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					federal register
                   Friday
                   November 12, 1999




                   Part II

                   Department of Labor
                   Office of the Secretary

                   29 CFR Part 37
                   Implementation of the Nondiscrimination
                   and Equal Opportunity Provisions of the
                   Workforce Investment Act of 1998; Final
                   Rule
61692        Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

DEPARTMENT OF LABOR                          such as readers or print magnifiers.             financially assisted program or activity.
                                             Copies of this Interim Final Rule will be        The rule provides procedures for
Office of the Secretary                      made available in the following formats:         determining and enforcing compliance.
                                             large print, electronic file on computer            Although the Department wishes to
29 CFR Part 37                               disk, and audio tape. To schedule an             emphasize that it considers the reforms
RIN 1291–AA29                                appointment to review the comments               embodied in WIA to be significant, and
                                             and/or to obtain the Interim Final Rule          not ‘‘business as usual,’’ the
Implementation of the                        in an alternate format, contact CRC at           nondiscrimination and equal
Nondiscrimination and Equal                  the telephone numbers and addresses              employment opportunity principles
Opportunity Provisions of the                listed above.                                    embodied in this Act are substantially
Workforce Investment Act of 1998             FOR FURTHER INFORMATION CONTACT: Bud             similar to those contained in JTPA.
                                             West, Senior Policy Advisor, Civil               Accordingly, there are only limited
AGENCY:Office of the Secretary, Labor.                                                        substantive differences between 29 CFR
      Interim final rule; Request for
ACTION:                                      Rights Center, US Department of Labor,
                                             200 Constitution Avenue NW, Room N–              part 34, implementing the
comments.                                                                                     nondiscrimination and equal
                                             4123, Washington, DC 20210, CRC–
SUMMARY: This Interim Final Rule             WIA@dol.gov, telephone (202) 219–                opportunity provisions of JTPA, and 29
implements Section 188 of the                8927 (VOICE), or (202) 219–6118 or               CFR part 37, implementing the similar
Workforce Investment Act of 1998             (800) 326–2577 (TTY/TDD).                        provisions of WIA. Those substantive
(WIA), which contains the statute’s                                                           changes that have been made are based
                                             SUPPLEMENTARY INFORMATION: The
equal opportunity and                                                                         on the experience of the Civil Rights
                                             preamble to these regulations is                 Center (CRC), the Departmental agency
nondiscrimination provisions. The            organized as follows:
Workforce Investment Act supersedes                                                           responsible for administering the
the Job Training Partnership Act (JTPA)
                                             I. Background—provides a brief description       nondiscrimination provisions of JTPA
                                                   of the development of these proposed       and WIA, and on feedback provided to
as the Department of Labor’s primary               regulations.
mechanism for providing financial                                                             CRC by grant applicants and recipients
                                             II. Authority—cites the statutory provisions     regarding their work with the
assistance for a comprehensive system              supporting these regulations,
                                                                                              nondiscrimination and equal
of job training and placement services             Departmental redelegation authority, and
                                                   Interagency coordination authority.        opportunity provisions of JTPA and part
for adults and eligible youth. With
                                             III. Overview of the Regulations—                34. These substantive changes are
limited substantive changes described
                                                   summarizes pertinent aspects of the        described in detail in Section III of this
in Section III of this preamble, this rule
                                                   regulatory text and describes its          preamble.
generally carries over the policies and                                                          Most of the changes the Department
                                                   purposes and application.
procedures found in 29 CFR part 34,          IV. Regulatory Procedure—sets forth the          has made to the provisions contained in
which implements the                               applicable regulatory requirements and     part 34 have been structural, stylistic,
nondiscrimination and equal                        requests comments on specific issues.      and phrasing changes. The changes have
opportunity provisions of JTPA. Section                                                       been made to enhance the readability of
188(e) of WIA mandates that the              I. Background
                                                                                              the rule for, and its utility to, recipients
Department issue regulations                   On August 7, 1998, President Clinton           who receive financial assistance under
implementing the section within one          signed the Workforce Investment Act of           WIA Title I; grant applicants who wish
year of the passage of WIA.                  1998 (WIA), comprehensive reform                 to receive such assistance; individuals
DATES: Effective Date: This Interim Final    legislation that supersedes JTPA. Both           who wish to file discrimination
Rule will become effective on November       WIA and JTPA contain                             complaints under WIA Section 188; and
12, 1999.                                    nondiscrimination and equal                      other interested parties. The Department
  Comment Period: Comments must be           opportunity provisions. The JTPA                 seeks specific comments on the
received on or before December 13,           nondiscrimination provisions are                 enhancements to the rule, and
1999.                                        contained in Section 167 of that statute,        suggestions for improving the rule.
ADDRESSES: Comments should be sent to        and in its implementing regulations                 The alterations to the rule fall into
Annabelle T. Lockhart, Director of the       codified in 29 CFR part 34. These                two categories: (1) Changes making the
Civil Rights Center (CRC), by regular        regulatory provisions generally are              rule’s obligations consistent with other
mail at the US Department of Labor, 200      carried over in the nondiscrimination            regulatory obligations WIA Title I
Constitution Avenue NW, Room N–              and equal employment opportunity                 recipients might be under; and (2)
4123, Washington, DC 20210, or by e-         provisions of WIA’s implementing                 Changes reducing the ‘‘legalese’’ of the
mail at CRC–WIA@dol.gov. Brief               regulations. The latter regulations are          JTPA regulations. Generally, neither
comments (maximum of five pages) may         contained in this Interim Final Rule, to         type of modification is meant to change
be submitted by facsimile machine            be codified in 29 CFR part 37.                   the substantive content of the
(FAX) to (202) 219–5658. Receipt of            This Interim Final Rule prohibits WIA          underlying rule.
submissions, whether by U.S. mail, e-        Title I-financially assisted grant                  As an example of the first category,
mail, or FAX transmittal, will not be        applicants and recipients, as defined in         the section of the rule regarding
acknowledged; however, the sender may        Section 37.4, from discriminating on the         recipients’ obligations to individuals
request confirmation that a submission       basis of race, color, religion, sex,             with disabilities has been amended to
has been received, by telephoning the        national origin, age, disability, or             follow generally the regulations
Civil Rights Center at (202) 219–8927        political affiliation or belief. It also         implementing Title II of the Americans
(VOICE) or (202) 219–6118 or (800) 326–      protects any beneficiary (person                 with Disabilities Act of 1990, as
2577 (TTY/TDD).                              intended by Congress to receive WIA              amended (ADA). These regulations are
  Comments will be available for public      Title I-financially assisted aid, benefits,      found at 28 CFR part 35. This change is
inspection during normal business            services, or training) from                      not intended to provide a substantive
hours at the above address. Persons who      discrimination based on either that              change from the regulations
need assistance to review the comments       beneficiary’s citizenship, or his or her         implementing JTPA. It is intended only
will be provided with appropriate aids       participation in any WIA Title I-                to clarify the regulations.
             Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                         61693

   The second category of changes was           The Department is particularly             amended, assigns the Secretary of
prompted by the June 1, 1998,                interested in receiving comments              Health and Human Services the
Presidential Memorandum on Plain             regarding any aspects of the Rule that        responsibility for coordinating the
Language, which instructed Federal           affect the relationship between the           Federal enforcement effort of that Act.
Departments and Agencies to write new        Federal government and the States.            This Interim Final Rule has been
regulations in language understandable                                                     coordinated with the Department of
                                             II. Authority
to most people. The Department has met                                                     Justice and the Equal Employment
the intent of the President’s                A. Statutory Authority                        Opportunity Commission, as well as the
memorandum by incorporating stylistic           The statutory authorities for this         Department of Health and Human
changes into the language and format of      Interim Final Rule are: Sections 134(b),      Services.
these regulations to facilitate their        136(d)(2)(F), 136(e), 172(a), 183(c),           In addition, the Rule has been
readability without changing their           185(c)(2), 185(d)(1)(E), 186, 187 and 188     coordinated with other appropriate
substantive content. An example of such      of the Workforce Investment Act of            Federal grantmaking agencies, including
a change is the rewording of subsection      1998, Pub. L. 105–220, 12 Stat. 936 (29       the Departments of Education and
topic header statements into the form of     U.S.C. 2801 et seq.); Title VI of the Civil   Housing and Urban Development.
questions.                                   Rights Act of 1964, as amended, Pub. L.
