82 FR 47107 - Nondiscrimination on the Basis of Age in Programs and Activities Receiving Federal Financial Assistance From the Department of the Treasury

DEPARTMENT OF THE TREASURY

Federal Register Volume 82, Issue 195 (October 11, 2017)

Page Range		47107-47112
FR Document		2017-21905
This final rule sets out the Department of the Treasury's (Treasury) rules for implementing the Age Discrimination Act of 1975, as amended (the Act). The Act prohibits discrimination on the basis of age in programs and activities receiving Federal financial assistance. The Act, which applies to persons of all ages, permits the use of certain age distinctions and factors other than age that meet the Act's requirements. This final rule follows publication of an August 4, 2015, proposed rule and takes into account the comments received.
Federal Register, Volume 82 Issue 195 (Wednesday, October 11, 2017)
[Federal Register Volume 82, Number 195 (Wednesday, October 11, 2017)]
[Rules and Regulations]
[Pages 47107-47112]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-21905]


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DEPARTMENT OF THE TREASURY

31 CFR Part 23

RIN 1505-AC51


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

AGENCY: Department of the Treasury.

ACTION: Final rule.

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

SUMMARY: This final rule sets out the Department of the Treasury's 
(Treasury) rules for implementing the Age Discrimination Act of 1975, 
as amended (the Act). The Act prohibits discrimination on the basis of 
age in programs and activities receiving Federal financial assistance. 
The Act, which applies to persons of all ages, permits the use of 
certain age distinctions and factors other than age that meet the Act's 
requirements. This final rule follows publication of an August 4, 2015, 
proposed rule and takes into account the comments received.

DATES: Effective November 13, 2017.

FOR FURTHER INFORMATION CONTACT: Mariam G. Harvey, Director, Office of 
Civil Rights and Diversity, Department of the Treasury, (202) 622-0316 
(voice).

SUPPLEMENTARY INFORMATION:

I. Background

    The Age Discrimination Act of 1975, 42 U.S.C. 6101-6107 (``the 
Act''), which Congress enacted as part of amendments to the Older 
Americans Act (Pub. L. 94-135, 89 Stat. 713, 728), prohibits 
discrimination on the basis of age in programs and activities receiving 
Federal financial assistance. The Civil Rights Restoration Act of 1987 
(Pub. L. 100-259, 102 Stat. 28, 31 (1988)) amended the Act and other 
civil rights statutes to define ``program or activity'' to mean all of 
the operations of specified entities, any part of which is extended 
Federal financial assistance. See 42 U.S.C. 6107(4).
    The Act applies to discrimination at all age levels. The Act also 
contains specific exceptions that permit the use of certain age 
distinctions and factors other than age that meet the Act's 
requirements.
    The Act required the former Department of Health, Education, and 
Welfare (HEW) to issue general, government-wide regulations, setting 
standards to be followed by all Federal agencies implementing the Act. 
These government-wide regulations, which were issued on June 12, 1979 
(44 FR 33768), and became effective on July 1, 1979, require each 
Federal agency providing financial assistance to any program or 
activity to publish proposed regulations implementing the Act, and to 
submit final agency regulations to HEW (now the Department of Health 
and Human Services (HHS)), before publication in the Federal Register. 
See 45 CFR 90.31.
    The Act became effective on the effective date of HEW's final 
government-wide regulations (i.e., July 1, 1979). Treasury has enforced 
the provisions of the Act since that time. As a practical matter, the 
absence of Treasury-specific age regulations has not had an impact on 
Treasury's legal authority to enforce prohibitions against 
discrimination on the basis of age in programs or activities receiving 
Federal financial assistance from Treasury. Specifically, persons 
alleging age discrimination have not been hampered in their ability to 
file complaints nor has Treasury's Office of Civil Rights and 
Diversity's (OCRD) ability to process these complaints been affected.
    On August 4, 2015 (80 FR 46208), the Department issued a notice of 
proposed rulemaking and invited comments on all aspects of the 
proposal.

II. Overview of Final Rule

    This rule is designed to fulfill the statutory and regulatory 
obligations of Treasury to issue a regulation implementing the Act that 
conforms to the government-wide regulations at 45 CFR part 90. The rule 
carries out the Act's prohibition of discrimination based on age in 
programs and activities receiving financial assistance from Treasury 
and provides appropriate investigative, conciliation, and enforcement 
procedures. OCRD, part of the Office of the Assistant Secretary for 
Management, will conduct Treasury enforcement. OCRD enforces all civil 
rights laws applicable to entities receiving financial assistance from 
Treasury.
    The rule is not intended to alter the legal standards found in the 
Act or the government-wide regulations, which are applicable to 
recipients of Federal financial assistance from Treasury under other 
statutes. Treasury does not provide financial assistance within the 
meaning of these rules merely by disbursing a payment on behalf of 
another Federal agency. The rule closely follows the wording and format 
of rules issued by other Federal agencies to implement the Act. In 
particular, Treasury modeled much of its proposal on the agency-
specific regulations issued by HHS, the lead Federal agency 
coordinating implementation of the Act (45 CFR part 91; 47 FR 57850, 
Dec. 28, 1982); and the Department of Education (ED) (34 CFR part 110; 
58 FR 40194, July 27, 1993). The government-wide, HHS, and ED rules 
were subjected to extensive public scrutiny, and the public comments 
were considered in finalizing those rules. Readers may review the HHS 
and ED Federal Register publications for historical and explanatory 
material regarding the Act, the government-wide regulations, and the 
provisions of the HHS and ED implementing regulations.
    In general, the final rule mirrors the government-wide regulations 
at 45 CFR part 90 and HHS's and ED's regulations implementing the Act, 
with modifications to aid consistency and clarify the Treasury specific 
provisions. Subpart A sets forth the rule's purpose, applications, and 
definitions. Subpart B contains the standards for determining age 
discrimination. Subpart C comprises the duties and responsibilities of 
Treasury recipients. Subpart D establishes the procedures for 
investigations, conciliation and enforcement. For a complete discussion 
of the proposal, see the August 4, 2015, proposed rule at 80 FR 46208.

III. Summary of Public Comments and Explanation of Revisions

    Treasury received three comments on the proposed rule which 
generally supported the rule. One commenter suggested revisions that 
are discussed below.
    The commenter suggested there could be confusion in the employer 
community and among employees who may not be aware that the Age 
Discrimination Act (Age Act), and the Age Discrimination in Employment 
Act (ADEA) are separate statutes with

