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Electronic Code of Federal Regulations

e-CFR Data is current as of August 19, 2014

Title 29Subtitle A → Part 34


Title 29: Labor


PART 34—IMPLEMENTATION OF THE NONDISCRIMINATION AND EQUAL OPPORTUNITY REQUIREMENTS OF THE JOB TRAINING PARTNERSHIP ACT OF 1982, AS AMENDED (JTPA)


Contents

Subpart A—General Provisions

§34.1   Purpose; application.
§34.2   Definitions.
§34.3   Discrimination prohibited.
§34.4   Specific discriminatory actions prohibited on the ground of race, color, religion, sex, national origin, age, political affiliation or belief, citizenship, or participation in JTPA.
§34.5   Specific discriminatory actions prohibited on the ground of disability.
§34.6   Communications with individuals with disabilities.
§34.7   Employment practices.
§34.8   Intimidation and retaliation prohibited.
§34.9   Designation of responsible office; rulings and interpretations.
§34.10   [Reserved]
§34.11   Effect of other obligations or limitations.
§34.12   Delegation and coordination.

Subpart B—Recordkeeping and Other Affirmative Obligations of Recipients

§34.20   Assurance required; duration of obligation; covenants.
§34.21   Equitable services.
§34.22   Designation of Equal Opportunity Officer.
§34.23   Dissemination of policy.
§34.24   Data and information collection; confidentiality.

Subpart C—Governor's Responsibilities To Implement the Nondiscrimination and Equal Opportunity Requirements of JTPA

§34.30   Application.
§34.31   Recordkeeping.
§34.32   Oversight and liability.
§34.33   Methods of Administration.
§34.34   Monitoring.

Subpart D—Compliance Procedures

§34.40   Compliance reviews.
§34.41   Notice to Show Cause.
§34.42   Adoption of discrimination complaint processing procedures.
§34.43   Complaints and investigations.
§34.44   Corrective and remedial action.
§34.45   Notice of violation; written assurances; Conciliation Agreements.
§34.46   Final Determination.
§34.47   Notice of finding of noncompliance.
§34.48   Notification of Breach of Conciliation Agreement.

Subpart E—Federal Procedures For Effecting Compliance

§34.50   General.
§34.51   Hearings.
§34.52   Decision and post-termination proceedings.
§34.53   Suspension, termination, denial or discontinuance of Federal financial assistance under JTPA; alternate funds disbursal procedure.

Authority: 20 U.S.C. 1681; 29 U.S.C. 794, 1501, 1551, 1573, 1574, 1575, 1576, 1577, 1578, 1579; 42 U.S.C. 2000d et seq., 6101.

Source: 58 FR 4750, Jan. 15, 1993, unless otherwise noted.

Subpart A—General Provisions

§34.1   Purpose; application.

(a) Purpose. The purpose of this part is to implement the nondiscrimination and equal opportunity provisions of the Job Training Partnership Act of 1982, as amended (JTPA), which are contained in section 167 of JTPA. Section 167 prohibits discrimination on the grounds of race, color, religion, sex, national origin, age, disability, political affiliation or belief, and for beneficiaries only, citizenship or participation in JTPA. This part clarifies the application of the nondiscrimination and equal opportunity provisions of JTPA and provides uniform procedures for implementing them.

(b) Application of this part. This part applies to any recipient, as defined in §34.2. This part also applies to the employment practices of a recipient, as provided in §34.7.

(c) Effect of this part on other obligations. (1) A recipient's compliance with this part shall satisfy any obligation of the recipient to comply with 29 CFR part 31, implementing title VI of the Civil Rights Act of 1964, as amended (title VI), and with subparts A, D and E of 29 CFR part 32, implementing section 504 of the Rehabilitation Act of 1973, as amended (section 504).

(2) However, compliance with this part shall not affect any obligation of the recipient to comply with subparts B and C and appendix A of 29 CFR part 32, which pertain to employment practices and employment-related training, program accessibility, and accommodations under section 504.

(3) Recipients that are also public entities or public accommodations as defined by titles II and III of the Americans with Disabilities Act of 1991 (ADA), should be aware of obligations imposed pursuant to those titles.

(4) Compliance with this part does not affect, in any way, any obligation that a recipient may have to comply with Executive Order 11246, as amended, section 503 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 793), the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212), the Equal Pay Act of 1963, as amended (29 U.S.C. 206d), title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act of 1967, as amended (29 U.S.C. 621), title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681), the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. 12101 et seq.) and their respective implementing regulations.

(5) This rule does not preempt consistent State and local requirements.

(6) The rule generally codifies and consolidates already existing nondiscrimination and equal opportunity requirements. However, to the extent that this rule imposes any new requirements, it is not intended to have retroactive effect.

(d) Limitation of Application. This part does not apply to:

(1) Programs or activities funded by the Department exclusively under laws other than JTPA;

(2) Contracts of insurance or guaranty;

(3) Federal financial assistance to a person who is the ultimate beneficiary under any program;

(4) Federal procurement contracts, with the exception of contracts to operate or provide services to Job Corps Centers; and

(5) Federally-operated Job Corps Centers. The operating Department is responsible for enforcing the nondiscrimination and equal opportunity laws to which such Centers are subject.

§34.2   Definitions.

As used in this part, the term:

Administrative Law Judge means a person appointed as provided in 5 U.S.C. 3105 and 5 CFR 930.203 and qualified under 5 U.S.C. 557 to preside at hearings held under the nondiscrimination and equal opportunity provisions of JTPA and this part.

Applicant means the person or persons seeking JTPA services who have filed a completed application and for whom a formal eligibility determination has been made. For State Employment Security Agency (SESA) programs, applicant means the person or persons who make(s) application to receive benefits or services from the State employment service agency or the State unemployment compensation agency. See also the definitions of eligible applicant and participant in this section.

Applicant for employment means the person or persons who make(s) application for employment with a recipient of Federal financial assistance under JTPA.

Application for assistance means the process by which required documentation is provided to the Governor, recipient, or Department prior to and as a condition of receiving Federal financial assistance under JTPA (including both new and continuing assistance).

Application for benefits means the process by which written information is provided by applicants or eligible applicants prior to and as a condition of receiving benefits or services from a recipient of financial assistance from the Department of Labor under JTPA.

Assistant Attorney General means the Assistant Attorney General, Civil Rights Division, United States Department of Justice.

Assistant Secretary means the Assistant Secretary for Administration and Management, United States Department of Labor.

Auxiliary aids or services includes—

(1) Qualified interpreters, notetakers, transcription services, written materials, telephone handset amplifiers, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDDs), videotext displays, or other effective means of making aurally delivered materials available to individuals with hearing impairments;

(2) Qualified readers, taped texts, audio recordings, brailled materials, large print materials, or other effective means of making visually delivered materials available to individuals with visual impairments;

(3) Acquisition or modification of equipment or devices; and

(4) Other similar services and actions.

Beneficiary means the person or persons intended by Congress to receive benefits or services from a recipient of Federal financial assistance under JTPA.

Citizenship: See Discrimination on the ground of citizenship.

Department means the U.S. Department of Labor (DOL), including its agencies and organizational units.

Director means the Director, Directorate of Civil Rights (DCR), Office of the Assistant Secretary for Administration and Management, U.S. Department of Labor, or a designee authorized to act for the Director.

Directorate means the Directorate of Civil Rights (DCR), Office of the Assistant Secretary for Administration and Management, U.S. Department of Labor.

Disability means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.

(1)(i) The phrase physical or mental impairment means—

(A) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine;

(B) Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

(ii) The phrase physical or mental impairment includes, but is not limited to, such contagious and noncontagious diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism. The term impairment does not include homosexuality or bisexuality.

(2) The phrase major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

(3) The phrase has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

(4) The phrase is regarded as having an impairment means—

(i) Has a physical or mental impairment that does not substantially limit major life activities but that is treated by the recipient as constituting such a limitation;

(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or

(iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by the recipient as having such an impairment.

(5) Consistent with amendments to the Rehabilitation Act of 1973 and to the JTPA, and with the ADA, this part uses the term disability in place of the term handicap. The two terms are intended to have identical meanings.

Discrimination on the ground of citizenship means a denial of participation in programs or activities financially assisted in whole or in part under JTPA to persons on the basis of their status as citizens or nationals of the United States, lawfully admitted permanent resident aliens, lawfully admitted refugees and parolees, or other individuals authorized by the Attorney General to work in the United States.

Eligible applicant means an applicant who has been determined eligible to participate in one or more titles under JTPA.

Entity means any corporation, partnership, joint venture, unincorporated association, or State or local government, and any agency, instrumentality or subdivision of such a government.

Facility means all or any portion of buildings, structures, equipment, roads, walks, parking lots, rolling stock, or other real or personal property or interest in such property.

Federal financial assistance under JTPA means any grant, cooperative agreement, loan, contract; any subgrant made with a recipient of a grant or subcontract made pursuant to a JTPA contract; or any other arrangement by which the Department provides or otherwise makes available assistance under JTPA in the form of:

(1) Funds, including funds made available for the acquisition, construction, renovation, restoration or repair of a building or facility or any portion thereof;

(2) Services of Federal personnel; or

(3) Real or personal property or any interest in or use of such property, including:

(i) Transfers or leases of such property for less than fair market value or for reduced consideration;

(ii) Proceeds from a subsequent transfer or lease of such property if the Federal share of its fair market value is not returned to the Federal Government; or

(iii) Any other thing of value by way of grant, loan, contract, or cooperative agreement (other than a procurement contract or a contract of insurance or guaranty).

Governor means the chief elected official of any State or his or her designee.

Grant applicant means the entity which submits the required documentation to the Governor, recipient, or the Department, prior to and as a condition of receiving Federal financial assistance under JTPA.

