12250.
Urban Development, which would and they will not significantly or
result in Title VI coverage for all of the uniquely affect small governments. Paperwork Reduction Act
state agency’s operations. Thus, if an
individual or organization believes that The Regulatory Flexibility Act Under the Paperwork Reduction Act
a state agency is allocating housing The Department, in accordance with (44 U.S.C. chapter 35), an agency may
credit dollar amounts in a manner the Regulatory Flexibility Act, 5 U.S.C. not conduct or sponsor and a person is
inconsistent with the requirements of 605(b), has reviewed these Title VI not required to respond to a collection
Title VI, that individual or organization regulations and by approving, certifies of information unless it displays a valid
may determine whether the state agency that these regulations will not have a control number issued by the Office of
is otherwise receiving FFA (which may significant economic impact on a Management and Budget (OMB). The
include consulting substantial number of small entities information collections contained in
www.usaspending.gov) and may file a because all of the entities that are this rule will be submitted and
complaint with the appropriate federal subject to these regulations are already approved by OMB in connection with
agency. Civil rights protections thereby subject to Title VI, and some entities information collections for the
cover LIHTC allocations and properties already are subject to the Title VI applicable programs listed in appendix
receiving LIHTCs regardless of whether regulations of other agencies. A to the regulations.
the credits themselves constitute FFA as This rule is not a ‘‘major rule,’’ nor The information collections contained
a legal matter. will it have a significant economic in this rule are found in §§ 22.5
While tax credits are generally not impact on a substantial number of (reporting), 22.6 (reporting and
considered FFA, we recognize that, as small entities, in large part because recordkeeping), 22.7 (reporting), and
22.10 (reporting).
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the commenters have pointed out, some these regulations do not impose any
aspects of LIHTCs resemble programs new substantive obligations on federal The OMB control numbers that will
that constitute FFA. Though we are not funding recipients. All recipients of be revised include the following:

Bureau/office Program or activity OMB Control Nos.

Departmental Offices, Office of Domestic Finance, Office of Community Development Financial Institutions (CDFI) 1559–0021
Financial Institutions. Fund—Financial Component.

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Federal Register / Vol. 81, No. 239 / Tuesday, December 13, 2016 / Rules and Regulations 89855

Bureau/office Program or activity OMB Control Nos.

Departmental Offices, Office of Domestic Finance, Office of Community Development Financial Institutions (CDFI) 1559–0021
Financial Institutions. Fund—Technical Assistance Component.
Departmental Offices, Office of Domestic Finance, Office of Bank Enterprise Award Program ............................................ 1559–0032,
Financial Institutions. 1559–0005
Departmental Offices, Office of Domestic Finance, Office of Native American Community Development Financial Institu- 1559–0021
Financial Institutions. tions (CDFI) Assistance Program, Financial Assistance
(FA) Awards.
Departmental Offices, Office of Domestic Finance, Office of Native American Community Development Financial Institu- 1559–0021
Financial Institutions. tions (CDFI) Assistance (NACA) Program, Technical As-
sistance Grants.
Departmental Offices, Office of Domestic Finance, Office of Community Development Financial Institutions Fund, Capital 1559–0043
Financial Institutions. Magnet Fund.
Departmental Offices, Office of Domestic Finance, Office of State Small Business Credit Initiative ..................................... 1505–0227
Small Business, Community Development, and Housing
Policy.
Internal Revenue Service ........................................................ Tax Counseling for the Elderly Grant Program ...................... 1545–2222
Internal Revenue Service ........................................................ Volunteer Income Tax Assistance Program ........................... 1545–2222
Internal Revenue Service ........................................................ Volunteer Income Tax Assistance Grant Program ................. 1545–2222
Internal Revenue Service ........................................................ Low Income Taxpayer Clinic Grant Program .......................... 1545–1648
United States Mint ................................................................... U.S. Commemorative Coin Programs ..................................... TBD
Departmental Offices, Treasury Executive Office for Asset Equitable sharing program (transfer of forfeited property to 1505–0152
Forfeiture. state and local law enforcement agencies).
Departmental Offices, Office of the Fiscal Assistant Sec- Grants under the RESTORE Act’s Direct Component and 1505–0250
retary. Centers of Excellence program and supplemental compli-
ance responsibilities for its Comprehensive Plan and Spill
Impact Components..