[[Page 47108]]

different purposes, procedures, and remedies. In response to this 
comment, Treasury added a reference to the Age Act, 42 U.S.C. 6103 
(c)(2) to the rule, specifically stating that the rule does not in any 
way affect the Equal Employment Opportunity Commission's regulations 
implementing the ADEA at 29 CFR 1625, 1626, and 1627.
    The commenter noted that the proposed rule purported to apply to 
programs under the Comprehensive Employment and Training Act (CETA) (29 
U.S.C. 801, et seq.), but those programs are no longer in effect. 
Treasury has revised Sec.  23.3(b)(2) to eliminate the reference to 
CETA.
    The commenter suggested that the rule, at Sec.  23.46(a)(2)(ii), 
should make more clear that referrals will be made to the EEOC with 
respect to violations of the ADEA. Treasury edited the rule to add 
specifically that referrals will be made to the EEOC, Labor, HHS or 
Education as applicable. The general reference in Sec.  23.46(a)(2)(ii) 
to any Federal, State, or local government agency remains since 
referrals could be made to other agencies as well.
    The commenter suggested that the ADEA be added to the definitions 
section in Sec.  23.4. In response to this comment, Treasury added the 
ADEA to the definitions section.
    The commenter noted that the Supreme Court held in General Dynamics 
Land Systems, Inc. v. Cline, 540 U.S. 581, 600 (2004) that ``the [ADEA] 
does not mean to stop an employer from favoring an older employee over 
a younger one,'' and suggested that Treasury consider whether Cline 
warrants any revisions to its Age Act regulation. Treasury has reviewed 
the statute and case law and has concluded that, unlike the ADEA, the 
Age Act does not limit its protection to a specific age group. The Age 
Act also provides exceptions from age discrimination requirements for 
normal operation or to meet statutory objectives of any program or 
activity (see Sec. Sec.  23.13 and Sec.  23.14). Therefore, Treasury 
did not adopt any revisions in response to this comment.
    Another comment noted that Sec. Sec.  23.13 and 23.14 discuss the 
defenses of 42 U.S.C. 6103(b)(1) (A) and (B), that the defense in 
subparagraph (A) appears to be functionally similar to the ``bona fide 
occupational qualification'' (BFOQ) defense set out in Sec.  4(f)(1) of 
the ADEA, 29 U.S.C. 623(f)(1), and that the language of the defense in 
subparagraph (B) is identical to the ``reasonable factors other than 
age'' (RFOA) defense set out in the same ADEA section. The commenter 
then noted that the EEOC regulations at 29 CFR 1625.6 and 1625.7 
address the BFOQ and RFOA defenses and suggested that Treasury consider 
whether any points made in the EEOC's BFOQ or RFOA regulations should 
be adapted for inclusion in the Age Act regulation. The commenter also 
cited the Supreme Court's decision in Smith v. City of Jackson, 544 
U.S. 228 (2005), and note that this case caused the EEOC to revise the 
EEOC's ``reasonable factor other than age'' regulation. See 29 CFR 
1625.7. It suggested that Treasury consider whether Smith warrants a 
revision of Sec.  23.14.
    Treasury considered adopting the EEOC's regulations for BFOQ and 
RFOA under the ADEA, but the legislative intent of the two statutes 
(ADEA and Age Act) is different. The ADEA was designed to protect older 
workers, while the Age Act was intended to prohibit all kinds of 
unreasonable age discrimination. In addition, adopting EEOC's BFOQ and 
RFOA factors, and applying them outside of the employment arena could 
create confusion with the ADEA. For these reasons, Treasury decided not 
to adopt the EEOC's regulations for BFOQ and RFOA for inclusion in our 
Age Act regulation.
    The commenter noted that Sec. Sec.  23.43(c) and 23.44(a)(3) 
discuss mediation agreements and, if the settlement purports to include 
rights under the ADEA, section 7(f) of the ADEA, 29 U.S.C. 626(f), sets 
out specific rules for the waiver of rights and claims under the ADEA. 
See 29 CFR 1625.22. Treasury considered this comment, but because the 
regulations do not cover employment, see Sec.  23.3(b)(2)), Treasury 
does not anticipate settlements will include rights under the ADEA and 
has made no revisions.

IV. Regulatory Procedures

Executive Order 12866

    This rule is not a ''significant regulatory action'' under 
Executive Order 12866. Therefore, no regulatory impact analysis has 
been prepared.

Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), 
it is hereby certified that this rule would not have a significant 
economic impact on a substantial number of small entities. The rule 
will clarify existing requirements for entities receiving financial 
assistance from Treasury. The requirements prohibiting age 
discrimination by recipients of Federal financial assistance that are 
in the Act and the government-wide regulations have been in effect 
since 1979. In addition, entities receiving financial assistance from 
Treasury have been expressly informed of their obligations to comply 
with the Act by the offices administering the assisted programs. 
Because the rule does not substantively change existing obligations on 
recipients, but merely clarifies such duties, Treasury certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Consequently, a regulatory flexibility 
analysis is not required.

Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (Unfunded 
Mandates Act) requires an agency to prepare a budgetary impact 
statement before promulgating a rule that includes a Federal mandate 
that may result in expenditure by State, local, and tribal governments, 
in the aggregate, or by the private sector, of $100 million or more in 
any one year. If a budgetary impact statement is required, section 205 
of the Unfunded Mandates Act also requires an agency to identify and 
consider a reasonable number of regulatory alternatives before 
promulgating a rule. This rule will not result in expenditures by 
State, local or tribal governments or by the private sector of $100 
million or more. Accordingly, the Department has not prepared a 
budgetary impact statement or specifically addressed the regulatory 
alternatives considered.

List of Subjects in 31 CFR Part 23

    Aged, Discrimination against aged.

    For the reasons stated in the preamble, the Department of the 
Treasury amends subtitle A of title 31 of the CFR by adding part 23 to 
read as follows:

PART 23--NONDISCRIMINATION ON THE BASIS OF AGE IN PROGRAMS AND 
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE FROM THE 
DEPARTMENT OF THE TREASURY

Subpart A--General
Sec.
23.1 What is the purpose of the Age Discrimination Act of 1975?
23.2 What is the purpose of Treasury's discrimination regulations?
23.3 To what programs does this part apply?
23.4 Definitions of terms used in this part.
Subpart B--Standards for Determining Age Discrimination
23.11 Rules against age discrimination.
23.12 Definitions of ``normal operation'' and ``statutory 
objective.''
23.13 Exceptions to the rules against age discrimination: Normal 
operation or

[[Page 47109]]

statutory objective of any program or activity.
23.14 Exceptions to the rules against age discrimination: Reasonable 
factors other than age.
23.15 Burden of proof.
23.16 Affirmative action by recipients.
23.17 Special benefits for children and the elderly.
23.18 Age distinctions contained in Treasury's regulations.
Subpart C--Duties of Treasury Recipients
23.31 General responsibilities.
23.32 Notice to subrecipients and beneficiaries.
23.33 Assurance of compliance and recipient assessment of age 
distinctions.
23.34 Information requirements.
Subpart D--Investigations, Conciliation, and Enforcement Procedures
23.41 Compliance reviews.
23.42 Complaints.
23.43 Mediation.
23.44 Investigation.
23.45 Prohibition against intimidation or retaliation.
23.46 Compliance procedures.
23.47 Hearings, decisions, post-termination proceedings.
23.48 Remedial action by recipient.
23.49 Alternate funds disbursal procedure.
23.50 Exhaustion of administrative remedies.

    Authority:  Age Discrimination Act of 1975, as amended, 42 
U.S.C. 6101 et seq. (45 CFR part 90)

Subpart A--General


Sec.  23.1   What is the purpose of the Age Discrimination Act of 1975?

    The Age Discrimination Act of 1975, as amended, is designed to 
prohibit discrimination on the basis of age in programs or activities 
receiving Federal financial assistance. The Act also permits federally 
assisted programs and activities, and recipients of Federal funds, to 
continue to use certain age distinctions and factors other than age 
that meet the requirements of the Act and these regulations.


Sec.  23.2   What is the purpose of Treasury's age discrimination 
regulations?