Guideline means written informational material supplementing an agency's regulations and provided to grant applicants and recipients to provide program-specific interpretations of their responsibilities under the regulations.

Illegal use of drugs means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act. Illegal use of drugs does not include the use of a drug taken under supervision of a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.

Individual with a disability means a person who has a disability, as defined in this section. The term impairment does not include homosexuality or bisexuality; therefore, the term individual with a disability does not include an individual on the basis of homosexuality or bisexuality.

(1) The term individual with a disability does not include an individual on the basis of:

(i) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;

(ii) Compulsive gambling, kleptomania, or pyromania; or

(iii) Psychoactive substance use disorders resulting from current illegal use of drugs.

(2) The term individual with a disability also does not include an individual who is currently engaging in the illegal use of drugs, when a recipient acts on the basis of such use. This limitation should not be construed to exclude as an individual with a disability an individual who:

(i) Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;

(ii) Is participating in a supervised rehabilitation program and is no longer engaging in such use; or

(iii) Is erroneously regarded as engaging in such use, but is not engaging in such use, except that it shall not be a violation of the nondiscrimination and equal opportunity provisions of JTPA or this part for a recipient to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in paragraph (2)(i) or (2)(ii) of this definition is no longer engaging in the illegal use of drugs.

(3) With regard to employment, the term individual with a disability does not include any individual who is an alcoholic whose current use of alcohol prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol abuse, would constitute a direct threat to property or the safety of others.

JTPA means the Job Training Partnership Act of 1982, as amended, Public Law 97-300, 96 Stat. 1322 (29 U.S.C. 1501 et seq.), including the Nontraditional Employment for Women Act of 1991, Public Law 102-235, 105 Stat. 1806 (29 U.S.C. 1501), and the Job Training Reform Amendments of 1992, Public Law 102-367, 106 Stat. 1021.

JTPA-funded program or activity means a program or activity, operated by a recipient and funded under JTPA, for the provision of services, financial aid, or other benefit to individuals (including but not limited to education or training, health, welfare, housing, social service, rehabilitation or other services, whether provided through employees of the recipient or by others through contract or other arrangements with the recipient, and including work opportunities and cash, loan or other assistance to individuals), or for the provision of facilities for furnishing services, financial aid, or other benefits to individuals. It also includes services, financial aid, or other benefits provided in facilities constructed with the aid of Federal financial assistance under JTPA. It further includes services, financial aid, or other benefits provided with the aid of any non-JTPA funds, property, or other resources required to be expended or made available for the program to meet matching requirements or other conditions which must be met in order to receive the Federal financial assistance under JTPA.

Methods of Administration means the written document and supporting documentation developed pursuant to §34.33.

National Programs means programs receiving Federal funds under JTPA directly from the Department. Such programs include, but are not limited to, programs funded under title IV of JTPA, such as the Migrant and Seasonal Workers Programs, Native Americans Programs, Job Corps, National Activities and such Veterans' Employment programs as are funded by the Department. National programs also includes programs funded under certain titles of the Nontraditional Employment for Women Act.

Noncompliance means a failure of a recipient to comply with any of the applicable requirements of the nondiscrimination and equal opportunity provisions of JTPA or this part.

Participant means an individual who has been determined to be eligible to participate in and who is receiving services (except post-termination and follow-up services) under a program authorized by JTPA. Participation shall be deemed to commence on the first day, following determination of eligibility, on which the participant began receiving subsidized employment, training, or other services provided under JTPA.

Parties to a hearing means the Department and the grant applicant(s) or recipient(s).

Prohibited ground means any basis upon which it is illegal to discriminate under the nondiscrimination and equal opportunity provisions of JTPA or this part, i.e., race, color, religion, sex, national origin, age, disability, political affiliation or belief, and, for beneficiaries only, citizenship or participation in JTPA.

Qualified individual with a disability means:

(1) With respect to employment, an individual with a disability who, with or without reasonable accommodation, is capable of performing the essential functions of the job in question;

(2) With respect to services, an individual with a disability who meets the essential eligibility requirements for the receipt of such services;

(3) With respect to employment and employment-related training programs, an individual with a disability who meets the eligibility requirements for participation in JTPA and who, with or without reasonable accommodation, is capable of performing the essential functions of the job or meets the qualifications of the training program, as applicable.

Recipient means any entity to which Federal financial assistance under any title of JTPA is extended, either directly or through the Governor or through another recipient (including any successor, assignee, or transferee of a recipient), but excluding the ultimate beneficiaries of the JTPA-funded program or activity and the Governor. Recipient includes, but is not limited to: Job Corps Centers and Center operators (excluding federally-operated Job Corps Centers), State Employment Security Agencies, State-level agencies that administer JTPA funds, SDA grant recipients, Substate grant recipients and service providers, as well as National Program recipients.

Respondent means the grant applicant or recipient against which a complaint has been filed pursuant to the nondiscrimination and equal opportunity provisions of JTPA or this part.

SDA grant recipient means the entity that receives JTPA funds for a service delivery area (SDA) directly from the Governor.

Secretary means the Secretary of Labor, U.S. Department of Labor, or his or her designee.

Service provider means the operator of any JTPA-funded program or activity that receives funds from or through an SDA grant recipient or a Substate grantee.

Small recipient means a recipient who serves fewer than 15 beneficiaries, and employs fewer than 15 employees at all times during a grant year.

Solicitor means the Solicitor of Labor, U.S. Department of Labor, or his or her designee.

State means the individual states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Commonwealth of the Northern Mariana Islands, the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau.

State Employment Security Agency (SESA) means the State agency which, under the State Administrator, contains both the State Employment Service agency (State agency) and the State unemployment compensation agency.

State Programs means programs funded in whole or in part under JTPA wherein the Governor and/or State receives and disburses the grant to or through SDA grant recipients or Substate grantees. Such programs include but are not limited to those programs funded in whole or in part under titles II or III of JTPA. State programs also includes State Employment Security Agencies.

Substate grantee means that agency or organization selected to administer programs pursuant to section 312(b) of JTPA. The Substate grantee is the entity that receives title III funds for a substate area directly from the Governor.

Terminee means a participant terminating during the applicable program year.

§34.3   Discrimination prohibited.

No individual in the United States shall, on the ground of race, color, religion, sex, national origin, age, disability, political affiliation or belief, and for beneficiaries only, citizenship or participation in JTPA, be excluded from participation in, denied the benefits of, subjected to discrimination under, or denied employment in the administration of or in connection with any JTPA-funded program or activity.

§34.4   Specific discriminatory actions prohibited on the ground of race, color, religion, sex, national origin, age, political affiliation or belief, citizenship, or participation in JTPA.

(a) For the purposes of this section, prohibited ground means race, color, religion, sex, national origin, age, political affiliation or belief, and for beneficiaries only, citizenship or participation in JTPA. A recipient shall not, directly or through contractual, licensing, or other arrangements, on a prohibited ground:

(1) Deny an individual any service, financial aid, or benefit provided under the JTPA-funded program or activity;

(2) Provide any service, financial aid, or benefit to an individual which is different, or is provided in a different manner, from that provided to others under the JTPA-funded program or activity;

(3) Subject an individual to segregation or separate treatment in any matter related to his or her receipt of any service, financial aid, or benefit under the JTPA-funded program or activity;

(4) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or benefit under the JTPA-funded program or activity;

(5) Treat an individual differently from others in determining whether he or she satisfies any admission, enrollment, eligibility, membership, or other requirement or condition for any service, financial aid, function or benefit provided under the JTPA-funded program or activity;

(6) Deny or limit an individual with respect to any opportunity to participate in the JTPA-funded program or activity, or afford him or her an opportunity to do so which is different from that afforded others under the JTPA-funded program or activity;

(7) Deny an individual the opportunity to participate as a member of a planning or advisory body which is an integral part of the JTPA-funded program or activity;

(8) Aid or perpetuate discrimination by providing significant assistance to an agency, organization, or person that discriminates on a prohibited ground in providing any service, financial aid, or benefit to applicants or participants in the JTPA-funded program or activity;

(9) Refuse to accommodate a person's religious practices or beliefs, unless to do so would result in undue hardship; or

(10) Otherwise limit on a prohibited ground an individual in enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving any aid, benefit, service, or training.

(b) In determining the types of services, financial aid or other benefits or facilities that will be provided under any JTPA-funded program or activity, or the class of individuals to whom or the situations in which such services, financial aid, or other benefits or facilities will be provided, a recipient shall not use, directly or through contractual, licensing, or other arrangements, standards, procedures or criteria that have the purpose or effect of subjecting individuals to discrimination on a prohibited ground or that have the purpose or effect of defeating or substantially impairing, on a prohibited ground, accomplishment of the objectives of the JTPA-funded program or activity. This paragraph applies to the administration of JTPA- funded programs or activities providing services, financial aid, benefits or facilities in any manner, including, but not limited to, recruitment, registration, counseling, testing, guidance, selection, placement, appointment, training, referral, promotion and retention.

(c) In determining the site or location of facilities, a grant applicant or recipient may not make selections with the purpose or effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination on a prohibited ground, or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the program, or the nondiscrimination and equal opportunity provisions of JTPA or this part.

(d) The exclusion of an individual from programs or activities limited by Federal statute or Executive Order to a certain class or classes of individuals of which the individual in question is not a member is not prohibited by this part.

§34.5   Specific discriminatory actions prohibited on the ground of disability.