List of Subjects in 31 CFR Part 22 from participation in, be denied the that rights to space on, over, or under
Administrative practice and benefits of, or be otherwise subjected to any such property are included as part
procedure, Claims, Disability benefits, discrimination under any program or of the program receiving that assistance,
Government contracts, activity receiving federal financial the nondiscrimination requirement of
Nondiscrimination. assistance from the Department of the this part shall extend to any facility
Treasury. located wholly or in part in that space.
■ For the reasons discussed in the
preamble, the Department amends 31 § 22.2 Application. § 22.3 Definitions.
CFR by adding part 22 to read as (a) This part applies to any program As used in this part:
follows: for which federal financial assistance is Applicant means a person who
authorized under a law administered by submits an application, request, or plan
PART 22—NONDISCRIMINATION ON the Department, including the types of required to be approved by an official of
THE BASIS OF RACE, COLOR, OR federal financial assistance listed in the Department of the Treasury, or
NATIONAL ORIGIN IN PROGRAMS OR Appendix A to this part. It also applies designee thereof, or by a primary
ACTIVITIES RECEIVING FEDERAL to money paid, property transferred, or recipient, as a condition to eligibility for
FINANCIAL ASSISTANCE FROM THE other federal financial assistance federal financial assistance, and
DEPARTMENT OF THE TREASURY extended after the effective date of this application means such an application,
Sec. part pursuant to an application request, or plan.
22.1 Purpose. approved before that effective date. This Designated agency official means the
22.2 Application. part does not apply to: Assistant Secretary for Management and
22.3 Definitions. (1) Any federal financial assistance by his or her designee.
22.4 Discrimination prohibited. way of insurance or guaranty contracts; Facility includes all or any part of
22.5 Assurances required. (2) Any assistance to any individual structures, equipment, or other real or
22.6 Compliance information. who is the ultimate beneficiary; or personal property or interests therein,
22.7 Conduct of investigations. (3) Any employment practice, under and the provision of facilities includes
22.8 Procedure for effecting compliance. any such program, of any employer,
22.9 Hearings.
the construction, expansion, renovation,
22.10 Decisions and notices.
employment agency, or labor remodeling, alteration, or acquisition of
22.11 Judicial review. organization, except to the extent facilities.
22.12 Effect on other regulations, forms, described in § 22.4(c). The fact that a Federal financial assistance includes:
and instructions. type of federal financial assistance is not (1) Grants and loans of federal funds;
Appendix A to Part 22—Activities to Which listed in Appendix A to this part shall (2) The grant or donation of federal
This Part Applies not mean, if Title VI is otherwise property and interests in property;
Authority: 42 U.S.C. 2000d–2000d–7. applicable, that a program is not (3) The detail of federal personnel;
covered. Other types of federal financial (4) The sale and lease of, and the
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§ 22.1 Purpose. assistance under statutes now in force or permission to use (on other than a
The purpose of this part is to hereinafter enacted may be added to casual or transient basis), federal
effectuate the provisions of Title VI of appendix A to this part. property or any interest in such
the Civil Rights Act of 1964 (Title VI) to (b) In any program receiving federal property without consideration or at a
the end that no person in the United financial assistance in the form, or for nominal consideration, or at a
States shall, on the grounds of race, the acquisition, of real property or an consideration which is reduced for the
color, or national origin, be excluded interest in real property, to the extent purpose of assisting the recipient, or in

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Federal Register / Vol. 81, No. 239 / Tuesday, December 13, 2016 / Rules and Regulations 89857