    The purpose of these regulations is to set out Treasury's policies 
and procedures under the Age Discrimination Act of 1975 and the general 
age discrimination regulations at 45 CFR part 90. The Act and the 
general regulations prohibit discrimination on the basis of age in 
programs or activities receiving Federal financial assistance. The Act 
and the general regulations permit federally assisted programs and 
activities, and recipients of Federal funds, to continue to use age 
distinctions and factors other than age that meet the requirements of 
the Act and its implementing regulations. These regulations do not 
apply to actions arising under the Age Discrimination in Employment Act 
of 1967, Public Law 90-202, 29 U.S.C. 621 through 634 (ADEA), and do 
not in any way affect the Equal Employment Opportunity Commission's 
regulations implementing the ADEA at 29 CFR 1625, 1626, and 1627.


Sec.  23.3   To what programs does this part apply?

    (a) This part applies to any program or activity receiving Federal 
financial assistance from Treasury.
    (b) The regulations in this part do not apply to:
    (1) An age distinction contained in that part of a Federal, State, 
or local statute or ordinance adopted by an elected, general purpose 
legislative body that:
    (i) Provides any benefits or assistance to persons based on age; or
    (ii) Establishes criteria for participation in age-related terms; 
or
    (iii) Describes intended beneficiaries to target groups in age-
related terms; or
    (2) Any employment practice of any employer, employment agency, 
labor organization, or any labor-management joint apprenticeship 
training program.


Sec.  23.4   Definition of terms used in this part.

    As used in these regulations, the term:
    Act means the Age Discrimination Act of 1975, as amended, 42 U.S.C. 
6101-6107.
    Action means any act, activity, policy, rule, standard, or method 
of administration; or the use of any policy, rule, standard, or method 
of administration.
    ADEA means the Age Discrimination in Employment Act of 1967, which 
forbids employment discrimination against anyone 40 years of age or 
older.
    Age means how old a person is, or the number of years from the date 
of a person's birth.
    Age distinction means any action using age or an age-related term.
    Age-related term means a word or words that necessarily imply a 
particular age or range of ages (for example, ``children,'' ``adult,'' 
``older persons,'' but not ``student'').
    Federal financial assistance means any grant, entitlement, loan, 
cooperative agreement, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement by which 
Treasury provides assistance in the form of:
    (1) Funds; or
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use or 
property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of property if 
the federal share of its fair market value is not returned to the 
Federal Government.
    Program or activity means all of the operations of any entity 
described in paragraphs (1) through (4) of this definition, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other 
State or local government entity) to which the assistance is extended, 
in the case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) That is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity that is established by two or more of the 
entities described in paragraph (1), (2), or (3) of this definition.
    Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended, directly or 
through another recipient. Recipient includes any successor, assignee, 
or transferee, but excludes the ultimate beneficiary of the assistance.
    Secretary means the Secretary of the Treasury, or his or her 
designee.
    Subrecipient means any of the entities in the definition of 
recipient to which a

[[Page 47110]]

recipient extends or passes on Federal financial assistance. A 
subrecipient is generally regarded as a recipient of Federal financial 
assistance and has all the duties of a recipient in these regulations.
    Treasury means the United States Department of the Treasury.
    United States means the fifty states, the District of Columbia, 
Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the 
Trust Territory of the Pacific Islands, the Northern Marianas, and the 
territories and possessions of the United States.

Subpart B--Standards for Determining Age Discrimination


Sec.  23.11   Rules against age discrimination.

    The rules stated in this section are limited by the exceptions 
contained in Sec. Sec.  23.13 and 23.14.
    (a) General rule. No person in the United States shall, on the 
basis of age, be excluded from participation in, be denied the benefits 
of, or be subjected to discrimination under, any program or activity 
receiving Federal financial assistance.
    (b) Specific rules. A recipient may not, in any program or activity 
receiving Federal financial assistance, directly or through contractual 
licensing, or other arrangements, use age distinctions or take any 
other actions that have the effect, on the basis of age, of:
    (1) Excluding individuals from, denying them the benefits of, or 
subjecting them to discrimination under, a program or activity 
receiving Federal financial assistance; or
    (2) Denying or limiting individuals in their opportunity to 
participate in any program or activity receiving Federal financial 
assistance.
    (c) Non-exhaustive list. The specific forms of age discrimination 
listed in paragraph (b) of this section do not necessarily constitute a 
complete list.


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

    For purposes of Sec. Sec.  23.13 and 23.14, the terms ``normal 
operation'' and ``statutory objective'' shall have the following 
meaning:
    (a) Normal operation means the operation of a program or activity 
without significant changes that would impair its ability to meet its 
objectives.
    (b) Statutory objective means any purpose of a program or activity 
expressly stated in any Federal statute, State statute, or local 
statute or ordinance adopted by an elected, general purpose legislative 
body.


Sec.  23.13   Exceptions to the rules against age discrimination: 
Normal operation or statutory objective of any program or activity.

    A recipient is permitted to take an action, otherwise prohibited by 
Sec.  23.11, if the action reasonably takes into account age as a 
factor necessary to the normal operation or the achievement of any 
statutory objective of a program or activity. An action reasonably 
takes into account age as a factor necessary to the normal operation or 
the achievement of any statutory objective of a program or activity, 
if:
    (a) Age is used as a measure or approximation of one or more other 
characteristics; and
    (b) The other characteristic(s) must be measured or approximated 
for the normal operation of the program or activity to continue, or to 
achieve any statutory objective of the program or activity; and
    (c) The other characteristic(s) can be reasonably measured or 
approximated by the use of age; and
    (d) The other characteristic(s) are impractical to measure directly 
on an individual basis.


Sec.  23.14   Exceptions to the rules against age discrimination: 
Reasonable factors other than age.

    A recipient is permitted to take an action otherwise prohibited by 
Sec.  23.11 that is based on a factor other than age, even though that 
action may have a disproportionate effect on persons of different ages. 
An action may be based on a factor other than age only if the factor 
bears a direct and substantial relationship to the normal operation of 
the program or activity or to the achievement of a statutory objective.


Sec.  23.15   Burden of proof.

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


Sec.  23.16   Affirmative action by recipient.

    Even in the absence of a finding of discrimination, a recipient may 
take affirmative action to overcome the effects of conditions that 
resulted in limited participation in the recipient's program or 
activity on the basis of age.


Sec.  23.17   Special benefits for children and the elderly.

    If a recipient's operation of a program or activity provides 
special benefits to the elderly or to children, such use of age 
distinctions shall be presumed to be necessary to the normal operation 
of the program or activity, notwithstanding the provisions of Sec.  
23.13.


Sec.  23.18   Age distinctions contained in Treasury regulations.

    Any age distinctions contained in a rule or regulation issued by 
Treasury shall be presumed to be necessary to the achievement of a 
statutory objective of the program or activity to which the rule or 
regulation applies, notwithstanding the provisions of Sec.  23.13.

Subpart C--Duties of Treasury Recipients


Sec.  23.31   General responsibilities.

    Each Treasury recipient has primary responsibility to ensure that 
its programs and activities are in compliance with the Act and these 
regulations, and shall take steps to eliminate violations of the Act. A 
recipient also has responsibility to maintain records, provide 
information, and afford Treasury access to its records to the extent 
Treasury finds necessary to determine whether the recipient is in 
compliance with the Act and these regulations.