   Other examples:                                                                         III. Overview of the Rule
                                             88–352, 78 Stat. 252 (42 U.S.C. 2000d,
   • Some sections have been                 et seq.); Section 504 of the                  Subpart A—(a) outlines the purpose and
subdivided, to make the content of           Rehabilitation Act of 1973, as amended,         application of part 37; (b) provides
individual sections more homogeneous.        Pub. L. 93–112, 87 Stat. 390 (29 U.S.C.         definitions; (c) outlines prohibited
   • Some sections have been more            794); the Age Discrimination Act of             grounds for and forms of
logically reordered.                         1975, as amended, Pub. L. 94–135, 89            discrimination; and (d) establishes
   • Terminology has been adjusted to        Stat. 728 (42 U.S.C. 6101); and Title IX        enforcement authority and
use plain language terms. As a result,       of the Education Amendments of 1972,            obligations.
the term ‘‘shall’’ has been replaced in      as amended, Pub. L. 92–318, 86 Stat.
this rule by the terms ‘‘must,’’ ‘‘will,’’                                                 Subpart B—sets forth the affirmative
                                             373 (20 U.S.C. 1681).                           obligations of recipients of, and grant
‘‘is/are,’’ or similar terms, as
appropriate. The term ‘‘must’’ connotes      B. Departmental Authorization                   applicants for, financial assistance
an obligation, while the term ‘‘will’’                                                       under WIA Title I.
                                                Secretary’s Order 2–81, Section 5a(2),
indicates a future action. Similarly, the    authorized the Assistant Secretary for        Subpart C—describes a Governor’s
term ‘‘prior to’’ has been replaced by the   Administration and Management,                  responsibilities to implement the
term ‘‘before’’; ‘‘pursuant to’’ has been    working through the Director, Office of         nondiscrimination and equal
replaced, as appropriate, by ‘‘under,’’      Civil Rights, to establish and formulate        opportunity provisions of WIA and
‘‘by,’’ or ‘‘authorized by’’; and ‘‘is       all policies, standards, and procedures         this part.
deemed’’ or ‘‘will be deemed’’ has been      for, as well as to issue rules and            Subpart D—describes procedures for
replaced, as appropriate, by ‘‘is/are        regulations governing, the enforcement          compliance reviews and complaint
considered’’ or ‘‘become(s).’’               of statutes applying nondiscrimination          processing.
   Again, these changes are not intended     and equal opportunity requirements to
to alter the meaning of the regulations.                                                   Subpart E—describes the procedures for
                                             programs and activities receiving
Rather, the changes are intended to                                                          effecting compliance, including (a)
                                             financial assistance from DOL. On
create a more readable document.                                                             actions the Department will take upon
                                             October 12, 1986, the Office of Civil
   CRC maintains a close relationship                                                        making a finding of noncompliance
                                             Rights was redesignated the Directorate
and regular contact with the regulated                                                       for which voluntary compliance
                                             of Civil Rights by the Assistant
community. The agency holds an                                                               cannot be achieved; (b) the rights of
                                             Secretary. Effective December 12, 1995,
annual national conference on equal                                                          parties upon such a finding; and (c)
                                             the Assistant Secretary redesignated the
opportunity, attended by several                                                             hearing procedures, sanctions, and
                                             Directorate of Civil Rights as the Civil
hundred officials and staff of the State                                                     post-termination procedures.
                                             Rights Center (CRC). CRC is authorized
and local agencies that are responsible      to monitor and enforce all                    Subpart A—General Provisions
for ensuring nondiscrimination in the        nondiscrimination and equal
programs receiving financial assistance      opportunity regulations regarding               The individual sections in this
under JTPA and/or WIA Title I. At this       programs receiving financial assistance       subpart are largely identical to their
conference, and through other in-person      from DOL, including Section 188 of            corresponding sections within the same
and telephone contacts with CRC, these       WIA.                                          subpart in part 34. Consistent with
officials and staff have discussed                                                         plain-language guidelines, one section
directly with CRC staff members the          C. Interagency Coordination                   has been subdivided into separate
effect that the JTPA nondiscrimination          The Department of Justice (DOJ),           sections treating different topics. These
regulations have had upon their              under Section 1–201 of Executive Order        changes are not intended to alter the
agencies’ operations. Many of the            12250 (45 FR 72995, November 4, 1980),        overall meaning of this subpart, or the
changes, both substantive and stylistic,     is responsible for coordinating Federal       meaning of any of its component
that were incorporated in this Interim       enforcement of most nondiscrimination         sections.
Final Rule resulted from this input. For     laws that apply to federally-assisted         Section 37.1 What is the purpose of
example, because some of these officials     programs and activities. Executive            this part?
told CRC that the 60-day period              Order 12067 (43 FR 28967, July 5, 1978)
provided in the JTPA regulations for         requires consultation with the Equal            This section is identical to 29 CFR
recipients to process discrimination         Employment Opportunity Commission             34.1(a), except that references to JTPA,
complaints was insufficient, the rule        (EEOC) about regulations that involve         and to its Section 167, have been
extends the relevant time period to 90       equal employment opportunity. The             changed to refer to WIA and its Section
days.                                        Age Discrimination Act of 1975, as            188.
61694        Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

Section 37.2 To whom does this part        recipients’ obligations to comply with      with similar terms used in regulations
apply, and what is the scope of this       those provisions has been omitted.          implementing other civil rights
part?                                         It is important to understand the        legislation that applies to recipients of
                                           distinction between the concept of          Federal financial assistance. Similarly,
  This section contains requirements
                                           ‘‘program accessibility,’’ referred to in   where feasible, this Interim Final Rule
similar to those in 29 CFR 34.1(b) and
                                           this paragraph, and the separate concept    uses the terms contained in the
(d). The references to other regulatory
                                           of architectural accessibility, both of     proposed WIA program regulations
sections within part 34 have been
                                           which a recipient is required to provide    issued by the Department’s Employment
changed to reflect the numbering of this
                                           under Subpart C.                            and Training Administration (ETA).
Interim Final Rule, and references to         The requirement of program               However, because this regulation must
JTPA have been changed to refer to         accessibility means that when viewed in     be compatible with civil rights
WIA. Also, some of the material has        its entirety, the program or activity       enforcement on a broad scale as well as
been presented in outline form to          provided by the recipient must be           with ETA’s WIA program, this rule
improve its readability. None of these     readily accessible to qualified             defines and uses certain terms, such as
changes is intended to alter the meaning   individuals with disabilities. 29 CFR       ‘‘qualified interpreter,’’ ‘‘recipient,’’
of the section.                            32.27. The recipient must ensure that       ‘‘registrant,’’ and ‘‘applicant,’’ as terms
  Language has been added to               participants with various physical and      of art, not necessarily identical to the
paragraph 37.2(a) to clarify that the      mental disabilities will have access to     definitions that are used elsewhere for
requirements in this part apply to         the program or activity. This obligation    the same terms.
programs and activities that are part of   to make the program or activity                The following list explains the
the One-Stop delivery system and that      accessible in advance exists                definitions that differ in substantive
are operated by One-Stop partners listed   independent of a request for a particular   ways, either from their counterparts in
in WIA Section 121(b), including those     accommodation by a specific                 29 CFR 34.2, from ETA’s program
partners financially assisted by           individual. Therefore, even if an           regulations, or from regulations that
grantmaking agencies other than the        individual with a disability requests an    implement the nondiscrimination
Department of Labor, to the extent that    accommodation that would impose an          provisions of other legislation providing
the programs and activities are being      undue hardship on the recipient, the        Federal financial assistance. It also lists
conducted as part of the One-Stop          recipient still has an overall obligation   definitions that have been borrowed
delivery system. The requirements in 29    to make the program or activity             from other civil rights regulations, and
CFR part 34 continue to apply to           accessible.                                 explains certain definitions that might
programs and activities that are              Architectural accessibility, by          appear to differ substantively from their
implemented under and authorized by        contrast, relates to the construction and   counterparts in 29 CFR 34.2, but that
JTPA.                                      design of facilities. 29 CFR 32.28.         have not been substantively changed.