part shall not, directly or through during which the property is used for a federal financial assistance pursuant to
contractual or other arrangements, purpose for which the federal financial the application:
subject a person to discrimination on assistance is extended or for another (1) Contain, be accompanied by, or be
the ground of race, color, or national purpose involving the provision of covered by a statement that the program
origin in its employment practices similar services or benefits, or for as is (or, in the case of a new program, will
under such program (including long as the recipient retains ownership be) conducted in compliance with all
recruitment or recruitment advertising, or possession of the property, whichever requirements imposed by or pursuant to
hiring, firing, upgrading, promotion, is longer. In all other cases the this part; and
demotion, transfer, layoff, termination, assurance shall obligate the recipient for (2) Provide, be accompanied by, or be
rates of pay or other forms of the period during which federal covered by provision for such methods
compensation or benefits, selection for financial assistance is extended to the of administration for the program as are
training or apprenticeship, and use of program. found by the designated agency official
facilities). Such recipient shall take (2) In the case where federal financial to give reasonable guarantee that the
affirmative action to insure that assistance is provided in the form of a applicant and all recipients of federal
applicants are employed, and transfer of real property, structures, or financial assistance under such program
employees are treated during improvements thereon, or interest will comply with all requirements
employment, without regard to their therein, from the federal Government, imposed by or pursuant to this part.
race, color, or national origin. The the instrument effecting or recording the (d) Assurance from institutions. (1) In
requirements applicable to construction transfer shall contain a covenant the case of any application for federal
employment under any such program running with the land assuring financial assistance to an institution of
shall be those specified in or pursuant nondiscrimination for the period during higher education (including assistance
to Part III of Executive Order 11246 or which the real property is used for a for construction, for research, for special
any Executive Order which supersedes purpose for which the federal financial training projects, for student loans or for
it. assistance is extended or for another any other purpose), the assurance
(2) Where a primary objective of the purpose involving the provision of required by this section shall extend to
federal financial assistance is not to similar services or benefits. Where no admission practices and to all other
provide employment, but transfer of property or interest therein practices relating to the treatment of
discrimination on the grounds of race, from the federal government is students.
color, or national origin in the involved, but property is acquired or
employment practices of the recipient or (2) The assurance required with
improved with federal financial respect to an institution of higher
other persons subject to the regulation
assistance, the recipient shall agree to education, hospital, or any other
tends, on the grounds of race, color, or
include such covenant in any institution, insofar as the assurance
national origin, to exclude individuals
subsequent transfer of such property. relates to the institution’s practices with
from participation in, deny them the
When the property is obtained from the respect to admission or other treatment
benefits of, or subject them to
federal government, such covenant may of individuals as students, patients, or
discrimination under any program to
also include a condition coupled with a clients of the institution or to the
which this regulation applies, the
right to be reserved by the Department opportunity to participate in the
provisions of paragraph (c)(1) of this
to revert title to the property in the provision of services or other benefits to
section shall apply to the employment
event of a breach of the covenant where, such individuals, shall be applicable to
practices of the recipient or other
in the discretion of the designated the entire institution.
persons subject to the regulation, to the
agency official, such a condition and (e) Form. (1) The assurances required
extent necessary to assure equality of
right of reverter is appropriate to the by paragraph (a) of this section, which
opportunity to, and nondiscriminatory
statute under which the real property is may be included as part of a document
treatment of, beneficiaries.
obtained and to the nature of the grant that addresses other assurances or
§ 22.5 Assurances required. and the grantee. In such event if a obligations, shall include that the
(a) General. Either at the application transferee of real property proposes to applicant or recipient will comply with
stage or the award stage, federal mortgage or otherwise encumber the all applicable federal statutes relating to
agencies must ensure that applications real property as security for financing nondiscrimination. This includes but is
for federal financial assistance or construction of new, or improvement of not limited to Title VI of the Civil Rights
awards of federal financial assistance existing, facilities on such property for Act of 1964, as amended, 42 U.S.C.
contain, be accompanied by, or be the purposes for which the property was 2000d, et seq.
covered by a specifically identified transferred, the designated agency (2) The designated agency official will
assurance from the applicant or official may agree, upon request of the specify the extent to which such
recipient, satisfactory to the designated transferee and if necessary to assurances will be required of the
agency official, that each program or accomplish such financing, and upon applicant’s or recipient’s subgrantees,
activity operated by the applicant or such conditions as the designated contractors, subcontractors, transferees,
recipient and to which these Title VI agency official deems appropriate, to or successors in interest. Any such
regulations apply will be operated in subordinate such right of reversion to assurance shall include provisions
compliance with these Title VI the lien of such mortgage or other which give the United States a right to
regulations. encumbrance. seek its judicial enforcement.
(b) Duration of obligation. (1) In the (c) Continuing federal financial
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case where the federal financial assistance. Every application by a State § 22.6 Compliance information.
assistance is to provide or is in the form or a State agency for continuing federal (a) Cooperation and assistance. The
of personal property, or real property or financial assistance to which this part designated Agency official shall to the
interest therein or structures thereon, applies (including the types of federal fullest extent practicable seek the
the assurance shall obligate the financial assistance listed in appendix A cooperation of recipients in obtaining
recipient, or, in the case of a subsequent to this part) shall as a condition to its compliance with this part and shall
transfer, the transferee, for the period approval and the extension of any provide assistance and guidance to