Sec.  23.32   Notice to subrecipients and beneficiaries.

    (a) Where a recipient passes on Federal financial assistance from 
Treasury to subrecipients, the recipient shall provide the 
subrecipients written notice of their obligations under the Act and 
these regulations.
    (b) Each recipient shall make necessary information about the Act 
and these regulations available to its program beneficiaries to inform 
them about the protections against discrimination provided by the Act 
and these regulations.


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

    (a) Written assurance. Each recipient of Federal financial 
assistance from Treasury shall sign a written assurance as specified by 
Treasury that it will comply with the Act and these regulations.
    (b) Recipient assessment of age distinctions. (1) As part of a 
compliance review under Sec.  23.41 or a complaint investigation under 
Sec.  23.44, Treasury may require a recipient employing the equivalent 
of 15 or more employees to complete a written self-evaluation, in a 
manner specified by the responsible Department official, of any age 
distinction imposed in its program or activity receiving Federal 
financial assistance from Treasury to assess the recipient's compliance 
with the Act.
    (2) Whenever an assessment indicates a violation of the Act or the 
Treasury regulations, the recipient shall take corrective action.

[[Page 47111]]

Sec.  23.34   Information requirements.

    Each recipient shall:
    (a) Keep records in a form and containing information that Treasury 
determines may be necessary to ascertain whether the recipient is 
complying with the Act and these regulations.
    (b) Provide to Treasury, upon request, information and reports that 
Treasury determines are necessary to ascertain whether the recipient is 
complying with the Act and these regulations.
    (c) Permit reasonable access by Treasury to the books, records, 
accounts, and other recipient facilities and sources of information to 
the extent Treasury determines is necessary to ascertain whether the 
recipient is complying with the Act and these regulations.

Subpart D--Investigation, Conciliation, and Enforcement Procedures


Sec.  23.41   Compliance reviews.

    (a) Treasury may conduct compliance reviews and pre-award reviews 
or use other similar procedures that will permit it to investigate and 
correct violations of the Act and these regulations. Treasury may 
conduct these reviews even in the absence of a complaint against a 
recipient. The reviews may be as comprehensive as necessary to 
determine whether a violation of the Act or these regulations has 
occurred.
    (b) If a compliance review or pre-award review indicates a 
violation of the Act or these regulations, Treasury will attempt to 
achieve voluntary compliance. If voluntary compliance cannot be 
achieved, Treasury will arrange for enforcement as described in Sec.  
23.46.


Sec.  23.42   Complaints.

    (a) Any person, individually or as a member of a class or on behalf 
of others, may file a complaint with Treasury, alleging discrimination 
prohibited by the Act or these regulations based on an action occurring 
on or after July 1, 1979. A complainant shall file a complaint within 
180 days from the date the complainant first had knowledge of the 
alleged act of discrimination. However, for good cause shown, Treasury 
may extend this time limit.
    (b) Treasury will consider the date a complaint is filed to be the 
date upon which the complaint is sufficient to be processed.
    (c) Treasury will attempt to facilitate the filing of complaints 
wherever possible, including taking the following measures:
    (1) Accepting as a sufficient complaint any written statement that 
identifies the parties involved and the date the complainant first had 
knowledge of the alleged violation, describes generally the action or 
practice complained of, and is signed by the complainant.
    (2) Freely permitting a complainant to add information to the 
complaint to meet the requirements of a sufficient complaint.
    (3) Notifying the complainant and the recipient of their rights and 
obligations under the complaint procedure, including the right to have 
a representative at all stages of the complaint resolution process.
    (4) Notifying the complainant and the recipient (or their 
representatives) of their right to contact Treasury for information and 
assistance regarding the complaint resolution process.
    (d) Treasury will notify the complainant when the complaint falls 
outside the jurisdiction of these regulations, and will state the 
reason(s) why it is outside the jurisdiction of these regulations.


Sec.  23.43   Mediation.

    (a) Treasury will promptly refer to a mediation agency designated 
by the Secretary of the Department of Health and Human Services (HHS) 
all sufficient complaints that:
    (1) Fall within the jurisdiction of the Act and these regulations, 
unless the age distinction complained of is clearly within an 
exception; and,
    (2) Contain all information necessary for further processing.
    (b) Both the complainant and the recipient shall participate in the 
mediation process to the extent necessary to reach an agreement or make 
an informed judgment that an agreement is not possible.
    (c) If the complainant and the recipient reach an agreement, the 
mediator shall prepare a written statement of the agreement and have 
the complainant and the recipient sign it. The mediator shall send a 
copy of the agreement to Treasury. Treasury will take no further action 
on the complaint unless the complainant or the recipient fails to 
comply with the agreement.
    (d) The mediator shall protect the confidentially of all 
information obtained in the course of the mediation process. No 
mediator shall testify in any adjudicative proceeding, produce any 
document, or otherwise disclose any information obtained in the course 
of the mediation process without prior approval of the head of the 
mediation agency.
    (e)(1) The mediation will proceed for a maximum of 60 days after a 
complaint is filed with Treasury. Mediation ends if:
    (i) 60 days elapse from the time the complaint is filed; or
    (ii) Prior to the end of that 60-day period, an agreement is 
reached; or
    (iii) Prior to the end of that 60-day period, the mediator 
determines that an agreement cannot be reached.
    (2) This 60-day period may be extended by the mediator, with the 
concurrence of Treasury, for not more than 30 days if the mediator 
determines that agreement likely will be reached during such extended 
period.
    (f) The mediator shall notify Treasury when mediation is not 
successful and Treasury will continue processing the complaint.


Sec.  23.44   Investigation.

    (a) Informal investigation. (1) Treasury will investigate 
complaints that are unresolved after mediation or are reopened because 
of a violation of a mediation agreement.
    (2) As part of the initial investigation, Treasury will use 
informal fact finding methods, including joint or separate discussions 
with the complainant and recipient, to establish the facts and, if 
possible, settle the complaint on terms that are mutually agreeable to 
the parties. Treasury may seek the assistance of any involved State 
agency.
    (3) Any settlement agreement will be put in writing and the parties 
will sign it.
    (4) The settlement shall not affect the operation of any other 
enforcement effort of Treasury, including compliance reviews and 
investigation of other complaints that may involve the recipient.
    (5) The settlement is not a finding of discrimination against a 
recipient.
    (b) Formal investigation. If Treasury cannot resolve the complaint 
through informal investigation, it will begin to develop formal 
findings through further investigation of the complaint. If the 
investigation indicates a violation of these regulations, Treasury will 
attempt to obtain voluntary compliance. If Treasury cannot obtain 
voluntary compliance, it will begin enforcement as described in Sec.  
23.46


Sec.  23.45   Prohibition against intimidation or retaliation.

    A recipient may not engage in acts of intimidation or retaliation 
against any person who:
    (a) Attempts to assert a right protected by the Act or these 
regulations; or
    (b) Cooperates in any mediation, investigation, hearing, or other 
part of Treasury's investigation, conciliation, and enforcement 
process.

[[Page 47112]]

Sec.  23.46   Compliance procedures.