  In those cases in which States that      Architectural accessibility standards are   Definitions that obviously would not be
have opted to implement WIA before         similar to building codes. A recipient      substantively different from those in
July 1, 2000, are operating WIA Title I    must comply with the architectural          Section 34.2, but that simply would
programs and activities simultaneously     accessibility standards whether or not a    substitute references to WIA for
with programs and activities under         particular individual with a disability     references to JTPA, are not listed.
JTPA, the WIA Title I programs and         has requested a reasonable                     This list also contains definitions of
activities must comply with the            accommodation. 29 CFR 32.13(d). A           terms that are not defined in the
requirements in this part, while the       recipient’s obligation to comply with       regulations implementing other civil
JTPA programs and activities must          the architectural accessibility standards   rights legislation that applies to
comply with the requirements in 29         is also independent of its program          recipients of Federal financial
CFR part 34.                               accessibility obligations.                  assistance, or in WIA’s program
Section 37.3 How does this part affect        Paragraph 37.3(d): This paragraph has    regulations. Generally, these terms
a recipient’s other obligations?           been added to parallel Paragraph            either are used solely within this part,
                                           37.3(c), and to emphasize that recipients   or have greater significance within this
   This section generally contains the     that are also employers, employment         part than they do within other
same requirements as 29 CFR 34.1(c).       agencies, or other entities covered by      regulatory systems. With regard to these
The language of 29 CFR 34.1(c)(6),         Title I of the ADA have additional          terms, the list explains the reason each
which dealt with retroactivity, is         obligations imposed by that title.          term has been defined, and/or the
inapplicable to this Interim Final Rule,      Paragraph 37.3(e)(9): This paragraph,    source of the definition.
and has been omitted; in addition,         which refers to the anti-discrimination        Aid, benefits, services, or training: In
references to JTPA have been changed to    provision of the Immigration and            29 CFR 34.5, this phrase is used to
refer to WIA. Other differences between    Nationality Act, has been added at the      convey to the reader the comprehensive
this section and the corresponding         request of the Department of Justice.       nature of the areas in which a JTPA-
paragraphs of the JTPA regulations are     This provision prohibits: (a)               assisted program or activity could not
listed below.                              Discrimination on the basis of              discriminate on the basis of disability.
   Paragraph 37.3(b): This paragraph has   citizenship status and national origin      For consistency, the phrase has been
been amended to incorporate by             with respect to hiring, firing, or          adopted throughout part 37; generally, it
reference the provisions of Subparts B     recruitment or referral for employment      replaces the phrase ‘‘financial aid,
and C and Appendix A of 29 CFR part        for a fee; and (b) unfair documentary       service, or benefit,’’ which was used
32, which implement the requirements       practices with respect to verification of   intermittently in part 34, and which has
of Section 504 pertaining to               employment eligibility.                     a similar meaning. No substantive
employment practices, employment-                                                      change is intended by the use of the
related training, program accessibility,   Section 37.4 What definitions apply to      phrase.
and accommodations. As a result, the       this part?                                     Section (1) of this definition uses the
language from 29 CFR 34.1(c)(2) that         To the extent possible, the definitions   phrase ‘‘core and intensive services.’’
stated that part 34 did not affect         contained in this section are consistent    These terms are used in WIA to describe
              Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                           61695

two of the three general types of              amended to ‘‘other immigrants               the term ‘‘applicant,’’ the passage of
employment and training services that          authorized * * *.’’ These changes have      WIA has altered the type of financial
are provided to participants under the         been made for consistency with the          assistance that will be provided under
WIA program (the third type is training        language of Section 188(a)(5) of WIA.       the WIA program, and the way in which
services). The terms are defined at               These regulations are concerned with     that assistance will be provided. The
length in the WIA statute: a list of ‘‘core    nondiscrimination and equal                 definitions of ‘‘financial assistance’’ and
services’’ is provided in Section              opportunity only. They do not limit         ‘‘financial assistance under WIA Title I’’
134(d)(2), and a similar list of ‘‘intensive   eligibility or impose preferences for       have been drafted accordingly. The
services’’ is provided in Section              services on the basis of citizenship.       Department is particularly interested in
134(d)(3)(C). Briefly, ‘‘core services’’ are      Employment practices: This               receiving comments on these new
those services available at a baseline         definition has been moved to the            definitions.
level to all participants, while               definition section from 29 CFR 34.7(a).        The new definitions have been
‘‘intensive services’’ are those services      Consistent with plain-language              modeled on the definitions of the term
available to individuals who are               guidelines, the definition also has been    ‘‘financial assistance’’ provided in
assessed as needing additional                 slightly rewritten, and has been            various Federal regulations that also
assistance in order to find or retain          presented in outline form to improve its    deal with nondiscrimination in
employment. Compare Section 134(d)(2)          readability. None of these changes is       programs and activities receiving
with Section 134(d)(3)(A).                     intended to alter the meaning of the        Federal financial assistance. Examples
   Section (4) of this definition refers to    definition.                                 include the Office of Personnel
‘‘work opportunities.’’ This term is              Employment-related training: This        Management regulations at 5 CFR
intended to encompass On-the-Job               definition has been included in             900.403(c); the Department of Justice
Training, subsidized work, internships,        response to questions from a number of      regulations at 28 CFR 42.613(e); and the
or work experience that a participant          recipients who were familiar with the       Department of Health and Human
obtains through a WIA Title I-                 term as it was defined under the            Services regulations at 45 CFR 86.2(g)
financially assisted program or activity.      Comprehensive Employment and                and 1203.3(c).
See the discussion of the definition of        Training Act (CETA), the predecessor           Paragraph (5) of the definition of
‘‘On-the-Job Training’’ later in this          statute to JTPA. Under WIA, the term is     ‘‘financial assistance under WIA Title I’’
section.                                       defined more broadly than it was under      includes ‘‘[a]ny other agreement,
   Applicant: The passage of WIA has           CETA.                                       arrangement, contract, or subcontract
altered the method by which                       Entity: This definition is expanded      * * * or other instrument that has as
individuals seeking federally-assisted         from the definition in 29 CFR 34.2, to      one of its purposes the provision of
aid, benefits, services, or training enter     encompass current and potential             assistance or benefits under WIA Title
the system. The definition of the term         changes in business structures, and to      I.’’ Under this paragraph, ‘‘financial
‘‘applicant’’ has been changed                 emphasize that such entities as Indian      assistance under WIA Title I’’ includes
accordingly, to signify that, for purposes     tribes or tribal organizations and Native   such ‘‘agreements or arrangements’’ as
of this part, an individual is considered      Hawaiian organizations, all of which are    the Memoranda of Understanding
an ‘‘applicant’’ at the point at which s/      eligible to receive financial assistance    (MOUs) required by Section 121(c) of
he submits personal information in             under WIA Title I, are included within      WIA, and inclusion on a list of eligible
response to a request by the recipient for     the definition. See WIA Section 166,        training providers. See the discussion of
such information. Because ETA’s                ‘‘Native American Programs.’’               the definition of ‘‘recipient’’ later in this
program regulations that implement                Facility: This definition is expanded    section.
other provisions of WIA refer to the           from the definition in 29 CFR 34.2, in         Fundamental alteration: This
‘‘registration’’ process, rather than the      order to follow generally the definition    definition is derived from the Supreme
application process, this part uses the        of the same term set forth in 28 CFR        Court’s interpretation of the term in the
term ‘‘registrant’’ interchangeably with       35.104, in the regulations implementing     ADA Title II case of Olmstead v.