(a) In providing any aid, benefit, service or training under a JTPA-funded program or activity, a recipient shall not, directly or through contractual, licensing, or other arrangements, on the ground of disability:

(1) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, service or training;

(2) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, service or training that is not equal to that afforded others;

(3) Provide a qualified individual with a disability with an aid, benefit, service or training that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;

(4) Provide different or separate aid, benefits, or services to individuals with disabilities or to any class of individuals with disabilities unless such action is necessary to provide qualified individuals with disabilities with aid, benefits, services or training that are as effective as those provided to others;

(5) Aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, service or training to participants;

(6) Deny a qualified individual with a disability the opportunity to participate as a member of planning or advisory boards;

(7) Otherwise limit a qualified individual with a disability in enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving any aid, benefit, service or training.

(b) A recipient may not deny a qualified individual with a disability the opportunity to participate in JTPA-funded programs or activities despite the existence of permissibly separate or different programs or activities.

(c) A recipient shall administer JTPA-funded programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.

(d) A recipient may not, directly or through contractual or other arrangements, utilize criteria or administrative methods:

(1) That have the effect of subjecting qualified individuals with disabilities to discrimination on the ground of disability;

(2) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the JTPA-funded program or activity with respect to individuals with disabilities; or

(3) That perpetuate the discrimination of another entity if both entities are subject to common administrative control or are agencies of the same state.

(e) In determining the site or location of facilities, a grant applicant or recipient may not make selections with the purpose or effect of excluding individuals with disabilities from, denying them the benefits of, or otherwise subjecting them to discrimination under any JTPA-funded program or activity, or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the JTPA-funded program or activity or this part with respect to individuals with disabilities.

(f) As used in this section, references to the aid, benefit, service or training provided under a JTPA-funded program or activity include any aid, benefit, service or training provided in or through a facility that has been constructed, expanded, altered, leased, rented, or otherwise acquired, in whole or in part, with Federal financial assistance under JTPA.

(g) The exclusion of an individual without a disability from the benefits of a program limited by Federal statute or Executive Order to individuals with disabilities or the exclusion of a specific class of individuals with disabilities from a program limited by Federal statute or Executive Order to a different class of individuals with disabilities is not prohibited by this part.

(h) This part does not require a recipient to provide to individuals with disabilities: personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; readers for personal use or study; or services of a personal nature including assistance in eating, toileting, or dressing.

§34.6   Communications with individuals with disabilities.

(a) Recipients shall take appropriate steps to ensure that communications with beneficiaries, applicants, eligible applicants, participants, applicants for employment, employees and members of the public who are individuals with disabilities, are as effective as communications with others.

(b) A recipient shall furnish appropriate auxiliary aids or services where necessary to afford individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of, the JTPA-funded program or activity. In determining what type of auxiliary aid or service is necessary, such recipient shall give primary consideration to the requests of the individual with a disability.

(c) Where a recipient communicates with beneficiaries, applicants, eligible applicants, participants, applicants for employment and employees by telephone, telecommunications devices for individuals with hearing impairments (TDDs), or equally effective communications systems shall be used.

(d) A recipient shall ensure that interested persons, including persons with visual or hearing impairments, can obtain information as to the existence and location of accessible services, activities, and facilities.

(e) A recipient shall provide signage at a primary entrance to each of its inaccessible facilities, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.

(f) This section does not require a recipient to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.

(1) In those circumstances where a recipient believes that the proposed action would fundamentally alter the JTPA-funded program, activity, or service, or would result in undue financial and administrative burdens, such recipient has the burden of proving that compliance with this section would result in such alteration or burdens.

(2) The decision that compliance would result in such alteration or burdens must be made by the recipient after considering all resources available for use in the funding and operation of the JTPA-funded program, activity, or service and must be accompanied by a written statement of the reasons for reaching that conclusion.

(3) If an action required to comply with this section would result in such an alteration or such burdens, the recipient shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the benefits or services provided by the recipient.

§34.7   Employment practices.

(a) As used in this part, the term “employment practices” includes, but is not limited to, recruitment or recruitment advertising, selection, placement, layoff or termination, upgrading, demotion or transfer, training, participation in upward mobility programs, rates of pay or other forms of compensation, and use of facilities and other terms and conditions of employment.

(b) Discrimination on the ground of race, color, religion, sex, national origin, age, disability, or political affiliation or belief is prohibited in employment practices in the administration of, or in connection with, any JTPA-funded program or activity.

(c) Employee selection procedures. In implementing this section, a recipient shall comply with the Uniform Guidelines on Employee Selection Procedures, 41 CFR part 60-3.

(d) Standards for employment-related investigations and reviews. In any investigation or compliance review, the Director shall consider EEOC regulations, guidelines and appropriate case law in determining whether a recipient has engaged in an unlawful employment practice.

(e) As provided in §34.1(c)(2) of this part, this rule does not affect in any way the obligation of recipients to comply with subparts B and C and appendix A of 29 CFR part 32, implementing the requirements of section 504 pertaining to employment practices and employment-related training, program accessibility, and accommodations. Therefore, this section should not be understood to constitute an exhaustive list of employment-related nondiscrimination and equal opportunity obligations on the ground of disability.

(f) Recipients that are also employers covered by titles I and II of the ADA should be aware of obligations imposed pursuant to those titles. See 29 CFR part 1630 and 28 CFR part 35.

(g) This rule does not preempt consistent State and local requirements.

§34.8   Intimidation and retaliation prohibited.

A recipient shall not discharge, intimidate, retaliate, threaten, coerce or discriminate against any person because such person has: filed a complaint; opposed a prohibited practice; furnished information; assisted or participated in any manner in an investigation, review, hearing or any other activity related to administration of, or exercise of authority under, or privilege secured by, the nondiscrimination and equal opportunity provisions of JTPA or this part; or otherwise exercised any rights and privileges under the nondiscrimination and equal opportunity provisions of JTPA or this part. The sanctions and penalties contained in section 167 of JTPA or this part may be imposed against any recipient that engages in any such proscribed activity or fails to take appropriate steps to prevent such activity.

§34.9   Designation of responsible office; rulings and interpretations.

(a) The Directorate of Civil Rights (DCR), in the Office of the Assistant Secretary for Administration and Management, is responsible for administering and enforcing the nondiscrimination and equal opportunity provisions of JTPA and this part and for developing and issuing policies, standards, guidelines and procedures for effecting compliance.

(b) The Director shall make any rulings under or interpretations of the nondiscrimination and equal opportunity provisions of JTPA or this part.

§34.10   [Reserved]

§34.11   Effect of other obligations or limitations.

(a) Effect of State or local law or other requirements. The obligation to comply with the nondiscrimination and equal opportunity provisions of JTPA or this part shall not be obviated or alleviated by any State or local law or other requirement that, on a prohibited ground, prohibits or limits an individual's eligibility to receive services, compensation or benefits, to participate in any JTPA-funded program or activity, or to be employed by any recipient, or to practice any occupation or profession.

(b) Effect of private organization rules. The obligation to comply with the nondiscrimination and equal opportunity provisions of JTPA and this part shall not be obviated or alleviated by any rule or regulation of any private organization, club, league or association that, on a prohibited ground, prohibits or limits an individual's eligibility to participate in any JTPA-funded program or activity to which this part applies.

(c) Effect of the availability of employment opportunities. The availability of future employment opportunities, or lack thereof, in any occupation or profession for qualified individuals with disabilities or persons of a certain race, color, religion, sex, national origin, age, political affiliation or belief, or citizenship shall not be considered in recruiting, selecting or placing individuals in programs or activities.

§34.12   Delegation and coordination.

(a) The Secretary may from time to time assign to officials of other departments or agencies of the Government (with the consent of such department or agency) responsibilities in connection with the effectuation of the nondiscrimination and equal opportunity provisions of JTPA and this part (other than responsibility for final decisions pursuant to §34.42), including the achievement of effective coordination and maximum uniformity within the Department and within the executive branch of the Government in the application of the nondiscrimination and equal opportunity provisions of JTPA or this part to similar programs and similar situations.

(b) 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 subsection shall have the same effect as though such action had been taken by the Director.

(c) Whenever a compliance review or complaint investigation under this part reveals possible violation of Executive Order 11246, as amended, section 503 of the Rehabilitation Act of 1973, as amended, the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212), the Equal Pay Act of 1963, as amended, title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, the Americans With Disabilities Act, or any other Federal civil rights law, that is not also a violation of the nondiscrimination and equal opportunity provisions of JTPA or this part, the Director shall attempt to notify the appropriate agency and provide it with all relevant documents and information.

Subpart B—Recordkeeping and Other Affirmative Obligations of Recipients

§34.20   Assurance required; duration of obligation; covenants.

(a) Assurance. (1) Each application for Federal financial assistance under JTPA, as defined in §34.2, shall include an assurance, in the following form, with respect to the operation of the JTPA-funded program or activity and all agreements or arrangements to carry out the JTPA-funded program or activity:

As a condition to the award of financial assistance under JTPA from the Department of Labor, the grant applicant assures, with respect to operation of the JTPA-funded program or activity and all agreements or arrangements to carry out the JTPA-funded program or activity, that it will comply fully with the nondiscrimination and equal opportunity provisions of the Job Training Partnership Act of 1982, as amended (JTPA), including the Nontraditional Employment for Women Act of 1991; title VI of the Civil Rights Act of 1964, as amended; section 504 of the Rehabilitation Act of 1973, as amended; the Age Discrimination Act of 1975, as amended; title IX of the Education Amendments of 1972, as amended; and with all applicable requirements imposed by or pursuant to regulations implementing those laws, including but not limited to 29 CFR part 34. The United States has the right to seek judicial enforcement of this assurance.

(2) The assurance shall be deemed incorporated by operation of law in the grant, cooperative agreement, contract or other arrangement whereby Federal financial assistance under JTPA is made available, whether or not it is physically incorporated in such document and whether or not there is a written agreement between the Department and the recipient, between the Department and the Governor, between the Governor and the recipient, or between recipients. The assurance may also be incorporated by reference in such grants, cooperative agreements, contracts or other arrangements.