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89858 Federal Register / Vol. 81, No. 239 / Tuesday, December 13, 2016 / Rules and Regulations

recipients to help them comply Agency official a written complaint. A (1) A referral to the Department of
voluntarily with this part. complaint must be filed not later than Justice with a recommendation that
(b) Compliance reports. Each recipient 180 days after the date of the alleged appropriate proceedings be brought to
shall keep such records and submit to discrimination, unless the time for filing enforce any rights of the United States
the designated Agency official timely, is extended by the designated Agency under any law of the United States
complete, and accurate compliance official. (including other titles of the Civil Rights
reports at such times, and in such form (c) Investigations. The designated Act of 1964), or any assurance or other
and containing such information, as the Agency official will make a prompt contractual undertaking; and
designated Agency official may investigation whenever a compliance (2) Any applicable proceeding under
determine to be necessary to enable the review, report, complaint, or any other State or local law.
designated Agency official to ascertain information indicates a possible failure (b) Noncompliance with § 22.5. If an
whether the recipient has complied or is to comply with this part. The applicant fails or refuses to furnish an
complying with this part. In the case in investigation will include, where assurance required under § 22.5 or
which a primary recipient extends appropriate, a review of the pertinent otherwise fails or refuses to comply
federal financial assistance to any other practices and policies of the recipient, with a requirement imposed by or
recipient, such other recipient shall also the circumstances under which the pursuant to that section, federal
submit such compliance reports to the possible noncompliance with this part financial assistance may be suspended,
primary recipient as may be necessary occurred, and other factors relevant to a terminated, or refused in accordance
to enable the primary recipient to carry determination as to whether the with the procedures of paragraph (c) of
out its obligations under this part. In recipient has failed to comply with this this section. The Agency shall not be
general recipients should have available part. required to provide assistance in such a
for the designated Agency official racial (d) Resolution of matters. (1) If an case during the pendency of the
and ethnic data showing the extent to investigation pursuant to paragraph (c) administrative proceedings under such
which members of minority groups are of this section indicates a failure to paragraph. However, subject to § 22.12,
beneficiaries of programs receiving comply with this part, the designated the Agency shall continue assistance
Federal financial assistance. Agency official will so inform the during the pendency of such
(c) Access to sources of information. recipient and the matter will be resolved proceedings where such assistance is
Each recipient shall permit access by by informal means whenever possible. If due and payable pursuant to an
the designated Agency official during it has been determined that the matter application approved prior to the
normal business hours to such of its cannot be resolved by informal means, effective date of this part.
books, records, accounts, and other action will be taken as provided for in (c) Termination of or refusal to grant
sources of information, and its facilities § 22.8. or to continue federal financial
as may be pertinent to ascertain (2) If an investigation does not
assistance. (1) No order suspending,
compliance with this part. Where any warrant action pursuant to paragraph
terminating, or refusing to grant or
information required of a recipient is in (d)(1) of this section the designated
continue federal financial assistance
the exclusive possession of any other Agency official will so inform the
shall become effective until:
agency, institution, or person and this recipient and the complainant, if any, in
(i) The designated Agency official has
agency, institution, or person fails or writing.
(e) Intimidatory or retaliatory acts advised the applicant or recipient of the
refuses to furnish this information, the
prohibited. No recipient or other person applicant’s or recipient’s failure to
recipient shall so certify in its report
shall intimidate, threaten, coerce, or comply and has determined that
and shall set forth what efforts it has
discriminate against any individual for compliance cannot be secured by
made to obtain the information.
the purpose of interfering with any right voluntary means;
(d) Information to beneficiaries and
participants. Each recipient shall make or privilege secured by section 601 of (ii) There has been an express finding
available to participants, beneficiaries, Title VI or this part, or because the on the record, after opportunity for
and other interested persons such individual has made a complaint, hearing, of a failure by the applicant or
information regarding the provisions of testified, assisted, or participated in any recipient to comply with a requirement
this part and its applicability to the manner in an investigation, proceeding, imposed by or pursuant to this part;
program for which the recipient receives or hearing under this part. The identity (iii) The action has been approved by
federal financial assistance, and make of complainants shall be kept the designated Agency official pursuant
such information available to them in confidential except to the extent to § 22.10(e); and
such manner, as the designated Agency necessary to carry out the purposes of (iv) The expiration of 30 days after the
official finds necessary to apprise such this part, including the conduct of any designated Agency official has filed
persons of the protections against investigation, hearing, or judicial with the committee of the House and
discrimination assured them by Title VI proceeding arising thereunder. the committee of the Senate having
and this part. legislative jurisdiction over the program
§ 22.8 Procedure for effecting compliance. involved, a full written report of the
§ 22.7 Conduct of investigations. (a) General. If there appears to be a circumstances and the grounds for such
(a) Periodic compliance reviews. The failure or threatened failure to comply action.
designated Agency official shall from with this part, and if the noncompliance (2) Any action to suspend or
time to time review the practices of or threatened noncompliance cannot be terminate or to refuse to grant or to
recipients to determine whether they are corrected by informal means, continue federal financial assistance
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complying with this part. compliance with this part may be shall be limited to the particular
(b) Complaints. Any person who effected by the suspension or political entity, or part thereof, or other
believes that he or she, or any specific termination of or refusal to grant or to applicant or recipient as to whom such
class of persons, has been subjected to continue federal financial assistance or a finding has been made and shall be
discrimination prohibited by this part by any other means authorized by law. limited in its effect to the particular
may by himself or herself, or by a Such other means may include, but are program, or part thereof, in which such
representative, file with the designated not limited to: noncompliance has been so found.