‘‘applicant.’’ CRC is particularly             Subtitle A of Title II of the ADA. That     Zimring, 119 S.Ct. 2176, 67 USLW 3683,
interested in receiving comments on            subtitle prohibits discrimination on the    67 USLW 4567, 1999 WL 407380 (U.S.,
this definition and its effect, if any, on     basis of disability by public entities.     June 22, 1999), at 12–13 and n.16.
the data collection obligations of                The reference to ‘‘indoor constructs’’      Grantmaking agency: This term
recipients.                                    such as office cubicles and computer        replaces the term ‘‘granting agency’’ that
   Departmental grantmaking agency:            kiosks has been added in order to clarify   was used in 29 CFR part 34. See the
This definition was added in order to          that recipients may be required to alter    discussion of the definitions of
help readers distinguish between the           such constructs to make them accessible     ‘‘Departmental grantmaking agency’’
meaning of this term and of the terms          to and usable by individuals with           and ‘‘Federal grantmaking agency’’
‘‘grantmaking agency’’ and ‘‘Federal           disabilities. See paragraph (2)(i) of the   elsewhere in this section.
grantmaking agency’’ as used in this           definition of ‘‘reasonable                     Individual with a disability: The
part. See the discussion of the                accommodation’’ in Section 37.4.            definition of this term is identical to the
definitions of the latter terms elsewhere         Federal grantmaking agency: This         definition of the same term in Section
in this section of the preamble.               definition was added in order to help       34.2, with the following exceptions:
   Discrimination on the ground of             readers distinguish between the                (1) The reference to homosexuality or
citizenship: This definition is identical      meaning of this term and of the terms       bisexuality has been deleted. This
to the definition of the same term in          ‘‘grantmaking agency’’ and                  change is not a substantive change,
Section 34.2, except that the term             ‘‘Departmental grantmaking agency’’ as      since Section 1(ii) of the definition of
‘‘asylee’’ has been inserted into the list     used in this part. See the discussion of    the term ‘‘disability’’ retains the
of immigration statuses that are               the definitions of the latter terms         explanation that the term ‘‘impairment’’
protected against discrimination. In           elsewhere in this section of the            does not include homosexuality or
addition, the phrase ‘‘other individuals       preamble.                                   bisexuality. The deletion was made
authorized by the Attorney General to             Financial assistance and Financial       merely to eliminate unnecessary
work in the United States’’ has been           assistance under Title I of WIA: As with    redundancy in the rule.
61696         Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

   (2) The list of the individuals to         obtains such opportunities is a                regarding individuals with limited
whom the term ‘‘individual with a             ‘‘participant’’ under this definition. See     English skills. See the discussion of
disability’’ does not apply has been          the discussion of the definition of ‘‘aid,     Section 37.35 in this preamble.
expanded to clarify that with regard to       benefits, services, or training’’ earlier in      Qualified individual with a disability:
employment, there would exist two             this section.                                  This definition has been amended for a
circumstances under which the term               The definition of ‘‘participant’’ in part   number of reasons. First, the definition
would not apply to an individual who          34 excluded individuals receiving              has been restructured in order to
has a currently contagious disease or         ‘‘post-termination and follow-up               incorporate the term of art ‘‘aid,
infection. Such an individual would not       services.’’ However, Section                   benefits, services, or training,’’ which is
be an ‘‘individual with a disability’’        134(d)(2)(K) of the WIA statute includes       introduced and defined in this Interim
either if that disease or infection           follow-up services among the list of           Final Rule. The term is used in the
prevents him or her from performing the       ‘‘core services’’ that participants may        definition of ‘‘qualified individual with
duties of the job in question, or if his or   receive; as a result, this language has        a disability’’ to encompass most, if not
her employment, because of that disease       been deleted from the definition of            all, of the circumstances (other than
or infection, would constitute a direct       ‘‘participant’’ in Section 37.4. It should     employment) in which a recipient might
threat to the health and safety of others.    be noted that this definition differs from     need to determine the qualifications of
This change has been made for                 the definition of the term that is             an individual with a disability to
consistency with the definition of            included in ETA’s regulations                  receive WIA Title I—financially assisted
‘‘individual with a disability’’ enacted      implementing other provisions of WIA.          services, financial or other aid, or
by Congress in Title IV, Section 403 of          The definition in Section 37.4              benefits. See the definition of ‘‘aid,
WIA, the Rehabilitation Act                   clarifies that the term ‘‘participant’’        benefits, services, or training’’ in
Amendments of 1998, 29 U.S.C. 701,            includes, but is not limited to,               Section 37.4, and the discussion in this
Pub.L. 105–220, Title IV, Section 401 et      applicants receiving any services under        preamble about that definition.
seq., Aug. 7, 1998, 112 Stat. 1092.           state Employment Service programs,                Second, the definition as amended is
   Labor market area: The definition of       and claimants receiving any services           intended to underscore the distinction
this term, which appears in the               under state Unemployment Insurance             between the test for determining
definition of ‘‘population eligible to be     programs. Because the definition of the        whether an individual with a disability
served,’’ is taken directly from Section      term in the JTPA nondiscrimination             is qualified for such aid, benefits,
101(18) of WIA.                               regulations also encompassed such              services, or training—including
   Local Workforce Investment Area            individuals, this clarification is not a       employment-related training—and the
(LWIA) grant recipient: This term is new      substantive change. Rather, the                test for determining whether such an
under WIA. The term describes the             clarifying language was included simply        individual is qualified for employment.
entity that receives WIA Title I financial    to recognize that different recipients         Under paragraph (1) of the definition,
assistance from a Governor. It replaces       may use different terminology to refer to      such an individual is qualified for
the terms ‘‘SDA grant recipient’’ and         individuals who receive benefits or            employment if, with or without
‘‘substate grantee’’ that were used under     services under their programs.                 reasonable accommodation, he or she is
JTPA.                                            It is important to recognize that under     capable of performing ‘‘the essential
   National Programs: This definition         the One-Stop system introduced by              functions of the job.’’ The definition of
has been rewritten to encompass entities      WIA, various programs and activities           the term in 29 CFR 34.2 applied the
receiving financial assistance under          that are authorized by Federal laws            same test to employment-related
Title I, Subtitle D of WIA, and to clarify    other than WIA may be part of a One-           training. However, employment-related
that Job Corps is a National Program          Stop center that also provides WIA Title       training programs are not
under the definition.                         I—financially assisted programs and            ‘‘employment,’’ and therefore the focus
   On-the-Job Training: This definition is    activities. In such cases, any individual      in determining whether an individual
taken directly from Section 101(31) of        who receives aid, benefits, services, or       with a disability is ‘‘qualified’’ for such
WIA. Three words have been added to           training from the One-Stop center is a         a program should be upon whether the
the definition in order to clarify that       participant for purposes of the                individual meets the essential eligibility
such training is ‘‘provided to a paid         nondiscrimination and equal                    requirements for the program. Paragraph
participant while the participant is          opportunity provisions of WIA and this         (2) of the definition, which relates to
engaged in productive work.’’                 part.                                          aid, benefits, services, or training, has
   Participant and participation: The            For example, a One-Stop center may          been amended accordingly.