(b) Continuing State programs. Each application by a State or a State agency to carry out a continuing JTPA-funded program or activity shall, as a condition to its approval and the extension of any Federal financial assistance under JTPA pursuant to the application, provide a statement that the JTPA-funded program or activity is (or, in the case of a new JTPA-funded program or activity, will be) conducted in compliance with the nondiscrimination and equal opportunity provisions of JTPA and this part. The State shall certify that it has developed and maintains a Methods of Administration pursuant to §34.33.

(c) Duration and scope of obligation. (1) Where the Federal financial assistance under JTPA 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 Federal financial assistance under JTPA is extended, or for as long as the recipient retains ownership or possession of the property, whichever is longer.

(2) In all other cases, the assurance shall obligate the recipient for the period during which Federal financial assistance under JTPA is extended.

(d) Covenants. (1) Where Federal financial assistance under JTPA is provided in the form of a transfer of real property, structures, or improvements thereon, or interests therein, the instrument effecting or recording the transfer shall contain a covenant assuring nondiscrimination and equal opportunity for the period during which the real property is used for a purpose for which the Federal financial assistance under JTPA is extended.

(2) Where no Federal transfer of real property or interest therein from the Federal Government is involved, but real property or an interest therein is acquired or improved under a program of Federal financial assistance under JTPA, the recipient shall include such covenant described in paragraph (d)(1) of this section in the instrument effecting or recording any subsequent transfer of such property.

(3) When the property is obtained from the Federal Government, such covenant described in paragraph (d)(1) of this section may also include a condition coupled with a right of reverter to the Department in the event of a breach of the covenant.

§34.21   Equitable services.

Recipients shall make efforts to provide equitable services among substantial segments of the population eligible for participation in JTPA. Such efforts shall include but not be limited to outreach efforts to broaden the composition of the pool of those considered for participation, to include members of both sexes, the various race/ethnicity and age groups, and individuals with disabilities.

§34.22   Designation of Equal Opportunity Officer.

(a) A recipient, other than a small recipient or service provider as defined in §34.2, shall designate an Equal Opportunity Officer to coordinate its responsibilities under this part. Such responsibilities include, but are not limited to, serving as the recipient's liaison with the Directorate and overseeing the development and implementation of the Methods of Administration pursuant to §34.33. The Equal Opportunity Officer shall report on equal opportunity matters directly to the State JTPA Director, Governor's JTPA Liaison, Job Corps Center Director, SESA Administrator, or chief executive officer of the SDA or substate grant recipient, as applicable. The Director may require the Equal Opportunity Officer and his or her staff to undergo training, the expenses of which shall be the responsibility of the recipient. The recipient shall make public the name, title of position, address and telephone number of the Equal Opportunity Officer.

(b) Recipients shall assign sufficient staff and resources to the Equal Opportunity Officer to ensure compliance with the nondiscrimination and equal opportunity provisions of JTPA and this part.

(c) Small recipients shall designate an individual responsible for the adoption and publication of complaint procedures and the processing of complaints pursuant to §34.42.

(d) Service providers as defined by §34.2 shall not be required to designate an Equal Opportunity Officer. The responsibility for ensuring service provider compliance with the nondiscrimination and equal opportunity provisions of JTPA and this part shall rest with the Governor, SDA grant recipient or Substate grantee, as provided in the State's Methods of Administration.

§34.23   Dissemination of policy.

(a) Initial and Continuing Notice. (l) A recipient shall provide initial and continuing notice that it does not discriminate on any prohibited ground, to: Applicants, eligible applicants, participants, applicants for employment, employees, and members of the public, including those with impaired vision or hearing, and unions or professional organizations holding collective bargaining or professional agreements with the recipient.

(2) The notice requirement imposed pursuant to paragraph (a)(1) of this section requires, at a minimum, that the notice specified in paragraph (a)(5) of this section be: posted prominently, in reasonable numbers and places; disseminated in internal memoranda and other written communications; included in handbooks or manuals; and made available to each participant and made a part of the participant's file. The required notice to the public applicable to generally-distributed publications is contained in paragraph (b) of this section.

(3) The recipient shall provide that the initial and continuing notice required by paragraph (a) of this section be provided in appropriate formats to individuals with visual impairments. Where notice has been given in an alternate format to a participant with a visual impairment, a record that such notice has been given shall be made a part of the participant's file.

(4) The notice required by paragraph (a) of this section must be provided within 90 days of the effective date of this part or of the date this part first applies to the recipient, whichever comes later.

(5) The notice required by paragraph (a) of this section shall contain the following prescribed language:

Equal Opportunity Is the Law

This recipient is prohibited from discriminating on the ground of race, color, religion, sex, national origin, age, disability, political affiliation or belief, and for beneficiaries only, citizenship or participation in programs funded under the Job Training Partnership Act, as amended (JTPA), in admission or access to, opportunity or treatment in, or employment in the administration of or in connection with, any JTPA-funded program or activity. If you think that you have been subjected to discrimination under a JTPA-funded program or activity, you may file a complaint within 180 days from the date of the alleged violation with the recipient's Equal Opportunity Officer (or the person designated for this purpose), or you may file a complaint directly with the Director, Directorate of Civil Rights (DCR), U.S. Department of Labor, 200 Constitution Avenue NW., room N-4123, Washington, DC 20210. If you elect to file your complaint with the recipient, you must wait until the recipient issues a decision or until 60 days have passed, whichever is sooner, before filing with DCR (see address above). If the recipient has not provided you with a written decision within 60 days of the filing of the complaint, you need not wait for a decision to be issued, but may file a complaint with DCR within 30 days of the expiration of the 60-day period. If you are dissatisfied with the recipient's resolution of your complaint, you may file a complaint with DCR. Such complaint must be filed within 30 days of the date you received notice of the recipient's proposed resolution.

(6) The Governor, the SDA grant recipient or the Substate grantee, as determined by the Governor in that State's Methods of Administration, shall be responsible for meeting the notice requirement of paragraph (a) of this section with respect to its service providers.

(7) Recipient's responsibility to provide notice. Whenever a recipient passes on Federal financial assistance under JTPA to another recipient, the recipient passing on such assistance shall provide the recipient receiving the assistance with the notice prescribed in paragraph (a)(5) of this section.

(b) Publications. (1) In recruitment brochures and other materials which are ordinarily distributed to the public to describe programs funded under JTPA or the requirements for participation by recipients and participants, recipients shall indicate that the JTPA-funded program or activity in question is an “equal opportunity employer/program” and that “auxiliary aids and services are available upon request to individuals with disabilities.” Where such materials indicate that the recipient may be reached by telephone, the materials shall state the telephone number of the TDD or relay service used by the recipient, as required by §34.6.

(2) Recipients required by law or regulation to publish or broadcast program information in the news media shall ensure that such publications and broadcasts state that the JTPA-funded program or activity in question is an equal opportunity employer/program (or otherwise indicate that discrimination in the JTPA-funded program or activity is prohibited by Federal law), and indicate that auxiliary aids and services are available upon request to individuals with disabilities.

(3) A recipient shall not use or distribute a publication of the type described in paragraph (b) of this section which suggests, by text or illustration, that such recipient treats beneficiaries, applicants, participants, employees or applicants for employment differently on any prohibited ground specified in §34.1(a), except as such treatment is otherwise permitted under Federal law or this part.

(c) Services or information in a language other than English. A significant number or proportion of the population eligible to be served or likely to be directly affected by a JTPA-funded program or activity may need service or information in a language other than English in order that they be effectively informed of or able to participate in the JTPA-funded program or activity. In such circumstances, the recipient shall take reasonable steps, considering the scope of the program and the size and concentration of such population, to provide to such persons, in appropriate languages, the information needed; the initial and continuing notice required pursuant to paragraph (a) of this section; and such written materials as are distributed pursuant to paragraph (b) of this section.

(d) Orientation. The recipient shall, during each presentation to orient new participants and/or new employees to its JTPA-funded program or activity, include a discussion of participants' and/or employees' rights under the nondiscrimination and equal opportunity provisions of JTPA and this part, including the right to file a complaint of discrimination with the recipient or the Director.

(e) As provided in §34.6, the recipient shall take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others.

§34.24   Data and information collection; confidentiality.

(a) Data and information collection. The Director shall not require submission of data that can be obtained from existing reporting requirements or sources, including those of other agencies, if the source is known and available to the Director.

(1) Each recipient shall collect such data and maintain such records, in accordance with procedures prescribed by the Director, as the Director finds necessary to determine whether the recipient has complied or is complying with the nondiscrimination and equal opportunity provisions of JTPA or this part.

(2) Such records shall include, but are not limited to, records on applicants, eligible applicants, participants, terminees, employees and applicants for employment. Each recipient shall record the race/ethnicity, sex, age, and where known, disability status, of every applicant, eligible applicant, participant, terminee, applicant for employment and employee. Such information shall be stored in such a manner as to ensure confidentiality and shall be used only for the purposes of recordkeeping and reporting; determining eligibility, where appropriate, for JTPA-funded programs or activities; determining the extent to which the recipient is operating its JTPA-funded program or activity in a nondiscriminatory manner; or other use authorized by the nondiscrimination and equal opportunity provisions of JTPA or this part.