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(d) Other means authorized by law. the designated Agency official, or at applicable, provide for the conduct of
No action to effect compliance with designated Agency official’s discretion, consolidated or joint hearings, and for
Title VI by any other means authorized before a hearing examiner appointed in the application to such hearings of rules
by law shall be taken by the Department accordance with section 3105 of title 5, or procedures not inconsistent with this
of the Treasury until: United States Code, or detailed under part. Final decisions in such cases,
(1) The designated Agency official has section 3344 of title 5, United States insofar as this regulation is concerned,
determined that compliance cannot be Code. shall be made in accordance with
secured by voluntary means; (c) Right to counsel. In all proceedings § 22.10.
(2) The recipient or other person has under this section, the applicant or
been notified of its failure to comply recipient and the Agency shall have the § 22.10 Decisions and notices.
and of the action to be taken to effect right to be represented by counsel. (a) Procedure on decisions by hearing
compliance; and (d) Procedures, evidence, and record. examiner. If the hearing is held by a
(3) The expiration of at least 10 days (1) The hearing, decision, and any hearing examiner, the hearing examiner
from the mailing of such notice to the administrative review thereof shall be shall either make an initial decision, if
recipient or other person. During this conducted in conformity with sections so authorized, or certify the entire
period of at least 10 days, additional 554 through 557 of title 5, United States record including his recommended
efforts shall be made to persuade the Code, and in accordance with such rules findings and proposed decision to the
recipient or other person to comply with of procedure as are proper (and not designated agency official for a final
the regulation and to take such inconsistent with this section) relating decision, and a copy of such initial
corrective action as may be appropriate. to the conduct of the hearing, giving of decision or certification shall be mailed
notices subsequent to those provided for to the applicant or recipient. Where the
§ 22.9 Hearings. in paragraph (a) of this section, taking initial decision is made by the hearing
(a) Opportunity for hearing. Whenever of testimony, exhibits, arguments and examiner the applicant or recipient
an opportunity for a hearing is required briefs, requests for findings, and other may, within 30 days after the mailing of
by § 22.8(c), reasonable notice shall be related matters. Both the designated such notice of initial decision, file with
given by registered or certified mail, Agency official and the applicant or the designated Agency official the
return receipt requested, to the affected recipient shall be entitled to introduce applicant’s or recipient’s exceptions to
applicant or recipient. This notice shall all relevant evidence on the issues as the initial decision, with the reasons
advise the applicant or recipient of the stated in the notice for hearing or as therefor. In the absence of exceptions,
action proposed to be taken, the specific determined by the officer conducting the designated Agency official may, on
provision under which the proposed the hearing at the outset of or during the his or her own motion, within 45 days
action against it is to be taken, and the hearing. after the initial decision, serve on the
matters of fact or law asserted as the (2) Technical rules of evidence do not applicant or recipient a notice that the
basis for this action, and either: apply to hearings conducted pursuant to designated Agency official will review
(1) Fix a date not less than 20 days this part, but rules or principles the decision. Upon the filing of such
after the date of such notice within designed to assure production of the exceptions or of notice of review, the
which the applicant or recipient may most credible evidence available and to designated Agency official shall review
request of the designated agency official subject testimony to test by cross- the initial decision and issue his or her
that the matter be scheduled for hearing; examination shall be applied where own decision thereon including the
or determined reasonably necessary by the reasons therefor. In the absence of either
(2) Advise the applicant or recipient officer conducting the hearing. The exceptions or a notice of review the
that the matter in question has been set hearing officer may exclude irrelevant, initial decision shall, subject to
for hearing at a stated place and time. immaterial, or unduly repetitious paragraph (e) of this section, constitute
The time and place so fixed shall be evidence. All documents and other the final decision of the designated
reasonable and shall be subject to evidence offered or taken for the record Agency official.
change for cause. The complainant, if shall be open to examination by the (b) Decisions on record or review by
any, shall be advised of the time and parties and opportunity shall be given to the designated Agency official.
place of the hearing. An applicant or refute facts and arguments advanced on Whenever a record is certified to the
recipient may waive a hearing and either side of the issues. A transcript designated Agency official for decision
submit written information and shall be made of the oral evidence or he or she reviews the decision of a
argument for the record. The failure of except to the extent the substance hearing examiner pursuant to paragraph
an applicant or recipient to request a thereof is stipulated for the record. All (a) of this section, or whenever the
hearing under this paragraph or to decisions shall be based upon the designated Agency official conducts the
appear at a hearing for which a date has hearing record and written findings hearing, the applicant or recipient shall
been set shall be deemed to be a waiver shall be made. be given reasonable opportunity to file
of the right to a hearing under section (e) Consolidated or joint hearings. In with the designated Agency official
602 of Title VI and § 22.8(c) and consent cases in which the same or related facts briefs or other written statements of its
to the making of a decision on the basis are asserted to constitute contentions, and a written copy of the
of such information as is available. noncompliance with this part with final decision of the designated Agency
(b) Time and place of hearing. respect to two or more federal statutes, official shall be sent to the applicant or
Hearings shall be held at the offices of authorities, or other means by which recipient and to the complainant, if any.
the Department of the Treasury federal financial assistance is extended (c) Decisions on record where a
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component administering the program, and to which this part applies, or hearing is waived. Whenever a hearing
at a time fixed by the designated Agency noncompliance with this part and the is waived pursuant to § 22.9, a decision
official unless the designated Agency regulations of one or more other federal shall be made by the designated Agency
official determines that the convenience departments or agencies issued under official on the record and a written copy
of the applicant or recipient or of the Title VI, the designated Agency official of such decision shall be sent to the
Agency requires that another place be may, by agreement with such other applicant or recipient, and to the
selected. Hearings shall be held before departments or agencies, where complainant, if any.