definitions of these terms contain the        include an Employment Services                    Third, the amended definition is
same elements as the definition of the        program authorized and financially             intended to clarify that an individual
single term ‘‘participant’’ in 29 CFR         assisted under the Wagner-Peyser Act,          with a disability who is seeking aid,
34.2. The rule defines the term               29 U.S.C. 49, as well as core and              benefits, services, or training is qualified
‘‘participation’’ separately in order to      intensive service programs authorized          if he or she meets the essential
help readers better understand both           under WIA Title I. Under these                 eligibility requirements for receiving
terms. Also, the new definitions of the       circumstances, an individual who               such aid, benefits, services, or training,
terms ‘‘participant’’ and ‘‘participation’’   receives Wagner-Peyser employment              with or without reasonable
clarify that the terms encompass              services from the One-Stop center will         accommodation or modification. The
individuals who are receiving aid,            fit the definition of ‘‘participant’’ in       reference to ‘‘reasonable
benefits, or training under WIA Title I,      Section 37.4.                                  accommodation or reasonable
as well as the ‘‘services’’ included in the      Parties to a hearing: This definition       modification’’ has been added in order
definition in 29 CFR 34.2. In addition,       has been amended to clarify that in            to clarify that the definition is intended
because the term ‘‘aid, benefits, services,   certain cases, a Governor may be a party       to encompass ‘‘situations where an
or training’’ is defined as including         to a hearing.                                  insistence on continuing past
work opportunities obtained through a            Population eligible to be served: This      requirements and practices might
WIA Title I—financially assisted              term is used in the section of this rule       arbitrarily deprive genuinely qualified
program or activity, an individual who        that explains recipients’ obligations          (individuals with disabilities) of an
              Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                          61697

opportunity to participate in a covered       modifications to meet the needs of a          assistance to programs and activities in
program.’’ Brennan v. Stewart, 834 F.2d       particular individual for access.             the One-Stop delivery system, to ensure
1248, 1261 (5th Cir. 1988) (discussing           Recipient: This definition has been        the consistent application of Federal
Section 504).                                 amended to clarify that where a               civil rights law.
   Qualified interpreter: This definition     Governor operates a program or activity,         The Department is particularly
is based on the definition of the same        either directly or through a State agency,    interested in receiving comments
term contained in 28 CFR 35.104, the          using discretionary funds apportioned         regarding the effect of this part upon
regulations implementing Title II of the      to him/her under WIA Title I (rather          One-Stop partners.
ADA. In this Interim Final Rule,              than disbursing the funds to another             Registrant: See the explanation of the
however, the term is used in a broader        recipient), the Governor is also a            term ‘‘applicant’’ in this section.
context, to implement the prohibition of      recipient. In addition, JTPA-related             Sectarian activities: This term appears
discrimination based on national origin       terminology (such as references to SDA        in Section 37.6(f), which implements
as well as the prohibition of                 and Substate grant recipients) has been       Section 188(e) of WIA. With certain
discrimination against qualified              replaced by WIA-related terminology           exceptions, that statutory section bars
individuals with disabilities. In this        (such as references to LWIA grant             participants from being employed to
Rule, the term encompasses the                recipients), and the list of examples of      carry out the construction, operation, or
interpretation of spoken and written          recipients has been numbered and              maintenance of any part of any facility
languages, such as Spanish, for               presented vertically, rather than in          that is or will be used for sectarian
individuals with limited English skills,      paragraph form, for greater ease of           instruction or religious worship.
as well as interpretation of spoken and       reading. Finally, paragraphs (10) and            Service provider: Language has been
written languages into symbolic               (11) of the definition, ‘‘outreach and        inserted into this definition to clarify
languages, such as American Sign              admissions agencies’’ and ‘‘placement         that the term encompasses any
Language, for individuals with                agencies,’’ have been amended to clarify      ‘‘provider of aid, benefits, services, or
disabilities.                                 that Job Corps contractors that perform       training to’’ any WIA Title I—financially
   Reasonable accommodation: This             these functions are also recipients.          assisted program or activity. The
                                                 For purposes of this part, entities that
definition is based on the definition of                                                    definition of the same term in 29 CFR
                                              participate as partners in a One-Stop
the same term contained in 29 CFR                                                           34.2 referred only to the ‘‘operator’’ of
                                              delivery system are treated as
1630.2, in the regulations implementing                                                     a JTPA-funded program or activity. This
                                              ‘‘recipients,’’ and are subject to the
Title I of the Americans with                                                               change is not a substantive change; it
                                              nondiscrimination and equal
Disabilities Act. Although Title I and its                                                  was made only to clarify the definition.
                                              opportunity obligations of this part, to
implementing regulations apply the                                                             Additional language has been added
                                              the extent that they participate in the
concept of ‘‘reasonable accommodation’’                                                     to the definition to clarify that
                                              One-Stop system. Such partners may
only in the context of employment, this       include, but are not limited to,              organizations that are selected and/or
Interim Final Rule requires recipients to     mandatory and additional partners             certified as eligible providers of training
provide ‘‘reasonable accommodation’’ in       listed in WIA section 121(b), such as         services under WIA are service
the additional contexts of aid, benefits,     entities providing employment and             providers under this Interim Final Rule,
services, and training. See Section 37.8.     training activities carried out under the     regardless of whether any participants
   Under the requirements of Section          Community Service Block Grant Act (42         actually select the organization to
188 of WIA and this part, as well as          U.S.C. 9901 et seq.), or programs             provide them with training.
under other Federal civil rights laws         authorized under section 6(d)(4) of the          Small recipient: This definition
and their implementing regulations, a         Food Stamp Act of 1977 (7.U.S.C.              contains the same requirements as the
recipient must provide both accessible        2015(d)(4)), if these entities participate    definition in 29 CFR 34.2. The
facilities (that is, both program             as partners in the One-Stop delivery          definition has been rewritten to explain
accessibility and architectural               system.                                       that such a recipient both (a) serves a
accessibility) and reasonable                    With regard to issues involving            total of fewer than 15 beneficiaries
accommodation for individuals with            nondiscrimination and equal                   during the entire grant year, and (b)
disabilities. It is important to              opportunity, the One-Stop-related             employs fewer than 15 employees on
understand the difference between these       programs and activities operated by           any given day during the grant year.
two requirements.                             such partners may fall under the              Again, this alteration is not intended as
   Providing accessible facilities requires   jurisdiction of both CRC and the equal        a substantive change; it was made only
a recipient to take advance actions, in       opportunity office of the Federal             to clarify the definition.
order to be ready when persons with           grantmaking agency. See Section                  State Programs: This definition adds
disabilities seek aid, benefits, services,    37.85(c) and the discussion thereof in        language explaining that the term
training, or employment from that             this preamble. As a result, local             includes State Employment Service
recipient at some point in the future.        Workforce Investment Boards, when             agencies, and/or State unemployment
See the discussion of ‘‘program               developing and entering into MOUs             compensation agencies, that operate
accessibility’’ and ‘‘architectural           with One-Stop partners pursuant to the        independently of a SESA. Again, this
accessibility’’ in the discussion in this     requirements of WIA Section 121(c),           change has been included solely to
preamble about Paragraph 37.3(b).             should include attention to equal             clarify the definition.