(3) In addition to the information which shall be collected, maintained, and upon request, submitted to the Directorate pursuant to paragraphs (a)(1) and (a)(2) of this section:

(i) Each grant applicant and recipient shall promptly notify the Director of any administrative enforcement actions or lawsuits filed against it alleging discrimination on the ground of race, color, religion, sex, national origin, age, disability, political affiliation or belief, and for beneficiaries only, citizenship or participation in JTPA;

(ii) Each grant applicant (as part of its application) and recipient (as part of a compliance review conducted pursuant to §34.40 (b) or (c), or monitoring activity carried out pursuant to §34.34) shall provide: the name of any other Federal agency that conducted a civil rights compliance review or complaint investigation during the two preceding years in which the grant applicant or recipient was found to be in noncompliance; and shall identify the parties to, the forum of, and case numbers pertaining to, any administrative enforcement actions or lawsuits filed against it during the two years prior to its application (or, with respect to recipients, its renewal application) which allege discrimination on the ground of race, color, religion, sex, national origin, age, disability, political affiliation or belief, citizenship or participation in JTPA;

(iii) Each recipient shall maintain a log of complaints filed with it that allege discrimination on the ground of race, color, religion, sex, national origin, age, disability, political affiliation or belief, citizenship or participation in JTPA. The log shall include: the name and address of the complainant; the ground of the complaint, i.e., race, color, religion, sex, national origin, age, disability, political affiliation or belief, citizenship or participation in JTPA; a description of the complaint; the date the complaint was filed; the disposition and date of disposition of the complaint; and other pertinent information.

(4) At the discretion of the Director, grant applicants and recipients may be required to provide such information and data as are necessary to investigate complaints and conduct compliance reviews on grounds prohibited under the nondiscrimination and equal opportunity provisions of JTPA and this part, other than race/ethnicity, sex, age, and disability.

(5) At the discretion of the Director, recipients may be required to provide such particularized information and/or to submit such periodic reports as the Director deems necessary to determine compliance with the nondiscrimination and equal opportunity provisions of JTPA or this part.

(6) At the discretion of the Director, grant applicants may be required to submit such particularized information as is necessary to determine whether or not the grant applicant, if funded, would be able to comply with the nondiscrimination and equal opportunity provisions of JTPA or this part.

(7) Service providers. A service provider's responsibility for collecting and maintaining the information required pursuant to this section may be assumed by the Governor, SDA grant recipient or Substate grantee, as provided in the State's Methods of Administration.

(b) Access to sources of information. (1) Each grant applicant and recipient shall permit access by the Director during normal business hours to its premises and to its employees and participants, to the extent that such individuals are on the premises during the course of the investigation, for the purpose of conducting complaint investigations, compliance reviews, monitoring activities associated with a State's development and implementation of a Methods of Administration, and inspecting and copying such books, records, accounts and other materials as may be pertinent to ascertain compliance with and ensure enforcement of the nondiscrimination and equal opportunity provisions of JTPA or this part.

(2) Asserted considerations of privacy or confidentiality shall not be a basis for withholding information from the Directorate and shall not bar the Directorate from evaluating or seeking to enforce compliance with the nondiscrimination and equal opportunity provisions of JTPA and this part. Information obtained pursuant to the requirements of this part shall be used only in connection with compliance and enforcement activities pertinent to the nondiscrimination and equal opportunity provisions of JTPA and this part. Whenever any information required of a grant applicant or recipient is in the exclusive possession of another agency or institution which, or person who, fails or refuses to furnish such information, the grant applicant or recipient shall provide certification to the Directorate of such refusal and the efforts it has made to obtain the information.

(c) Record retention requirements. (1) Each recipient shall maintain for a period of not less than three years from the close of the applicable program year, applicant, eligible applicant, participant, terminee, employee and applicant for employment records; and such other records as are required under this part or by the Director. (2) Records regarding complaints and actions taken thereunder shall be maintained for a period of not less than three years from the date of resolution of the complaint.

(d) Confidentiality. The identity of any person who furnishes information relating to, or assisting in, an investigation or a compliance review shall be kept confidential to the extent possible, consistent with a fair determination of the issues. A person whose identity it is necessary to disclose shall be protected from retaliation (see §34.8).

(e) Where designation of persons by race or ethnicity is required, the guidelines of the Office of Management and Budget shall be used.

Subpart C—Governor's Responsibilities To Implement the Nondiscrimination and Equal Opportunity Requirements of JTPA

§34.30   Application.

This subpart applies to State Programs as defined in §34.2. However, the provisions of §34.32 (b) and (c) do not apply to State Employment Security Agencies (SESAs), because the Governor's liability for any noncompliance on the part of a SESA cannot be waived.

§34.31   Recordkeeping.

The Governor shall ensure that recipients collect and maintain records in a manner consistent with the provisions of §34.24 and any procedures prescribed by the Director pursuant to §34.24(a)(1). The Governor shall further ensure that recipients are able to provide data and reports in the manner prescribed by the Director.

§34.32   Oversight and liability.

(a) The Governor shall be responsible for oversight of all JTPA-funded State programs. This responsibility includes ensuring compliance with the nondiscrimination and equal opportunity provisions of JTPA and this part, and negotiating with the recipient to secure voluntary compliance when noncompliance is found under §34.45.

(b) The Governor and the recipient shall be jointly and severally liable for all violations of the nondiscrimination and equal opportunity provisions of JTPA and this part by the recipient, unless the Governor has:

(1) Established and adhered to a Methods of Administration, pursuant to §34.33, designed to give reasonable guarantee of the recipient's compliance with such provisions;

(2) Entered into a written contract with the recipient which clearly establishes the recipient's obligations regarding nondiscrimination and equal opportunity;

(3) Acted with due diligence to monitor the recipient's compliance with these provisions; and

(4) Taken prompt and appropriate corrective action to effect compliance.

(c) If the Director determines that the Governor has demonstrated substantial compliance with the requirements of paragraph (b) of this section, he or she may recommend to the Secretary that the imposition of sanctions against the Governor be waived and that sanctions be imposed only against the noncomplying recipient.

§34.33   Methods of Administration.

(a)(1) Each Governor shall establish and adhere to a Methods of Administration for State programs as defined in §34.2. In those States in which one agency contains both SESA and JTPA programs, the Governor may develop a combined Methods of Administration.

(2) Each Methods of Administration shall be designed to give reasonable guarantee that all recipients will comply and are complying with the nondiscrimination and equal opportunity provisions of JTPA and this part.

(b) The Methods of Administration shall be:

(1) In writing;

(2) Updated periodically as required by the Director; and

(3) Signed by the Governor.

(c) The Methods of Administration shall, at a minimum:

(1) Describe how the requirements of §§34.20, 34.21, 34.22, 34.23, 34.24, 34.31, and 34.42 have been satisfied; and

(2) Include the following additional elements:

(i) A system for periodically monitoring the compliance of recipients with this part, including a determination as to whether the recipient is conducting its JTPA-funded program or activity in a nondiscriminatory way;

(ii) A system for reviewing the nondiscrimination and equal opportunity provisions of job training plans, contracts, assurances, and other similar agreements;

(iii) Procedures for ensuring that recipients provide accessibility to individuals with disabilities;

(iv) A system of policy communication and training to ensure that members of the recipients' staffs who have been assigned responsibilities pursuant to the nondiscrimination and equal opportunity provisions of JTPA or this part are aware of and can effectively carry out these responsibilities;

(v) Procedures for obtaining prompt corrective action or, as necessary, applying sanctions when noncompliance is found; and

(vi) Supporting documentation to show that the commitments made in the Methods of Administration have been and/or are being carried out. Supporting documentation includes, but is not limited to: policy and procedural issuances concerning required elements of the Methods of Administration; copies of monitoring instruments and instructions; evidence of the extent to which nondiscrimination and equal opportunity policies have been developed and communicated pursuant to this part; information reflecting the extent to which Equal Opportunity training, including training called for by §34.22, is planned and/or has been carried out; as applicable, reports of monitoring reviews and reports of follow-up actions taken thereunder where violations have been found, including, where appropriate, sanctions; and copies of any notification made pursuant to §34.23.

(d) The Governor shall, within 180 days of the effective date of this part:

(1) Develop and implement Methods of Administration consistent with the requirements of this part, and

(2) Submit a copy of the Methods of Administration to the Director.

§34.34   Monitoring.

(a) The Director may periodically review the adequacy of the Methods of Administration established by a Governor, as well as the adequacy of the Governor's performance under that Methods of Administration, to determine compliance with the requirements of §34.33. The Director may review the Methods of Administration during a compliance review under §34.40, or at another time.

(b) Nothing in this subpart shall limit or preclude the Director from monitoring directly any JTPA recipient or from investigating any matter necessary to determine a recipient's compliance with the nondiscrimination and equal opportunity provisions of JTPA or this part.

(c) The procedures contained in subpart D of this part shall apply to reviews or investigations undertaken pursuant to paragraphs (a) and (b) of this section.

Subpart D—Compliance Procedures

§34.40   Compliance reviews.

(a) The Director may from time to time conduct pre- and post-approval compliance reviews of grant applicants for and recipients of Federal financial assistance under JTPA to determine compliance with the nondiscrimination and equal opportunity provisions of JTPA and this part. Techniques used in such reviews may include desk reviews, on-site reviews, and off-site analyses.

(b) Pre-approval reviews. (1) As appropriate and necessary to ensure compliance with the nondiscrimination and equal opportunity provisions of JTPA or this part, the Director may review any application, or class of applications, for Federal financial assistance under JTPA prior to and as a condition of their approval. The basis for such review shall be the assurance specified in §34.20, information and reports submitted by the grant applicant pursuant to this part or guidelines published by the Director, and any relevant records on file with the Department.

(2) Where the Director determines that the grant applicant for Federal financial assistance under JTPA, if funded, would not comply with the nondiscrimination and equal opportunity requirements of JTPA or this part, the Director shall issue a Letter of Findings. Such Letter of Findings shall advise the grant applicant, in writing, of:

(i) The preliminary findings of the review;

(ii) The proposed remedial or corrective action pursuant to §34.44 and the time within which the remedial or corrective action should be completed;

(iii) Whether it will be necessary for the grant applicant to enter into a written Conciliation Agreement as described in §34.45; and

(iv) The opportunity to engage in voluntary compliance negotiations.