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89860 Federal Register / Vol. 81, No. 239 / Tuesday, December 13, 2016 / Rules and Regulations

(d) Rulings required. Each decision of may at any time request the designated order, instruction, or like direction
a hearing examiner or the designated Agency official to restore fully its before the effective date of this part.
Agency official shall set forth his or her eligibility to receive federal financial Nothing in this part, however,
ruling on each finding, conclusion, or assistance. Any such request shall be supersedes any of the following
exception presented, and shall identify supported by information showing that (including future amendments thereof):
the requirement or requirements the applicant or recipient has met the (1) Executive Order 11246 (3 CFR,
imposed by or pursuant to this part with requirements of paragraph (g)(1) of this 1965 Supp., p. 167) and regulations
which it is found that the applicant or section. If the designated Agency official issued thereunder; or
recipient has failed to comply. determines that those requirements have (2) Any other orders, regulations, or
(e) Approval by designated Agency been satisfied, he or she shall restore instructions, insofar as such orders,
official. Any final decision by an official such eligibility. regulations, or instructions prohibit
of the Agency, other than the designated (3) If the designated Agency official discrimination on the ground of race,
Agency official personally, which denies any such request, the applicant color, or national origin in any program
provides for the suspension or or recipient may submit a request for a or situation to which this part is
termination of, or the refusal to grant or hearing in writing, specifying why it inapplicable, or prohibit discrimination
continue federal financial assistance, or believes such official to have been in on any other ground.
the imposition of any other sanction error. It shall thereupon be given an
available under this part or Title VI, (b) Forms and instructions. The
expeditious hearing, with a decision on
shall promptly be transmitted to the designated Agency official shall issue
the record in accordance with rules or
designated Agency official personally, and promptly make available to all
procedures issued by the designated
who may approve such decision, may interested persons forms and detailed
Agency official. The applicant or
vacate it, or remit or mitigate any instructions and procedures for
recipient will be restored to such
sanction imposed. effectuating this part as applied to
eligibility if it proves at such a hearing
(f) Content of orders. The final programs to which this part applies and
that it satisfied the requirements of
decision may provide for suspension or for which the designated Agency official
paragraph (g)(1) of this section. While
termination of, or refusal to grant or is responsible.
proceedings under this paragraph are
continue federal financial assistance, in pending, the sanctions imposed by the (c) Supervision and coordination. The
whole or in part, to which this order issued under paragraph (f) of this designated Agency official may from
regulation applies, and may contain section shall remain in effect. time to time assign to officials of the
such terms, conditions, and other Agency, or to officials of other
provisions as are consistent with and § 22.11 Judicial review. departments or agencies of the
will effectuate the purposes of Title VI Action taken pursuant to section 602 Government with the consent of such
and this part, including provisions of the Title VI is subject to judicial departments or agencies,
designed to assure that no federal review as provided in section 603 of the responsibilities in connection with the
financial assistance to which this Title VI. effectuation of the purposes of Title VI