   By contrast, providing reasonable          opportunity issues that may affect the           Supportive services: This definition is
accommodation for an individual with a        One-Stop partners or the delivery             taken directly from WIA Section
disability requires the recipient to make     system. Such issues include how               101(46).
efforts to meet the specific needs of the     discrimination complaints will be                Terminee: This definition has been
particular individual who is currently        handled and how the cost of reasonable        rewritten to explain that the term refers
seeking aid, benefits, services, training,    accommodations will be shared. For its        to a participant whose participation in
or employment from the recipient.             part, CRC is in the process of developing     the program terminates, voluntarily or
Reasonable accommodation may require          MOUs with other Federal grantmaking           involuntarily, during the applicable
making specific structural or other           agencies that provide financial               program year. Again, this change has
61698         Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

been included solely to clarify the          Paragraph 37.6(b): This introductory        the objectives of ‘‘the nondiscrimination
definition.                               paragraph is identical to the second           and equal opportunity provisions of
   Undue hardship: As the definition      sentence of 29 CFR 34.4(a).                    WIA and this part,’’ as well as those of
itself notes, the meaning of this term       Paragraphs 37.6(b)(1)–(7): These            the program or activity in question.
differs, depending upon the context in    paragraphs are identical to 29 CFR                As in other paragraphs, references to
which it is used. The first part of the   34.4(a)(1)–(7), with the following             JTPA have been changed to refer to
definition explains the meaning of the    exceptions:                                    WIA.
term in the context of reasonable            (1) references to ‘‘service, financial         Paragraph 37.6(e): This paragraph
accommodation for individuals with        aid, or benefit’’ have been changed to         contains the same requirements as 29
disabilities. This part of the definition,‘‘aid, benefits, services, or training,’’ as   CFR 34.4(c). Again, consistent with
like the definition of ‘‘reasonable       explained in the discussion of the             plain-language guidelines, the
                                          definition of the latter term in Section       paragraph has been organized slightly
accommodation,’’ is based on the
                                          37.4 above; and                                differently from the JTPA paragraph,
definition of ‘‘undue hardship’’
                                             (2) references to JTPA have been            and presented in outline form to
contained in 29 CFR 1630.2, in the        changed to refer to WIA.
regulations implementing Title I of the                                                  improve its readability. Also, references
                                             Paragraph 37.6(b)(8): This paragraph        to JTPA have been changed to refer to
Americans with Disabilities Act. As       is identical to 29 CFR 34.4(a)(10), except
explained above in the discussion of the                                                 WIA.
                                          that a reference to WIA Title I has been          Paragraph 37.6(f): This paragraph
definition of ‘‘reasonable                inserted.                                      prohibits participants in a WIA Title I—
accommodation,’’ this Interim Final          Paragraphs 37.6(c)(1)–(2): These            financially assisted program or activity
Rule requires recipients to provide       paragraphs contain requirements similar        from being employed or trained to
reasonable accommodation to qualified     to those in 29 CFR 34.4(a)(8) and (9).         construct, operate, or maintain any part
individuals with disabilities with regard Paragraph 37.6(c)(1) signifies that a          of a facility that is or will be used
to aid, benefits, services, and training, as
                                          recipient must not provide significant         primarily for sectarian instruction or
well as employment, except where such     assistance under any circumstances to          religious worship. This paragraph is
accommodation would cause undue           any agency, organization, or person that       directly based on, and implements,
hardship. See Section 37.7.               discriminates on a prohibited ground.          Section 188(a)(3) of WIA.
   The second part of the definition      Similarly, Paragraph 37.6(c)(2) signifies         Paragraph 37.6(g): This paragraph is
explains the meaning of the term in the   that except where doing so would cause         identical to 29 CFR 34.4(d).
context of religious accommodations.      undue hardship, a recipient may not
This part of the definition is based on   refuse to accommodate an individual’s          Section 37.7 What specific
Supreme Court decisions, most notably     religious practices or beliefs, even if the    discriminatory actions based on
the leading case of Trans World           refusal is not based on dislike of or          disability are prohibited by this part?
Airlines, Inc. v. Hardison, 432 U.S. 63,  disagreement with the individual’s                This section contains the same
81, 84 (1977).                            religion. Again, this alteration is not        requirements as 29 CFR 34.5, with
   WIA Title I—financially assisted       intended as a substantive change from          additional material modeled on the
program or activity: This definition      the regulations implementing JTPA; the         regulations implementing Title II of the
contains the same elements as the         change was made only to clarify the            ADA. Differences between this section
definition of the term ‘‘JTPA-funded      intent of the regulations.                     and the corresponding sections of the
program or activity’’ in 29 CFR 34.2.        As in other paragraphs, references to       JTPA nondiscrimination regulations or
The definition has been presented in      JTPA have been changed to refer to             ADA regulations are discussed below.
outline form to improve its readability.  WIA.                                              Paragraphs 37.7(a)(1)–(3): These
                                             Paragraph 37.6(d): This paragraph           paragraphs are identical to 29 CFR
   The remainder of the definitions in
                                          contains the same requirements as 29           34.5(a)(1)–(3), except that references to
Section 37.4 are either unchanged from
                                          CFR 34.4(b). Consistent with plain-            JTPA have been changed to refer to Title
their counterparts in 29 CFR 34.2, or
                                          language guidelines, the paragraph has         I of WIA.
have been changed merely to refer to
                                          been organized slightly differently from          Paragraph 37.7(a)(4): This paragraph
WIA rather than JTPA.
                                          the JTPA paragraph, and presented in           is identical to 29 CFR 34.5(a)(4), with
Section 37.5 What forms of                outline form to improve its readability.       the following exceptions:
discrimination are prohibited by this     Also, the word ‘‘outreach’’ has been              (1) The paragraph specifies that,
part?                                     added to the list of examples of the           except when necessary to accommodate
                                          types of administrative determinations         a qualified individual with a disability,
  This section is identical to 29 CFR     in which discrimination is prohibited.         a recipient may not provide
34.3, except that references to JTPA      Because the list, both in the                  ‘‘segregated’’ aid, benefits, services, or
have been changed to refer to WIA.        corresponding JTPA regulation and in           training to individuals with disabilities.
Section 37.6 What specific                this paragraph, is exemplary rather than       This addition is intended to clarify and
discriminatory actions, based on          restrictive, the addition of this word         emphasize that a recipient may provide
prohibited grounds other than disability, makes no substantive change in the             special programs or activities designed
are prohibited by this part?              paragraph.                                     for and limited to individuals with
                                             For consistency with the language of        disabilities, but may not require that
  This section contains the same          Section 37.7, the reference to                 individuals with disabilities attend only
requirements as 29 CFR 34.4.              ‘‘standards, procedures or criteria’’ has      such programs or activities. In other
Differences between this regulation and been changed to ‘‘standards, procedures,         words, qualified individuals with
the JTPA regulation are explained         criteria, or administrative methods.’’ See     disabilities must be offered the option of
below.                                    the discussion in this preamble about          participating in the same programs or
  Paragraph 37.6(a): This paragraph is    Paragraph 37.7(e). Similarly, the              activities that are offered to non-
identical to the first sentence of 29 CFR paragraph has been reworded to                 disabled individuals. This change is not
34.4(a), except that references to JTPA   prohibit practices that defeat or              intended to provide a substantive
have been changed to refer to WIA.        substantially impair accomplishment of         change from the JTPA
              Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                          61699

nondiscrimination regulations. It was         qualified individuals with disabilities.         Paragraph 37.7(h), which discusses
inserted only to clarify the intent of the    This wording has been changed to              licensing and certification programs,
regulations.                                  prohibit methods that have ‘‘the              gives CRC jurisdiction only over
   (2) The beginning of 29 CFR 34.5(a)(4)     purpose or effect of’’ such                   recipients of WIA Title I financial
prohibits recipients from providing           discrimination. This addition was made        assistance. For example, a state
different or separate ‘‘aid, benefits, or     for two reasons:                              electrician certification program run by
services’’ to individuals with                   (a) because WIA Section 188 makes          a State agency that does not benefit from
disabilities; the end of the same             clear that purposeful discrimination          WIA Title I financial assistance would
paragraph refers to ‘‘aid, benefits,          against qualified individuals with            not be required to comply with this
services or training.’’ For consistency,      disabilities is also prohibited; and          paragraph. Such an agency would,
the paragraph has been modified to refer         (b) to make the language of Paragraph      however, be required to comply with
to ‘‘aid, benefits, services, or training’’   34.5(d)(1) consistent with the language       the similar requirements set forth in 28
in both places. Again, this change is not     of the remaining paragraphs in the            CFR 35.130(b)(6), in the ADA Title II
intended to provide a substantive             section, which prohibit activities that       regulations.