(3) If a grant applicant has agreed to certain remedial or corrective actions in order to receive Federal financial assistance under JTPA, the Department shall ensure that the remedial or corrective actions have been taken or that a Conciliation Agreement has been entered into, prior to approving the award of further assistance under JTPA. If a grant applicant refuses or fails to take remedial or corrective actions or to enter into a Conciliation Agreement, as applicable, the Director shall follow the procedures outlined in §34.46.

(4) The Director shall notify, in a timely manner, the departmental granting agency of the findings of the pre-approval compliance review.

(c) Post-approval reviews. (1) The Director may initiate a post-approval review of any recipient to determine compliance with the nondiscrimination and equal opportunity provisions of JTPA and this part. The initiation of a review may be based on, but need not be limited to, the following: The results of routine program monitoring, the nature of or incidence of complaints, the date of the last review, and Congressional or community concerns.

(2) Such review shall be initiated by a Notification Letter, advising the recipient of:

(i) The practices to be reviewed;

(ii) The programs to be reviewed;

(iii) The data to be submitted by the recipient within 30 days of the receipt of the Notification Letter; and

(iv) The opportunity, at any time prior to receipt of the Final Determination described in §34.46, to make a documentary or other submission which explains, validates or otherwise addresses the practices under review.

(3) Except as provided in §34.41(e), within 210 days of issuing a Notification Letter initiating a review, the Director shall:

(i) Issue a Letter of Findings, which shall advise the recipient, in writing, of:

(A) The preliminary findings of the review;

(B) Where appropriate, the proposed remedial or corrective action to be taken, and the time by which such action should be completed, as provided in §34.44;

(C) Whether it will be necessary for the recipient to enter into a written assurance and/or Conciliation Agreement, as provided in §34.45; and

(D) The opportunity to engage in voluntary compliance negotiations.

(ii) Where no violation is found, the recipient shall be so informed in writing.

(4) The time limit for submitting data to the Director pursuant to paragraph (c)(2)(iii) of this section may be modified by the Director.

§34.41   Notice to Show Cause.

(a) The Director may issue a Notice to Show Cause to a recipient failing to comply with the requirements of this part, where such failure results in the inability of the Director to make a finding. Such a failure includes, but is not limited to, the failure or refusal to:

(1) Submit requested data within 30 days of the receipt of the Notification Letter;

(2) Submit documentation requested during a compliance review; or

(3) Provide the Directorate access to a recipient's premises or records during a compliance review.

(b) The Notice to Show Cause shall contain:

(1) A description of the violation and a citation to the pertinent nondiscrimination or equal opportunity provision(s) of JTPA and this part;

(2) The corrective action necessary to achieve compliance or, as may be appropriate, the concepts and principles of acceptable corrective or remedial action and the results anticipated; and

(3) A request for a written response to the findings, including commitments to corrective action or the presentation of opposing facts and evidence.

(c) Such Notice to Show Cause shall give the recipient 30 days to show cause why enforcement proceedings under the nondiscrimination and equal opportunity provisions of JTPA or this part should not be instituted. A recipient may make such a showing by, among other means:

(1) Correcting the violation(s) that brought about the Notice to Show Cause and entering into a written assurance and/or entering into a Conciliation Agreement, as appropriate, pursuant to §34.45(d);

(2) Demonstrating that the Directorate does not have jurisdiction; or

(3) Demonstrating that the violation alleged by the Directorate did not occur.

(d) If the recipient fails to show cause why enforcement proceedings should not be initiated, the Director shall follow the procedures outlined in §34.46.

(e) The 210 day requirement provided for in §34.40(c)(3) shall be tolled during the pendency of a Notice to Show Cause.

§34.42   Adoption of discrimination complaint processing procedures.

(a) Each recipient shall adopt and publish procedures for processing complaints that allege a violation of the nondiscrimination and equal opportunity provisions of JTPA or this part. The procedures shall provide for the prompt and equitable resolution of such complaints. In the case of service providers, the procedures required by this paragraph shall be adopted and published on behalf of the service provider by the Governor, the SDA grant recipient or the Substate grantee, as provided in the State's Methods of Administration.

(b) The recipient's Equal Opportunity Officer, or in the case of a small recipient, the person designated pursuant to §34.22(c), shall be responsible for the adoption and publication of procedures pursuant to paragraph (a) of this section, and for ensuring that such procedures are followed.

(c) A recipient who processes a complaint alleging a violation of the nondiscrimination and equal opportunity provisions of JTPA or this part shall provide the complainant with written notification of the resolution within 60 days of the filing of the complaint. Such notification shall include a statement of complainant's right to file a complaint with the Director.

§34.43   Complaints and investigations.

(a) Who may file. Any person who believes that he or she or any specific class of individuals has been or is being subjected to discrimination prohibited by the nondiscrimination and equal opportunity provisions of JTPA or this part may file a written complaint by him or herself or by a representative.

(b) Where to file. The complaint may be filed either with the recipient or with the Director.

(c) Time for filing. A complaint filed pursuant to this part must be filed within 180 days of the alleged discrimination. The Director, for good cause shown, may extend the filing time. This time period for filing is for the administrative convenience of the Directorate and does not create a defense for the respondent.

(d) Contents of complaints. Each complaint shall be filed in writing and shall:

(1) Be signed by the complainant or his or her authorized representative;

(2) Contain the complainant's name and address (or specify another means of contacting him or her);

(3) Identify the respondent; and

(4) Describe the complainant's allegations in sufficient detail to allow the Director or the recipient, as applicable, to determine whether:

(i) The Directorate or the recipient, as applicable, has jurisdiction over the complaint;

(ii) The complaint was timely filed; and

(iii) The complaint has apparent merit, i.e., whether the allegations, if true, would violate any of the nondiscrimination and equal opportunity provisions of JTPA or this part. The information required by this paragraph may be provided by completing and submitting the Directorate's Complaint Information and Privacy Act Consent Forms.

(e) Right to representation. Each complainant and respondent has the right to be represented by an attorney or other individual of his or her own choice.

(f) Election of recipient-level complaint processing. Any person who elects to file his or her complaint with the recipient shall allow the recipient 60 days to process the complaint.

(1) If, during the 60-day period, the recipient offers the complainant a resolution of the complaint but the resolution offered is not satisfactory to the complainant, the complainant or his or her representative may file a complaint with the Director within 30 days after the recipient notifies the complainant of its proposed resolution.

(2) Within 60 days, the recipient shall offer a resolution of the complaint to the complainant, and shall notify the complainant of his or her right to file a complaint with the Director, and inform the complainant that this right must be exercised within 30 days.

(3) If, by the end of 60 days, the recipient has not completed its processing of the complaint or has failed to notify the complainant of the resolution, the complainant or his or her representative may, within 30 days of the expiration of the 60-day period, file a complaint with the Director.

(4) The Director may extend the 30-day time limit if the complainant is not notified as provided in paragraph (f)(2) of this section, or for other good cause shown.

(5) Notification of no jurisdiction. The recipient shall notify the complainant in writing immediately upon determining that it does not have jurisdiction over a complaint that alleges a violation of the nondiscrimination and equal opportunity provisions of JTPA or this part. The notification shall also include the basis for such determination, as well as a statement of the complainant's right to file a written complaint with the Director within 30 days of receipt of the notification.

(g) Complaints filed with the Director. (1) Notification of acceptance of complaint. The Director shall determine whether the Directorate will accept a complaint filed pursuant to this section. Where the Directorate accepts a complaint for investigation, he or she shall:

(i) Acknowledge acceptance of the complaint for investigation to the complainant and the respondent, and

(ii) Advise the complainant and respondent of the issues over which the Directorate has accepted jurisdiction.

(2) Any complainant, respondent, or the authorized representative of any complainant or respondent, may contact the Directorate for information regarding the complaint filed pursuant to this section.

(3) Where a complaint contains insufficient information, the Director shall seek the needed information from the complainant. If the complainant is unavailable after reasonable means have been used to locate him or her, or the information is not furnished within 15 days of the receipt of such request, the complaint file may be closed without prejudice upon notice sent to the complainant's last known address.

(4) The Director may issue a subpoena, as authorized by Section 163(c) of JTPA, directing the person named therein to appear and give testimony and/or produce documentary evidence, before a designated representative, relating to the complaint being investigated. Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated time and place.

(5) Where the Directorate lacks jurisdiction over a complaint, he or she shall:

(i) So advise the complainant, indicating why the complaint falls outside the coverage of the nondiscrimination and equal opportunity provisions of JTPA or this part; and

(ii) Where possible, refer the complaint to an appropriate Federal, State or local authority.

(6) Where a complaint lacks apparent merit or has not been timely filed, it need not be investigated. Where a complaint will not be investigated, the Director shall so inform the complainant and indicate the basis for that determination.

(7) Where a complaint alleging discrimination based on age falls within the jurisdiction of the Age Discrimination Act of 1975, as amended, the Director shall refer the complaint in accordance with the provisions of 45 CFR 90.43(c)(3), and shall so advise the complainant and the respondent.

(8) Where a complaint solely alleges a charge of individual employment discrimination covered by the nondiscrimination and equal opportunity provisions of JTPA or this part and by title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e to 2000e-17), the Equal Pay Act of 1963, as amended (29 U.S.C. 206(d)), or the Age Discrimination in Employment Act of 1976, as amended (29 U.S.C. 621, et seq.), the Director shall refer such “joint complaint” to the Equal Employment Opportunity Commission for investigation and conciliation under procedures for handling joint complaints at 29 CFR part 1691, and shall advise the complainant and the respondent of the referral.