    (a) Treasury may enforce the Act and these regulations through:
    (1) Termination of a recipient's Federal financial assistance from 
Treasury under the program or activity involved where the recipient has 
violated the Act or these regulations. The determination of the 
recipient's violation may be made only after a recipient has had an 
opportunity for a hearing on the record before an administrative law 
judge.
    (2) Any other means authorized by law, including but not limited 
to:
    (i) Referral to the Department of Justice for proceedings to 
enforce any rights of the United States or obligations of the recipient 
created by the Act or these regulations;
    (ii) Referral to the Equal Employment Opportunity Commission, 
Department of Labor, the Department of Health and Human Services, or 
the Department of Education, as applicable; and
    (iii) Use of any requirement of or referral to any Federal, State, 
or local government agency that will have the effect of correcting a 
violation of the Act or these regulations.
    (b) Treasury will limit any termination under paragraph (a)(1) of 
this section to the particular recipient and particular program or 
activity or part of such program or activity Treasury finds in 
violation of these regulations. Treasury will not base any part of a 
termination on a finding with respect to any program or activity of the 
recipient that does not receive Federal financial assistance from 
Treasury.
    (c) Treasury will take no action under paragraph (a) of this 
section until:
    (1) The Secretary has advised the recipient of its failure to 
comply with the Act and these regulations and has determined that 
voluntary compliance cannot be obtained.
    (2) Thirty days have elapsed after the Secretary has sent a written 
report of the circumstances and grounds of the action to the committees 
of Congress having legislative jurisdiction over the Federal program or 
activity involved. The Secretary will file a report whenever any action 
is taken under paragraph (a) of this section.
    (d) Treasury also may defer granting new Federal financial 
assistance to a recipient when a hearing under paragraph (a)(1) of this 
section is initiated.
    (1) New Federal financial assistance from Treasury includes all 
assistance for which Treasury requires an application or approval, 
including renewal or continuation of existing activities, or 
authorization of new activities, during the deferral period. New 
Federal financial assistance from Treasury does not include increases 
in funding as a result of changed computation of formula awards or 
assistance approved prior to the beginning of a hearing under paragraph 
(a)(1) of this section.
    (2) Treasury will not begin a deferral until the recipient has 
received a notice of an opportunity for a hearing under paragraph 
(a)(1) of this section. Treasury will not continue a deferral for more 
than 60 days unless a hearing has begun within that time or the time 
for beginning the hearing has been extended by mutual consent of the 
recipient and the Secretary. Treasury will not continue a deferral for 
more than 30 days after the close of the hearing, unless the hearing 
results in a finding against the recipient.
    (3) Treasury will limit any deferral to the particular recipient 
and particular program or activity or part of such program or activity 
Treasury finds in violation of these regulations. Treasury will not 
base any part of a deferral on a finding with respect to any program or 
activity of the recipient that does not, and would not in connection 
with the new funds, receive Federal financial assistance from Treasury.


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

    Treasury procedural provisions for hearings, decisions, and post-
termination proceedings applicable to Title VI of the Civil Rights Act 
of 1964 and its implementing regulations within Title 31 of the CFR 
shall apply to Treasury enforcement of these regulations.


Sec.  23.48  Remedial action by recipient.

    Where Treasury finds a recipient has discriminated on the basis of 
age in violation of the Act or this part, the recipient shall take any 
remedial action that Treasury may require to overcome the effects of 
the discrimination.


Sec.  23.49  Alternate funds disbursal procedure.

    (a) When Treasury withholds funds from a recipient under these 
regulations, the Secretary may disburse the withheld funds directly to 
an alternate recipient, where appropriate: Any public or non-profit 
private organization or agency, or State or political subdivision of 
the State.
    (b) The Secretary will require any alternate recipient to 
demonstrate:
    (1) The ability to comply with these regulations; and
    (2) The ability to achieve the goals of the Federal statute 
authorizing the Federal financial assistance.


Sec.  23.50   Exhaustion of administrative remedies.

    (a) A complainant may file a civil action following the exhaustion 
of administrative remedies under the Act. Administrative remedies are 
exhausted if:
    (1) 180 days have elapsed since the complainant filed the complaint 
and Treasury has made no finding with regard to the complainant; or
    (2) Treasury issues any finding in favor of the recipient.
    (b) If Treasury fails to make a finding within 180 days or issues a 
finding in favor of the recipient, Treasury shall:
    (1) Promptly advise the complainant of this fact; and
    (2) Advise the complainant of his or her right to bring a civil 
action for injunctive relief; and
    (3) Inform the complainant:
    (i) That the complainant may bring a civil action only in a United 
States district court for the district in which the recipient is found 
or transacts business;
    (ii) That a complainant prevailing in a civil action has the right 
to be awarded the costs of the action, including reasonable attorney's 
fee, but that the complainant must demand these costs in the complaint.
    (iii) That before commencing the action the complainant shall give 
30 days notice by registered mail to the Secretary, the Secretary of 
HHS, the Attorney General of the United States, and the recipient.
    (iv) That the notice must state: The alleged violation of the Act; 
the relief requested; the court in which the complainant is bringing 
the action; and whether or not attorney's fees are demanded in the 
event the complainant prevails; and
    (v) That the complainant may not bring an action if the same 
alleged violation of the Act by the same recipient is the subject of a 
pending action in any court of the United States.