change from the meaning of the                have ‘‘the purpose or effect of’’                Paragraphs 37.7(i)–(l): These
regulations implementing JTPA.                discrimination.                               paragraphs are based on 28 CFR
   Paragraphs 37.7(a)(5)–(6): These              (3) References to JTPA have been           35.130(b)(8), (c), (f), and (g), from the
paragraphs are identical to 29 CFR            changed to refer to Title I of WIA.           regulations implementing Title II of the
34.5(a)(6)–(7), except that references to        None of these changes is intended to       ADA. Differences between the
JTPA have been changed to refer to Title      alter the meaning of the paragraphs from      paragraphs and the corresponding
I of WIA.                                     the meaning of the corresponding              paragraphs of the ADA Title II
   Paragraph 37.7(b): This paragraph          paragraphs in the JTPA                        regulations are explained below.
tracks the language of 29 CFR 34.5(a)(5).     nondiscrimination regulations.                   (1) References to ‘‘public entity’’ have
Like Paragraph 37.6(c)(1), it has been           Paragraph 37.7(f): This paragraph          been changed to ‘‘recipient’; and
placed in a separate paragraph to clarify     contains the same requirements as 29             (2) References to ‘‘service(s)’’ have
that a recipient must not provide             CFR 34.5(e). Consistent with plain-           been changed to ‘‘aid, benefits, services,
significant assistance to any agency,         language guidelines, the paragraph has        or training.’’
organization, or person that                  been organized slightly differently from         Both of these changes have been made
discriminates on the basis of disability,     the corresponding paragraph in the            in order to tailor the regulations to the
even if the recipient has no                  JTPA nondiscrimination regulations,           requirements of the WIA program.
discriminatory motivation in providing        and presented in outline form to              Neither change is intended to alter the
the assistance.                               improve its readability. Also, references     meaning of the paragraphs.
   Paragraphs 37.7(c)–(d): These              to JTPA have been changed to refer to            Paragraph 37.7(m): This paragraph is
paragraphs are identical to 29 CFR            WIA.                                          identical to 29 CFR 34.5(g), except that
34.5(b)–(c), except that references to           Paragraphs 37.7(g)–(h): These              additional punctuation has been added
JTPA have been changed to refer to Title      paragraphs are based on 28 CFR                to improve the material’s clarity.
I of WIA.                                     35.130(b)(5)–(6), from the regulations           Paragraph 37.7(n): This paragraph
   Paragraph (d) requires recipients to       implementing Title II of the ADA.             contains the same requirements as 29
administer WIA Title I-financially            Differences between the paragraphs and        CFR 34.5(h). The paragraph has been
assisted programs and activities in ‘‘the     the corresponding paragraphs of the           presented in outline form to improve its
most integrated setting appropriate to        ADA Title II regulations are explained        readability.
the needs of qualified individuals with       below.                                           Paragraph 37.7(o): This paragraph is
disabilities.’’ This language means that         (1) Two changes have been made in          based on 28 CFR 35.130(e), from the
the recipient must provide programs or        order to tailor the regulations to the        regulations implementing Title II of the
activities in a setting that enables          requirements of the WIA program:              ADA, except that references to the ADA
individuals with disabilities to interact        (a) The reference in Paragraph 37.7(g)     have been replaced by references to
with non-disabled persons to the fullest      to ‘‘procurement contractors’’ has been       WIA. This change is not intended to
extent possible.                              changed to ‘‘contractors’; and                alter the meaning of the paragraph.
   Paragraph 37.7(e): This paragraph             (b) References to ‘‘public entity’’ have
                                              been changed to ‘‘recipient’; and             Section 37.8 What are a recipient’s
contains the same requirements as 29
                                                 (2) References to the ADA have been        responsibilities regarding reasonable
CFR 34.5(d). Differences between the
                                              replaced by references to WIA.                accommodation and reasonable
paragraph and the corresponding
                                                 These provisions have been modeled         modification for individuals with
paragraphs of the JTPA
                                              upon the ADA Title II regulations in          disabilities?
nondiscrimination regulations are
explained below.                              order to ensure that requirements under          This section is based on 28 CFR
   (1) Consistent with plain-language         Section 188 of WIA follow generally the       35.130(b)(7), which requires public
guidelines, the word ‘‘utilize’’ in           requirements of ADA Title II. Many            entities to make ‘‘reasonable
Paragraph 34.5(d) has been replaced by        recipients of WIA Title I financial           modifications’’ in ‘‘policies, practices or
‘‘use.’’                                      assistance are also subject to the            procedures when the modifications are
   (2) For consistency with the language      requirements of Title II, which applies       necessary to avoid discrimination on the
of Section 37.6(d), the reference to          to public entities including State and        basis of disability.’’ To this requirement
‘‘criteria or administrative methods’’ has    local governments and their                   has been added the obligation that in
been changed to ‘‘standards, procedures,      departments, agencies, and                    providing aid, benefits, services,
criteria, or administrative methods.’’ See    instrumentalities. See 42 U.S.C. 12131.       training, or employment, a recipient
the discussion in this preamble about         Modeling the WIA regulations on the           must make ‘‘reasonable
Paragraph 37.6(d).                            ADA Title II regulations ensures that         accommodation’’ for qualified
   (3) Paragraph 34.5(d)(1) prohibited the    these recipients are subject to similar       individuals with disabilities.
use of such methods that have ‘‘the           obligations and responsibilities under           The two concepts are similar in that
effect of’’ discriminating against            both laws.                                    they both require a recipient to consult
61700         Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

with each individual with a disability          Paragraph 37.9(b): Two words have            Paragraphs 37.9(e)(1) and (2): These
who requests an accommodation(s) or          been added to this paragraph in order to     paragraph generally contain the same
modification(s); to make an individual       clarify its meaning. The first sentence of   information as 29 CFR 34.6(e). The
determination about the alterations          the paragraph requires a recipient to        information has been presented in
necessary in each case; and to take          ‘‘furnish appropriate auxiliary aids or      outline form to improve its readability.
appropriate action based upon that           services when necessary’’ to give            In addition, two sentences have been
determination. The concepts differ,          individuals with disabilities an equal       added to Paragraph 37.9(e)(1) to
however, in the standards used to            opportunity to participate in the            emphasize that ‘‘signage’’ is a term of art
determine ‘‘reasonableness.’’ An             program or activity that receives Federal    and to explain the standards that
accommodation is ‘‘reasonable’’ unless       financial assistance. However, the           signage must meet under the
providing the requested accommodation        second sentence of 29 CFR 34.6(b)            regulations.
would cause the recipient undue              referred only to a recipient’s obligation       Paragraphs 37.9(f)(1)–(3): These
hardship. A modification, by contrast, is    to determine what auxiliary aids or          paragraphs, which deal with
‘‘reasonable’’ unless making the             services are ‘‘necessary.’’ In order to      circumstances in which a recipient
modification would require a                 eliminate confusion, the phrase              believes that a particular action would
fundamental alteration in the nature of      ‘‘appropriate and’’ has been added to        result in a fundamental alteration to the
the service, program, or activity that the   the second sentence, so that it now          nature of a service, program, or activity,
recipient is providing. See the              refers to a recipient’s obligation to        contain the same requirements as 29
definitions of ‘‘fundamental alteration,’’   determine what auxiliary aids or             CFR 34.6(f)(1)–(3). Because the Interim
‘‘reasonable accommodation,’’ and            services are ‘‘appropriate and               Final Rule (unlike the JTPA
‘‘undue hardship’’ in Section 37.4.          necessary.’’                                 nondiscrimination regulations) includes
   The EEOC’s Enforcement Guidance on           Paragraph 37.9(c): The JTPA               a definition of ‘‘fundamental alteration’’
Reasonable Accommodation and Undue           counterpart to this paragraph is 29 CFR      that incorporates the concept of ‘‘undue
Hardship Under the Americans with            34.6(c). That paragraph was written in       financial and administrative burdens,’’
Disabilities Act may help recipients and     the passive voice. The paragraph has         that phrase is now redundant, and has
others understand these concepts,            been shifted to the active voice, to         been omitted from the paragraphs. See
particularly as applied in the               clarify that the recipient has the           the discussion in this preamble about
employment context. The Guidance is          responsibility of using                      the definition of ‘‘fundamental
available from EEOC or through EEOC’s        telecommunications devices for               alteration’’ in Section 37.4. In addition,
web site at www.eeoc.gov.                    individuals with hearing impairments,        references to JTPA have been changed to
   The procedures, set forth in                                                           refer to WIA. None of these changes is
                                             or other equally effective
paragraphs 37.8(a)(1)–(2) and (b)(1)–(2),                                                 intended to alter the meaning of these
                                             communications systems, in order to
that a recipient must follow in                                                           paragraphs.