(9) Determinations. The Director shall determine at the conclusion of the investigation of a complaint whether there is reasonable cause to believe that a violation of the nondiscrimination and equal opportunity provisions of JTPA or this part has occurred.

(i) Upon making such a cause finding, the Director shall issue an Initial Determination. The Initial Determination shall notify the complainant and the respondent, in writing, of:

(A) The specific findings of the investigation;

(B) The proposed corrective or remedial action and the time by which the corrective or remedial action must be completed, as provided in §34.44;

(C) Whether it will be necessary for the respondent to enter into a written agreement, as provided in §34.45; and

(D) The opportunity to engage in voluntary compliance negotiations.

(ii) Where a no cause determination is made, the complainant and the respondent shall be so notified in writing. Such determination represents final agency action of the Department.

§34.44   Corrective and remedial action.

(a) A Letter of Findings, Notice to Show Cause, or Initial Determination, issued pursuant to §§34.40, 34.41 or 34.43 respectively, shall include the specific steps the grant applicant or recipient, as applicable, must take within a stated period of time in order to achieve voluntary compliance.

(b) Such steps shall include, but are not limited to:

(1) Actions to end and/or redress the violation of the nondiscrimination and equal opportunity provisions of JTPA or this part;

(2) Make whole relief where discrimination has been identified, including, as appropriate, back pay (which shall not accrue from a date more than 2 years prior to the filing of the complaint or the initiation of a compliance review) or other monetary relief; hire or reinstatement; retroactive seniority; promotion; benefits or other services discriminatorily denied; and

(3) Such other remedial or affirmative relief as the Director deems necessary, including but not limited to outreach, recruitment and training designed to ensure equal opportunity.

(c) Monetary relief may not be paid from Federal funds.

§34.45   Notice of violation; written assurances; Conciliation Agreements.

(a) State programs—(1) Violations at State-office level. Where the Director has determined that a violation of the nondiscrimination and equal opportunity provisions of JTPA or this part has occurred at the State-office level, he or she shall notify the Governor through the issuance of a Letter of Findings, Notice to Show Cause or Initial Determination, as appropriate, pursuant to §34.40, §34.41 or §34.43 respectively. The Director may secure compliance with the nondiscrimination and equal opportunity provisions of JTPA and this part through, among other means, the execution of a written assurance and/or Conciliation Agreement, pursuant to paragraph (d) of this section.

(2) Violations below State-office level. Where the Director has determined that a violation of the nondiscrimination and equal opportunity provisions of JTPA or this part has occurred below the State-office level, the Director shall so notify the Governor and the violating recipient(s) through the issuance of a Letter of Findings, Notice to Show Cause or Initial Determination, as appropriate, pursuant to §34.40, §34.41 or §34.43 respectively.

(i) Such issuance shall:

(A) Direct the Governor to initiate negotiations immediately with the violating recipient(s) to secure compliance by voluntary means;

(B) Direct the Governor to complete such negotiations within 30 days of the Governor's receipt of the Notice to Show Cause or within 45 days of the Governor's receipt of the Letter of Findings or Initial Determination, as applicable. The Director reserves the right to enter into negotiations with the recipient at any time during the period. For good cause shown, the Director may approve an extension of time to secure voluntary compliance. The total time allotted to secure voluntary compliance shall not exceed 60 days.

(C) Include a determination as to whether compliance should be achieved by: Immediate correction of the violation(s) and written assurance that such violations have been corrected, pursuant to paragraph (d)(1) of this section; entering into a written Conciliation Agreement pursuant to paragraph (d)(2) of this section; or both.

(ii) If the Governor determines, at any time during the period described in paragraph (a)(2)(i)(B), that a recipient's compliance cannot be achieved by voluntary means, the Governor shall so notify the Director.

(iii) If the Governor is able to secure voluntary compliance pursuant to paragraph (a)(2)(i) of this section, he or she shall submit to the Director for approval, as applicable: written assurance that the required action has been taken, as described in paragraph (d)(1) of this section; and/or a copy of the Conciliation Agreement, as described in paragraph (d)(2) of this section.

(iv) The Director may disapprove any written assurance or Conciliation Agreement submitted for approval pursuant to paragraph (a)(2)(iii) of this section that fails to satisfy each of the applicable requirements provided in paragraph (d) of this section.

(b) National programs. Where the Director has determined that a violation of the nondiscrimination and equal opportunity provisions of JTPA or this part has occurred in a National Program, he or she shall notify the National Program recipient by issuing a Letter of Findings, Notice to Show Cause or Initial Determination, as appropriate, pursuant to §34.40, §34.41 or §34.43 respectively. The Director may secure compliance with the nondiscrimination and equal opportunity provisions of JTPA and this part through, among other means, the execution of a written assurance and/or Conciliation Agreement pursuant to paragraph (d) of this section, as applicable.

(c) Written assurance; conciliation agreement—(1) Written assurance. A written assurance developed pursuant to this section must provide documentation that the violations listed in the Letter of Findings, Notice to Show Cause or Initial Determination, as applicable, have been corrected.

(2) Conciliation agreement. A Conciliation Agreement developed pursuant to this section must:

(i) Be in writing;

(ii) Address each cited violation;

(iii) Specify the corrective or remedial action to be taken within a stated period of time to come into compliance;

(iv) Provide for periodic reporting, as determined by the Director, on the status of the corrective and remedial action;

(v) Provide that the violation(s) will not recur; and

(vi) Provide for enforcement for a breach of the agreement.

§34.46   Final Determination.

(a) The Director shall conclude that compliance cannot be secured through informal means when:

(1) The grant applicant or recipient fails or refuses to correct the violation(s) within the applicable time period established by the Letter of Findings, Notice to Show Cause or Initial Determination; or

(2) The Director has not approved an extension of time in which to secure voluntary compliance, pursuant to §34.45(a)(2)(i)(B), and:

(i) Has not received notification pursuant to §34.45(a)(2)(iii) that voluntary compliance has been achieved; or

(ii) Has disapproved a written assurance or Conciliation Agreement, pursuant to §34.45(a)(2)(iv); or

(iii) Has received notice from the Governor, pursuant to §34.44(a)(2)(ii), that voluntary compliance cannot be achieved.

(b) Upon so concluding, the Director may:

(1) Issue a Final Determination which shall:

(i) Specify the efforts made to achieve voluntary compliance and indicate that those efforts have been unsuccessful;

(ii) Identify those matters upon which the Directorate and the grant applicant or recipient continue to disagree;

(iii) List any modifications to the findings of fact or conclusions set forth in the Initial Determination, Notice to Show Cause or Letter of Findings;

(iv) Determine the liability of the grant applicant or recipient, as applicable, and establish the extent of the liability, as appropriate;

(v) Describe the corrective or remedial action that must be taken for the grant applicant or recipient to come into compliance;

(vi) Indicate that the failure of the grant applicant or recipient to come into compliance within 10 days of the receipt of the Final Determination may result, after opportunity for a hearing, in the termination or denial of the grant, or discontinuation of assistance, as appropriate, or in referral to the Department of Justice with a request to file suit;

(vii) Advise the grant applicant or recipient of the right to request a hearing, and reference the applicable procedures at §34.51; and

(viii) Determine the Governor's liability, if any, in accordance with the provisions of §34.32; or

(2) Refer the matter to the Attorney General with a recommendation that an appropriate civil action be instituted; or

(3) Take such other action as may be provided by law.

§34.47   Notice of finding of noncompliance.

Where a compliance review or complaint investigation results in a finding of noncompliance, the Director shall so notify: (a) the Departmental granting agency; and (b) the Assistant Attorney General.

§34.48   Notification of Breach of Conciliation Agreement.

(a) Where a Governor is a party to a Conciliation Agreement, the Governor shall immediately notify the Director of a recipient's breach of any such Conciliation Agreement.

(b) When it becomes known to the Director, through the Governor or by other means, that a Conciliation Agreement has been breached, the Director may issue a Notification of Breach of Conciliation Agreement.

(c) A Notification of Breach of Conciliation Agreement issued pursuant to this section shall be directed, as applicable, to the Governor and/or other party(ies) to the Conciliation Agreement.

(d) A Notification of Breach of Conciliation Agreement issued pursuant to paragraph (a) of this section shall:

(1) Specify the efforts made to achieve voluntary compliance and indicate that those efforts have been unsuccessful;

(2) Identify the specific provisions of the Conciliation Agreement violated;

(3) Determine liability for the violation and the extent of the liability, as appropriate;

(4) Indicate that failure of the violating party to come into compliance within 10 days of the receipt of the Notification of Breach of Conciliation Agreement may result, after opportunity for a hearing, in the termination or denial of the grant, or discontinuation of assistance, as appropriate, or in referral to the Department of Justice with a request from the Department to file suit;

(5) Advise the violating party of the right to request a hearing, and reference the applicable procedures at §34.51(b); and

(6) Include a determination as to the Governor's liability, if any, in accordance with the provisions of §34.32.

(e) Where enforcement action pursuant to a Notification of Breach of Conciliation Agreement is commenced, the Director shall so notify: the Departmental granting agency; and the Governor, recipient or grant applicant, as applicable.

Subpart E—Federal Procedures For Effecting Compliance

§34.50   General.

(a) Sanctions; judicial enforcement. If, following issuance of a Final Determination pursuant to §34.46, or a Notification of Breach of Conciliation Agreement pursuant to §34.48, compliance has not been achieved, the Secretary may:

(1) After opportunity for a hearing, suspend, terminate, deny or discontinue the Federal financial assistance under JTPA, in whole or in part;

(2) Refer the matter to the Attorney General with a recommendation that an appropriate civil action be instituted; or

(3) Take such action as may be provided by law.