regulation applies will thereafter be and this part (other than responsibility
extended to the applicant or recipient § 22.12 Effect on other regulations, forms, for final decision as provided in
determined by such decision to be in and instructions. § 22.10), including the achievement of
default in its performance of an (a) Effect on other regulations. All effective coordination and maximum
assurance given by it pursuant to this regulations, orders, or like directions uniformity within the Agency and
part, or to have otherwise failed to issued before the effective date of this within the Executive Branch of the
comply with this part, unless and until part by any officer of the Department of Government in the application of Title
it corrects its noncompliance and the Treasury which impose VI and this part to similar programs and
satisfies the designated Agency official requirements designed to prohibit any in similar situations. Any action taken,
that it will fully comply with this part. discrimination against individuals on determination made or requirement
(g) Post termination proceedings. (1) the grounds of race, color, or national imposed by an official of another
An applicant or recipient adversely origin under any program to which this department or agency acting pursuant to
affected by an order issued under part applies, and which authorize the an assignment of responsibility under
paragraph (f) of this section shall be suspension or termination of or refusal this paragraph shall have the same effect
restored to full eligibility to receive to grant or to continue federal financial as though such action had been taken by
federal financial assistance if it satisfies assistance to any applicant for a the designated Agency official of the
the terms and conditions of that order recipient of such assistance for failure to Department.
for such eligibility or if it brings itself comply with such requirements, are
into compliance with this part and hereby superseded to the extent that Appendix A to Part 22—Activities to
provides reasonable assurance that it such discrimination is prohibited by Which This Part Applies
will fully comply with this part. this part, except that nothing in this part Note: Failure to list a type of federal
(2) Any applicant or recipient may be considered to relieve any person assistance in this appendix A shall not mean,
adversely affected by an order entered of any obligation assumed or imposed if Title VI is otherwise applicable, that a
pursuant to paragraph (f) of this section under any such superseded regulation, program is not covered.

Component Program or activity Authority
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Departmental Offices, Office of Domestic Fi- Community Development Financial Institutions Riegle Community Development and Regu-
nance, Office of Financial Institutions. Fund—Financial Component. latory Improvement Act of 1994, 12 U.S.C.
4701 et seq.
Departmental Offices, Office of Domestic Fi- Community Development Financial Institutions Riegle Community Development and Regu-
nance, Office of Financial Institutions. Fund—Technical Assistance Component. latory Improvement Act of 1994, 12 U.S.C.
4701 et seq.

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Document Created: 2016-12-13 02:44:41
Document Modified: 2016-12-13 02:44:41

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		Effective January 12, 2017.
Contact		Mariam G. Harvey, Director, Office of Civil Rights and Diversity, Department of the Treasury, (202) 622-0316 (voice), by mail to Mariam G. Harvey, Director, Office of Civil Rights and Diversity, 1500 Pennsylvania Avenue NW., Washington, DC 20220; or facsimile (202) 622-0367.
FR Citation		81 FR 89852
RIN Number		1505-AC45
CFR Associated		Administrative Practice and Procedure; Claims; Disability Benefits; Government Contracts and Nondiscrimination