Kody H. Kinsley,
Assistant Secretary for Management.
[FR Doc. 2017-21905 Filed 10-10-17; 8:45 am]
 BILLING CODE 4810-25-P
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§ 0.216 Influencing legislation or Federal financial assistance. The Civil the Office of the Assistant Secretary for
petitioning Congress. Rights Restoration Act of 1987 (Pub. L. Management, will conduct Treasury
Except for the official handling, 100–259, 102 Stat. 28, 31 (1988)) enforcement. OCRD enforces all civil
through the proper channels, of matters amended the Act and other civil rights rights laws applicable to entities
relating to legislation in which the statutes to define ‘‘program or activity’’ receiving financial assistance from
Department has an interest, employees to mean all of the operations of Treasury.
shall not use government time, money, specified entities, any part of which is The rule is not intended to alter the
or property to petition a Member of extended Federal financial assistance. legal standards found in the Act or the
Congress to favor or oppose any See 42 U.S.C. 6107(4). government-wide regulations, which are
legislation or proposed legislation, or to The Act applies to discrimination at applicable to recipients of Federal
encourage others to do so. This section all age levels. The Act also contains financial assistance from Treasury
does not prohibit the use of government specific exceptions that permit the use under other statutes. Treasury does not
time by union representatives to of certain age distinctions and factors provide financial assistance within the
petition a Member of Congress to favor other than age that meet the Act’s meaning of these rules merely by
or oppose any legislation or proposed requirements. disbursing a payment on behalf of
legislation, where permitted by the The Act required the former another Federal agency. The rule closely
terms of a collective bargaining Department of Health, Education, and follows the wording and format of rules
agreement. Welfare (HEW) to issue general, issued by other Federal agencies to
government-wide regulations, setting implement the Act. In particular,
Dated: October 4, 2017.
standards to be followed by all Federal Treasury modeled much of its proposal
Kody H. Kinsley, agencies implementing the Act. These on the agency-specific regulations
Assistant Secretary for Management. government-wide regulations, which issued by HHS, the lead Federal agency
[FR Doc. 2017–21906 Filed 10–10–17; 8:45 am] were issued on June 12, 1979 (44 FR coordinating implementation of the Act
BILLING CODE 4810–25–P 33768), and became effective on July 1, (45 CFR part 91; 47 FR 57850, Dec. 28,
1979, require each Federal agency 1982); and the Department of Education
providing financial assistance to any (ED) (34 CFR part 110; 58 FR 40194, July
DEPARTMENT OF THE TREASURY program or activity to publish proposed 27, 1993). The government-wide, HHS,
regulations implementing the Act, and and ED rules were subjected to
31 CFR Part 23 to submit final agency regulations to extensive public scrutiny, and the
RIN 1505–AC51 HEW (now the Department of Health public comments were considered in
and Human Services (HHS)), before finalizing those rules. Readers may
Nondiscrimination on the Basis of Age publication in the Federal Register. See review the HHS and ED Federal
in Programs and Activities Receiving 45 CFR 90.31. Register publications for historical and
Federal Financial Assistance From the The Act became effective on the explanatory material regarding the Act,
Department of the Treasury effective date of HEW’s final the government-wide regulations, and
government-wide regulations (i.e., July the provisions of the HHS and ED
AGENCY: Department of the Treasury. 1, 1979). Treasury has enforced the implementing regulations.
ACTION: Final rule. provisions of the Act since that time. As In general, the final rule mirrors the
SUMMARY: This final rule sets out the a practical matter, the absence of government-wide regulations at 45 CFR
Department of the Treasury’s (Treasury) Treasury-specific age regulations has part 90 and HHS’s and ED’s regulations
rules for implementing the Age not had an impact on Treasury’s legal implementing the Act, with
Discrimination Act of 1975, as amended authority to enforce prohibitions against modifications to aid consistency and
(the Act). The Act prohibits discrimination on the basis of age in clarify the Treasury specific provisions.
discrimination on the basis of age in programs or activities receiving Federal Subpart A sets forth the rule’s purpose,
programs and activities receiving financial assistance from Treasury. applications, and definitions. Subpart B
Federal financial assistance. The Act, Specifically, persons alleging age contains the standards for determining
which applies to persons of all ages, discrimination have not been hampered age discrimination. Subpart C comprises
permits the use of certain age in their ability to file complaints nor has the duties and responsibilities of
distinctions and factors other than age Treasury’s Office of Civil Rights and Treasury recipients. Subpart D
that meet the Act’s requirements. This Diversity’s (OCRD) ability to process establishes the procedures for
final rule follows publication of an these complaints been affected. investigations, conciliation and
On August 4, 2015 (80 FR 46208), the enforcement. For a complete discussion
August 4, 2015, proposed rule and takes
Department issued a notice of proposed of the proposal, see the August 4, 2015,
into account the comments received.
rulemaking and invited comments on all proposed rule at 80 FR 46208.
DATES: Effective November 13, 2017. aspects of the proposal.
FOR FURTHER INFORMATION CONTACT: III. Summary of Public Comments and
Mariam G. Harvey, Director, Office of II. Overview of Final Rule Explanation of Revisions
Civil Rights and Diversity, Department This rule is designed to fulfill the Treasury received three comments on
of the Treasury, (202) 622–0316 (voice). statutory and regulatory obligations of the proposed rule which generally
SUPPLEMENTARY INFORMATION: Treasury to issue a regulation supported the rule. One commenter
implementing the Act that conforms to suggested revisions that are discussed
I. Background the government-wide regulations at 45 below.
CFR part 90. The rule carries out the The commenter suggested there could
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The Age Discrimination Act of 1975,
42 U.S.C. 6101–6107 (‘‘the Act’’), which Act’s prohibition of discrimination be confusion in the employer
Congress enacted as part of amendments based on age in programs and activities community and among employees who
to the Older Americans Act (Pub. L. 94– receiving financial assistance from may not be aware that the Age
135, 89 Stat. 713, 728), prohibits Treasury and provides appropriate Discrimination Act (Age Act), and the
discrimination on the basis of age in investigative, conciliation, and Age Discrimination in Employment Act
programs and activities receiving enforcement procedures. OCRD, part of (ADEA) are separate statutes with

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different purposes, procedures, and address the BFOQ and RFOA defenses assistance from Treasury have been
remedies. In response to this comment, and suggested that Treasury consider expressly informed of their obligations
Treasury added a reference to the Age whether any points made in the EEOC’s to comply with the Act by the offices
Act, 42 U.S.C. 6103 (c)(2) to the rule, BFOQ or RFOA regulations should be administering the assisted programs.
specifically stating that the rule does not adapted for inclusion in the Age Act Because the rule does not substantively
in any way affect the Equal Employment regulation. The commenter also cited change existing obligations on
Opportunity Commission’s regulations the Supreme Court’s decision in Smith recipients, but merely clarifies such
implementing the ADEA at 29 CFR v. City of Jackson, 544 U.S. 228 (2005), duties, Treasury certifies that the rule
1625, 1626, and 1627. and note that this case caused the EEOC will not have a significant economic
The commenter noted that the to revise the EEOC’s ‘‘reasonable factor impact on a substantial number of small
proposed rule purported to apply to other than age’’ regulation. See 29 CFR entities. Consequently, a regulatory
programs under the Comprehensive 1625.7. It suggested that Treasury flexibility analysis is not required.
Employment and Training Act (CETA) consider whether Smith warrants a
(29 U.S.C. 801, et seq.), but those Unfunded Mandates Reform Act
revision of § 23.14.
programs are no longer in effect. Treasury considered adopting the Section 202 of the Unfunded
Treasury has revised § 23.3(b)(2) to EEOC’s regulations for BFOQ and RFOA Mandates Reform Act of 1995
eliminate the reference to CETA. under the ADEA, but the legislative (Unfunded Mandates Act) requires an
The commenter suggested that the intent of the two statutes (ADEA and agency to prepare a budgetary impact
rule, at § 23.46(a)(2)(ii), should make Age Act) is different. The ADEA was statement before promulgating a rule
more clear that referrals will be made to designed to protect older workers, while that includes a Federal mandate that
the EEOC with respect to violations of the Age Act was intended to prohibit all may result in expenditure by State,
the ADEA. Treasury edited the rule to kinds of unreasonable age local, and tribal governments, in the
add specifically that referrals will be discrimination. In addition, adopting aggregate, or by the private sector, of
made to the EEOC, Labor, HHS or EEOC’s BFOQ and RFOA factors, and $100 million or more in any one year.
Education as applicable. The general applying them outside of the If a budgetary impact statement is
reference in § 23.46(a)(2)(ii) to any employment arena could create required, section 205 of the Unfunded
Federal, State, or local government confusion with the ADEA. For these Mandates Act also requires an agency to
agency remains since referrals could be reasons, Treasury decided not to adopt identify and consider a reasonable
made to other agencies as well. the EEOC’s regulations for BFOQ and number of regulatory alternatives before
The commenter suggested that the
RFOA for inclusion in our Age Act promulgating a rule. This rule will not
ADEA be added to the definitions
regulation. result in expenditures by State, local or
section in § 23.4. In response to this
The commenter noted that §§ 23.43(c) tribal governments or by the private
comment, Treasury added the ADEA to
and 23.44(a)(3) discuss mediation sector of $100 million or more.
the definitions section.
The commenter noted that the agreements and, if the settlement Accordingly, the Department has not
Supreme Court held in General purports to include rights under the prepared a budgetary impact statement
Dynamics Land Systems, Inc. v. Cline, ADEA, section 7(f) of the ADEA, 29 or specifically addressed the regulatory
540 U.S. 581, 600 (2004) that ‘‘the U.S.C. 626(f), sets out specific rules for alternatives considered.
[ADEA] does not mean to stop an the waiver of rights and claims under
List of Subjects in 31 CFR Part 23
employer from favoring an older the ADEA. See 29 CFR 1625.22.
employee over a younger one,’’ and Treasury considered this comment, but Aged, Discrimination against aged.
suggested that Treasury consider because the regulations do not cover For the reasons stated in the
whether Cline warrants any revisions to employment, see § 23.3(b)(2)), Treasury preamble, the Department of the
its Age Act regulation. Treasury has does not anticipate settlements will Treasury amends subtitle A of title 31 of
reviewed the statute and case law and include rights under the ADEA and has the CFR by adding part 23 to read as
has concluded that, unlike the ADEA, made no revisions. follows:
the Age Act does not limit its protection IV. Regulatory Procedures
to a specific age group. The Age Act also PART 23—NONDISCRIMINATION ON
provides exceptions from age Executive Order 12866 THE BASIS OF AGE IN PROGRAMS
discrimination requirements for normal This rule is not a ’’significant AND ACTIVITIES RECEIVING
operation or to meet statutory objectives regulatory action’’ under Executive FEDERAL FINANCIAL ASSISTANCE
of any program or activity (see §§ 23.13 Order 12866. Therefore, no regulatory FROM THE DEPARTMENT OF THE
and § 23.14). Therefore, Treasury did impact analysis has been prepared. TREASURY
not adopt any revisions in response to Subpart A—General
Regulatory Flexibility Act
this comment.
Another comment noted that §§ 23.13 Pursuant to the Regulatory Flexibility Sec.
23.1 What is the purpose of the Age
and 23.14 discuss the defenses of 42 Act (5 U.S.C. 601 et seq.), it is hereby Discrimination Act of 1975?
U.S.C. 6103(b)(1) (A) and (B), that the certified that this rule would not have 23.2 What is the purpose of Treasury’s
defense in subparagraph (A) appears to a significant economic impact on a discrimination regulations?
be functionally similar to the ‘‘bona fide substantial number of small entities. 23.3 To what programs does this part
occupational qualification’’ (BFOQ) The rule will clarify existing apply?
defense set out in § 4(f)(1) of the ADEA, requirements for entities receiving 23.4 Definitions of terms used in this part.
29 U.S.C. 623(f)(1), and that the financial assistance from Treasury. The
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Subpart B—Standards for Determining Age
language of the defense in subparagraph requirements prohibiting age Discrimination
(B) is identical to the ‘‘reasonable factors discrimination by recipients of Federal 23.11 Rules against age discrimination.
other than age’’ (RFOA) defense set out financial assistance that are in the Act 23.12 Definitions of ‘‘normal operation’’
in the same ADEA section. The and the government-wide regulations and ‘‘statutory objective.’’
commenter then noted that the EEOC have been in effect since 1979. In 23.13 Exceptions to the rules against age
regulations at 29 CFR 1625.6 and 1625.7 addition, entities receiving financial discrimination: Normal operation or