(b) Deferral of new grants. When termination proceedings under §34.51 have been initiated, the Department may defer action on applications for new financial assistance under JTPA until a Final Decision under §34.52 has been rendered. Deferral is not appropriate when financial assistance under JTPA is due and payable under a previously approved application.

(1) New Federal financial assistance under JTPA includes all assistance for which an application or approval, including renewal or continuation of existing activities, or authorization of new activities, is required during the deferral period.

(2) New Federal financial assistance under JTPA does not include assistance approved prior to the beginning of termination proceedings or increases in funding as a result of changed computations of formula awards.

§34.51   Hearings.

(a) Notice of opportunity for hearing. As part of a Final Determination, or a Notification of Breach of a Conciliation Agreement, the Director shall include, and serve on the grant applicant or recipient (by certified mail, return receipt requested), a notice of opportunity for hearing.

(b) Complaint; request for hearing; answer. (1) In the case of noncompliance which cannot be voluntarily resolved, the Final Determination or Notification of Breach of Conciliation Agreement shall be deemed the Department's formal complaint.

(2) To request a hearing, the grant applicant or recipient must file a written answer to the Final Determination or Notification of Breach of Conciliation Agreement, and a copy of the Final Determination or Notification of Breach of Conciliation Agreement, with the Office of the Administrative Law Judges.

(i) The answer must be filed within 30 days of the date of receipt of the Final Determination or Notification of Breach of Conciliation Agreement.

(ii) A request for hearing must be set forth in a separate paragraph of the answer.

(iii) The answer shall specifically admit or deny each finding of fact in the Final Determination or Notification of Breach of Conciliation Agreement. Where the grant applicant or recipient does not have knowledge or information sufficient to form a belief, the answer may so state and the statement shall have the effect of a denial. Findings of fact not denied shall be deemed admitted. The answer shall separately state and identify matters alleged as affirmative defenses and shall also set forth the matters of fact and law relied on by the grant applicant or recipient.

(3) The grant applicant or recipient must simultaneously serve a copy of its filing on the Office of the Solicitor, Civil Rights Division, Room N-2464, U.S. Department of Labor, 200 Constitution Avenue NW., Washington DC 20210.

(4)(i) The failure of a grant applicant or recipient to request a hearing under this paragraph, or to appear at a hearing for which a date has been set, is deemed to be a waiver of the right to a hearing; and

(ii) Whenever a hearing is waived, all allegations of fact contained in the Final Determination or Notification of Breach of Conciliation Agreement shall be deemed admitted and the Final Determination or Notification of Breach of Conciliation Agreement shall be deemed the Final Decision of the Secretary as of the day following the last date by which the grant applicant or recipient was required to request a hearing or was to appear at a hearing. See §34.52(b)(3).

(c) Time and place of hearing. Hearings shall be held at a time and place ordered by the Administrative Law Judge upon reasonable notice to all parties and, as appropriate, the complainant. In selecting a place for the hearing, due regard shall be given to the convenience of the parties, their counsel, if any, and witnesses.

(d) Judicial process; evidence. (1) The Administrative Law Judge may use judicial process to secure the attendance of witnesses and the production of documents pursuant to Section 9 of the Federal Trade Commission Act (15 U.S.C. 49).

(2) Evidence. In any hearing or administrative review conducted pursuant to this part, evidentiary matters shall be governed by the standards and principles set forth in the Uniform Rules of Evidence issued by the Department of Labor's Office of Administrative Law Judges, 29 CFR part 18.

§34.52   Decision and post-termination proceedings.

(a) Initial decision. After the hearing, the Administrative Law Judge shall issue an initial decision and order, containing findings and conclusions. The initial decision and order shall be served on all parties by certified mail, return receipt requested.

(b) Exceptions; final decision—(1) Final decision after a hearing. The initial decision and order shall become the final decision and Order of the Secretary unless exceptions are filed by a party or, in the absence of exceptions, the Secretary serves notice that the Secretary shall review the decision.

(i) A party dissatisfied with the initial decision and order may, within 45 days of receipt, file with the Secretary and serve on the other parties to the proceedings and on the Administrative Law Judge, exceptions to the initial decision and order or any part thereof.

(ii) Upon receipt of exceptions, the Administrative Law Judge shall index and forward the record and the initial decision and order to the Secretary within three days of such receipt.

(iii) A party filing exceptions must specifically identify the finding or conclusion to which exception is taken. Any exception not specifically urged shall be deemed to have been waived.

(iv) Within 45 days of the date of filing such exceptions, a reply, which shall be limited to the scope of the exceptions, may be filed and served by any other party to the proceeding.

(v) Requests for extensions for the filing of exceptions or replies thereto must be received by the Secretary no later than 3 days before the exceptions or replies are due.

(vi) If no exceptions are filed, the Secretary may, within 30 days of the expiration of the time for filing exceptions, on his or her own motion serve notice on the parties that the Secretary will review the decision.

(vii) Final Decision and Order. (A) Where exceptions have been filed, the initial decision and order of the Administrative Law Judge shall become the Final Decision and Order of the Secretary unless the Secretary, within 30 days of the expiration of the time for filing exceptions and any replies thereto, has notified the parties that the case is accepted for review. (B) Where exceptions have not been filed, the initial decision and order of the Administrative Law Judge shall become the Final Decision and Order of the Secretary unless the Secretary has served notice on the parties that the Secretary will review the decision, as provided in paragraph (b)(1)(vi) of this section.

(viii) Any case reviewed by the Secretary pursuant to this paragraph shall be decided within 180 days of the notification of such review. If the Secretary fails to issue a Final Decision and Order within the 180-day period, the initial decision and order of the Administrative Law Judge shall become the Final Decision and Order of the Secretary.

(2) Final Decision where a hearing is waived. (i) If, after issuance of a Final Determination pursuant to §34.46(a) or Notification of Breach of Conciliation Agreement pursuant to §34.48, voluntary compliance has not been achieved within the time set by this part and the opportunity for a hearing has been waived as provided for in §34.51(b)(3), the Final Determination or Notification of Breach of Conciliation Agreement shall be deemed the Final Decision of the Secretary.

(ii) When a Final Determination or Notification of Breach of Conciliation Agreement is deemed the Final Decision of the Secretary, the Secretary may, within 45 days, issue an order terminating or denying the grant or continuation of assistance or imposing other appropriate sanctions for the grant applicant or recipient's failure to comply with the required corrective and/or remedial actions, or referring the matter to the Attorney General for further enforcement action.

(3) Final agency action. A Final Decision and Order issued pursuant to §34.52(b) constitutes final agency action.

(c) Post-termination proceedings. (1) A grant applicant or recipient adversely affected by a Final Decision and Order issued pursuant to paragraph (b) of this section shall be restored, where appropriate, to full eligibility to receive Federal financial assistance under JTPA if it satisfies the terms and conditions of such Final Decision and Order and brings itself into compliance with the nondiscrimination and equal opportunity provisions of JTPA and this part.

(2) A grant applicant or recipient adversely affected by a Final Decision and Order issued pursuant to paragraph (b) of this section may at any time petition the Director to restore its eligibility to receive Federal financial assistance under JTPA. A copy of the petition shall be served on the parties to the original proceeding which led to the Final Decision and Order issued pursuant to paragraph (b) of this section. Such petition shall be supported by information showing the actions taken by the grant applicant or recipient to comply with the requirements of paragraph (c)(1) of this section. The grant applicant or recipient shall have the burden of demonstrating that it has satisfied the requirements of paragraph (c)(1) of this section. Restoration to eligibility may be conditioned upon the grant applicant or recipient entering into a consent decree. While proceedings under this section are pending, sanctions imposed by the Final Decision and Order under paragraphs (b) (1) and (2) of this section shall remain in effect.

(3) The Director shall issue a written decision on the petition for restoration.

(i) If the Director determines that the requirements of paragraph (c)(1) of this section have not been satisfied, he or she shall issue a decision denying the petition.

(ii) Within 30 days of its receipt of the Director's decision, the recipient or grant applicant may file a petition for review of the decision by the Secretary, setting forth the grounds for its objection to the Director's decision.

(iii) The petition shall be served on the Director and on the Office of the Solicitor, Civil Rights Division.

(iv) The Director may file a response to the petition within 14 days.

(v) The Secretary shall issue the final agency decision denying or granting the recipient's or grant applicant's request for restoration to eligibility.

§34.53   Suspension, termination, denial or discontinuance of Federal financial assistance under JTPA; alternate funds disbursal procedure.

(a) Any action to suspend, terminate, deny or discontinue Federal financial assistance under JTPA shall be limited to the particular political entity, or part thereof or other recipient (or grant applicant) as to which the finding has been made and shall be limited in its effect to the particular program, or part thereof, in which the noncompliance has been found. No order suspending, terminating, denying or discontinuing Federal financial assistance under JTPA shall become effective until:

(1) The Director has issued a Final Determination pursuant to §34.46 or Notification of Breach of Conciliation Agreement pursuant to §34.48;

(2) There has been an express finding on the record, after opportunity for a hearing, of failure by the grant applicant or recipient to comply with a requirement imposed by or pursuant to the nondiscrimination and equal opportunity provisions of JTPA or this part;

(3) A Final Decision has been issued by the Secretary, the Administrative Law Judge's decision and order has become the Final Decision of the Secretary, or the Final Determination or Notification of Conciliation Agreement has been deemed the Final Decision of the Secretary, pursuant to §34.52(b); and

(4) The expiration of 30 days after the Secretary has filed, with the committees of Congress having legislative jurisdiction over the program involved, a full written report of the circumstances and grounds for such action.

(b) When the Department withholds funds from a recipient or grant applicant under these regulations, the Secretary may disburse the withheld funds directly to an alternate recipient. In such case, 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 nondiscrimination and equal opportunity provisions of JTPA.



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