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recipient extends or passes on Federal § 23.13 Exceptions to the rules against age § 23.18 Age distinctions contained in
financial assistance. A subrecipient is discrimination: Normal operation or Treasury regulations.
generally regarded as a recipient of statutory objective of any program or Any age distinctions contained in a
Federal financial assistance and has all activity.
rule or regulation issued by Treasury
the duties of a recipient in these A recipient is permitted to take an shall be presumed to be necessary to the
regulations. action, otherwise prohibited by § 23.11, achievement of a statutory objective of
Treasury means the United States if the action reasonably takes into the program or activity to which the rule
Department of the Treasury. account age as a factor necessary to the or regulation applies, notwithstanding
normal operation or the achievement of the provisions of § 23.13.
United States means the fifty states, any statutory objective of a program or
the District of Columbia, Puerto Rico, activity. An action reasonably takes into Subpart C—Duties of Treasury
the Virgin Islands, American Samoa, account age as a factor necessary to the Recipients
Guam, Wake Island, the Trust Territory normal operation or the achievement of
of the Pacific Islands, the Northern any statutory objective of a program or § 23.31 General responsibilities.
Marianas, and the territories and activity, if: Each Treasury recipient has primary
possessions of the United States. (a) Age is used as a measure or responsibility to ensure that its
approximation of one or more other programs and activities are in
Subpart B—Standards for Determining
characteristics; and compliance with the Act and these
Age Discrimination
(b) The other characteristic(s) must be regulations, and shall take steps to
§ 23.11 Rules against age discrimination. measured or approximated for the eliminate violations of the Act. A
normal operation of the program or recipient also has responsibility to
The rules stated in this section are
activity to continue, or to achieve any maintain records, provide information,
limited by the exceptions contained in
statutory objective of the program or and afford Treasury access to its records
§§ 23.13 and 23.14.
activity; and to the extent Treasury finds necessary to
(a) General rule. No person in the (c) The other characteristic(s) can be determine whether the recipient is in
United States shall, on the basis of age, reasonably measured or approximated compliance with the Act and these
be excluded from participation in, be by the use of age; and regulations.
denied the benefits of, or be subjected (d) The other characteristic(s) are
to discrimination under, any program or impractical to measure directly on an § 23.32 Notice to subrecipients and
activity receiving Federal financial individual basis. beneficiaries.
assistance. (a) Where a recipient passes on
(b) Specific rules. A recipient may § 23.14 Exceptions to the rules against age Federal financial assistance from
discrimination: Reasonable factors other Treasury to subrecipients, the recipient
not, in any program or activity receiving than age.
Federal financial assistance, directly or shall provide the subrecipients written
through contractual licensing, or other A recipient is permitted to take an notice of their obligations under the Act
arrangements, use age distinctions or action otherwise prohibited by § 23.11 and these regulations.
take any other actions that have the that is based on a factor other than age, (b) Each recipient shall make
effect, on the basis of age, of: even though that action may have a necessary information about the Act and
disproportionate effect on persons of these regulations available to its
(1) Excluding individuals from, different ages. An action may be based
denying them the benefits of, or program beneficiaries to inform them
on a factor other than age only if the about the protections against
subjecting them to discrimination factor bears a direct and substantial
under, a program or activity receiving discrimination provided by the Act and
relationship to the normal operation of these regulations.
Federal financial assistance; or the program or activity or to the
(2) Denying or limiting individuals in achievement of a statutory objective. § 23.33 Assurance of compliance and
their opportunity to participate in any recipient assessment of age distinctions.
program or activity receiving Federal § 23.15 Burden of proof.
(a) Written assurance. Each recipient
financial assistance. The burden of proving that an age of Federal financial assistance from
(c) Non-exhaustive list. The specific distinction or other action falls within Treasury shall sign a written assurance
forms of age discrimination listed in the exceptions outlined in §§ 23.13 and as specified by Treasury that it will
paragraph (b) of this section do not 23.14 is on the recipient of Federal comply with the Act and these
necessarily constitute a complete list. financial assistance. regulations.
§ 23.12 Definitions of ‘‘normal operation’’ § 23.16 Affirmative action by recipient. (b) Recipient assessment of age
and ‘‘statutory objective.’’ Even in the absence of a finding of distinctions. (1) As part of a compliance
discrimination, a recipient may take review under § 23.41 or a complaint
For purposes of §§ 23.13 and 23.14, investigation under § 23.44, Treasury
the terms ‘‘normal operation’’ and affirmative action to overcome the
effects of conditions that resulted in may require a recipient employing the
‘‘statutory objective’’ shall have the equivalent of 15 or more employees to
following meaning: limited participation in the recipient’s
program or activity on the basis of age. complete a written self-evaluation, in a
(a) Normal operation means the manner specified by the responsible
operation of a program or activity § 23.17 Special benefits for children and Department official, of any age
without significant changes that would the elderly. distinction imposed in its program or
impair its ability to meet its objectives. activity receiving Federal financial
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If a recipient’s operation of a program
(b) Statutory objective means any or activity provides special benefits to assistance from Treasury to assess the
purpose of a program or activity the elderly or to children, such use of recipient’s compliance with the Act.
expressly stated in any Federal statute, age distinctions shall be presumed to be (2) Whenever an assessment indicates
State statute, or local statute or necessary to the normal operation of the a violation of the Act or the Treasury
ordinance adopted by an elected, program or activity, notwithstanding the regulations, the recipient shall take
general purpose legislative body. provisions of § 23.13. corrective action.

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§ 23.34 Information requirements. identifies the parties involved and the is filed with Treasury. Mediation ends
Each recipient shall: date the complainant first had if:
(a) Keep records in a form and knowledge of the alleged violation, (i) 60 days elapse from the time the
containing information that Treasury describes generally the action or complaint is filed; or
determines may be necessary to practice complained of, and is signed by (ii) Prior to the end of that 60-day
ascertain whether the recipient is the complainant. period, an agreement is reached; or
complying with the Act and these (2) Freely permitting a complainant to (iii) Prior to the end of that 60-day
regulations. add information to the complaint to period, the mediator determines that an
(b) Provide to Treasury, upon request, meet the requirements of a sufficient agreement cannot be reached.
information and reports that Treasury complaint. (2) This 60-day period may be
determines are necessary to ascertain (3) Notifying the complainant and the extended by the mediator, with the
whether the recipient is complying with recipient of their rights and obligations concurrence of Treasury, for not more
the Act and these regulations. under the complaint procedure, than 30 days if the mediator determines
(c) Permit reasonable access by including the right to have a that agreement likely will be reached
Treasury to the books, records, representative at all stages of the during such extended period.
accounts, and other recipient facilities complaint resolution process. (f) The mediator shall notify Treasury
and sources of information to the extent when mediation is not successful and
(4) Notifying the complainant and the
Treasury determines is necessary to Treasury will continue processing the
recipient (or their representatives) of
ascertain whether the recipient is complaint.
their right to contact Treasury for
complying with the Act and these
information and assistance regarding the § 23.44 Investigation.
regulations.
complaint resolution process.
(a) Informal investigation. (1)
Subpart D—Investigation, Conciliation, (d) Treasury will notify the
Treasury will investigate complaints
and Enforcement Procedures complainant when the complaint falls
that are unresolved after mediation or
outside the jurisdiction of these
§ 23.41 Compliance reviews. are reopened because of a violation of a
regulations, and will state the reason(s)
(a) Treasury may conduct compliance mediation agreement.
why it is outside the jurisdiction of
reviews and pre-award reviews or use (2) As part of the initial investigation,
these regulations.
other similar procedures that will Treasury will use informal fact finding
permit it to investigate and correct § 23.43 Mediation. methods, including joint or separate
violations of the Act and these (a) Treasury will promptly refer to a discussions with the complainant and
regulations. Treasury may conduct these mediation agency designated by the recipient, to establish the facts and, if
reviews even in the absence of a Secretary of the Department of Health possible, settle the complaint on terms
complaint against a recipient. The and Human Services (HHS) all sufficient that are mutually agreeable to the
reviews may be as comprehensive as complaints that: parties. Treasury may seek the
necessary to determine whether a (1) Fall within the jurisdiction of the assistance of any involved State agency.
violation of the Act or these regulations Act and these regulations, unless the age (3) Any settlement agreement will be
has occurred. distinction complained of is clearly put in writing and the parties will sign
(b) If a compliance review or pre- within an exception; and, it.
award review indicates a violation of (4) The settlement shall not affect the
(2) Contain all information necessary
the Act or these regulations, Treasury operation of any other enforcement
for further processing.
will attempt to achieve voluntary effort of Treasury, including compliance
(b) Both the complainant and the
compliance. If voluntary compliance reviews and investigation of other
recipient shall participate in the
cannot be achieved, Treasury will complaints that may involve the
mediation process to the extent
arrange for enforcement as described in recipient.
necessary to reach an agreement or
§ 23.46. (5) The settlement is not a finding of
make an informed judgment that an
discrimination against a recipient.
§ 23.42 Complaints. agreement is not possible. (b) Formal investigation. If Treasury
(a) Any person, individually or as a (c) If the complainant and the cannot resolve the complaint through
member of a class or on behalf of others, recipient reach an agreement, the informal investigation, it will begin to
may file a complaint with Treasury, mediator shall prepare a written develop formal findings through further
alleging discrimination prohibited by statement of the agreement and have the investigation of the complaint. If the
the Act or these regulations based on an complainant and the recipient sign it. investigation indicates a violation of
action occurring on or after July 1, 1979. The mediator shall send a copy of the these regulations, Treasury will attempt
A complainant shall file a complaint agreement to Treasury. Treasury will to obtain voluntary compliance. If
within 180 days from the date the take no further action on the complaint Treasury cannot obtain voluntary
complainant first had knowledge of the unless the complainant or the recipient compliance, it will begin enforcement as
alleged act of discrimination. However, fails to comply with the agreement. described in § 23.46
for good cause shown, Treasury may (d) The mediator shall protect the
extend this time limit. confidentially of all information § 23.45 Prohibition against intimidation or
(b) Treasury will consider the date a obtained in the course of the mediation retaliation.
complaint is filed to be the date upon process. No mediator shall testify in any A recipient may not engage in acts of
which the complaint is sufficient to be adjudicative proceeding, produce any intimidation or retaliation against any
document, or otherwise disclose any
ethrower on DSK3G9T082PROD with RULES

processed. person who:
(c) Treasury will attempt to facilitate information obtained in the course of (a) Attempts to assert a right protected
the filing of complaints wherever the mediation process without prior by the Act or these regulations; or
possible, including taking the following approval of the head of the mediation (b) Cooperates in any mediation,
measures: agency. investigation, hearing, or other part of
(1) Accepting as a sufficient (e)(1) The mediation will proceed for Treasury’s investigation, conciliation,
complaint any written statement that a maximum of 60 days after a complaint and enforcement process.

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Document Created: 2018-10-25 09:59:32
Document Modified: 2018-10-25 09:59:32
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 November 13, 2017.
Contact		Mariam G. Harvey, Director, Office of Civil Rights and Diversity, Department of the Treasury, (202) 622-0316 (voice).
FR Citation		82 FR 47107
RIN Number		1505-AC51
CFR Associated		Aged and Discrimination Against Aged