                                             communicate by telephone with such
determining whether a requested
                                             individuals. Additionally, the acronym       Section 37.10 To what extent are
accommodation would cause undue
hardship, or a requested modification        ‘‘TTY,’’ which is occasionally used as       employment practices covered by this
would result in a fundamental                an alternative to the acronym ‘‘TDD’’ for    part?
alteration, are derived from the             such communications systems, has been          This section contains information
procedures set forth in 29 CFR               added.                                       similar to that in 29 CFR 34.7(b)–(g).
34.6(f)(1)–(3) for making similar               The phrase ‘‘telephone relay              References to JTPA have been changed
determinations with regard to                services,’’ which has been added as an       to refer to WIA. In addition, the
communications with individuals with         example of an ‘‘equally effective            reference to Equal Employment
disabilities. See the discussion in this     communications system,’’ refers to           Opportunity Commission ‘‘guidelines’’
preamble about Paragraphs 37.9(f)(1)–        services established under Title IV of       has been changed to ‘‘guidance,’’ and
(3).                                         the ADA to permit communications             the material in 29 CFR 34.7(a), which
                                             between individuals who communicate          defines the term ‘‘employment
Section 37.9 What are a recipient’s          by TDD/TTY and individuals who               practices,’’ has been moved to the
responsibilities to communicate with         communicate by the telephone alone.          definition section (Section 37.4) in this
individuals with disabilities?               These relay services involve a relay         Interim Final Rule. These changes are
   Generally, this section contains the      operator using both a standard               not intended to alter the meaning of the
same requirements as 29 CFR 34.6.            telephone and a TDD/TTY to type the          section.
Differences between the section and the      voice messages to the TDD/TTY user             Paragraph 37.10(a)(1) and (2): These
corresponding section of the JTPA            and read the TDD/TTY messages to the         paragraphs contain information similar
nondiscrimination regulations are            standard telephone user. Where such          to that in 29 CFR 34.7(b). Language has
described below.                             relay services are available, a recipient    been added to this paragraph to clarify
   Paragraph 37.9(a): This paragraph         may use these services to meet the           that the section applies to the
requires recipients to ensure that           requirements of this section. However,       employment practices of any program or
communication with certain groups of         where the recipient has extensive            activity that is part of the One-Stop
individuals with disabilities are as         telephone contact with the public, or        delivery system and is operated by a
effective as communications with             where the provision of telephone             One-Stop partner listed in Section
others. The paragraph is identical to        services is a major function of the          121(b) of WIA, to the extent that the
Paragraph 34.6(a), except that the term      recipient, the recipient should use          program or activity is being conducted
‘‘registrants’’ has been added to the list   TDDs/TTYs to ensure more immediate           as part of the One-Stop delivery system.
of such groups. The addition is              access.                                      In addition, the information has been
necessary in order to tailor the                Paragraph 37.9(d): This paragraph is      presented in outline form to improve its
regulations to the requirements of the       identical to 29 CFR 34.6(d), except that,    readability.
WIA program. This change is not              consistent with plain language                 Paragraph 37.10(d): The
intended to alter the meaning of the         principles, the term ‘‘shall’’ has been      corresponding paragraph in the JTPA
paragraph.                                   replaced by ‘‘must.’’                        nondiscrimination regulations, 29 CFR
              Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                        61701

34.7(e), stated that part 34 did not affect   opportunity. Recipients will therefore      WIA and this part, even if a State or
recipients’ obligations to comply with        be able to receive more expeditious         local law requires the recipient to
the provisions of Subparts B and C and        answers to questions about these aspects    discriminate on a prohibited ground.
Appendix A of 29 CFR part 32. As noted        of the programs by contacting CRC              Similarly, paragraph (b) of this section
in the discussion in this preamble about      directly.                                   means that no rule or regulation of a
Paragraph 37.3(b), that paragraph has                                                     private organization, club, league, or
been amended to incorporate the cited         Section 37.13 Who is responsible for
                                                                                          association that requires a recipient to
provisions by reference. This paragraph       providing interpretations of this part?
                                                                                          discriminate on a prohibited ground
has been amended accordingly.                   This section is identical to 29 CFR       excuses a recipient from complying
  Paragraph 37.10(f): This paragraph,         34.9(b), except that the reference to       with the nondiscrimination and equal
which notes that recipients should be         JTPA has been changed to refer to WIA.      opportunity provisions of WIA and this
aware of their obligations to comply          This change is not intended to alter the    part.
with the anti-discrimination provisions       meaning of this section. See the               Paragraph (c) of this section contains
of the Immigration and Nationality Act,       discussion of Section 37.12 above.          the same requirements as 29 CFR
has been added at the request of the                                                      34.11(c). It has been rewritten to
Department of Justice. See the                Section 37.14 Under what
                                              circumstances may the Secretary             improve its clarity. The paragraph bars
discussion in this preamble about                                                         recipients, while recruiting, selecting, or
Paragraph 37.3(c)(9).                         delegate responsibility under this part?
                                                                                          placing individuals in programs or
                                                This section is identical to 29 CFR       activities, from considering whether job
Section 37.11 To what extent are
                                              34.12(a) and (b), with the following        opportunities in any particular
intimidation and retaliation prohibited
                                              exceptions:                                 occupation or profession will be open to
by this part?                                   (1) The references to other regulatory    qualified individuals with disabilities,
   This section contains the same             sections within part 34 have been           or to persons of a certain race, color,
requirements as 29 CFR 34.8. Consistent       changed to reflect the numbering of this    religion, sex, national origin, age,
with plain-language guidelines, the           Interim Final Rule; and                     political affiliation or belief, or
section has been organized slightly             (2) References to JTPA have been          citizenship. For example, a recipient
differently from the JTPA section, and        changed to refer to WIA.                    operating a WIA Title I—financially
presented in outline form to improve its        Neither of these changes is intended      assisted training program must not steer
readability. Also, references to JTPA         to alter the meaning of this section.       women away from training programs for
have been changed to refer to WIA.
                                              Section 37.15 What are the Director’s       construction work because the recipient
None of these changes is intended to
                                              responsibilities to coordinate with other   believes that women will have difficulty
alter the meaning of the section.
                                              civil rights agencies?                      finding jobs in construction. This
Section 37.12 What Department of                                                          paragraph does not change the
                                                 This section generally contains the
Labor office is responsible for                                                           recipient’s general obligation under
                                              same requirements as 29 CFR 34.12(c).
administering this part?                                                                  WIA to assure that training is focused
                                              At the request of the Department of
  This section contains the same                                                          on occupations that are in demand.
                                              Justice, a reference to the anti-
requirements as 29 CFR 34.9(a). The           discrimination provision of the             Subpart B—Recordkeeping and Other
section refers to the Civil Rights Center,    Immigration and Nationality Act has         Affirmative Obligations of Recipients
or CRC, which was known as the                been added to the list of laws with
Directorate of Civil Rights, or DCR, at                                                     The requirements in this subpart are
                                              regard to which the Director must           generally similar to the requirements in
the time the JTPA nondiscrimination           coordinate with other Federal civil
regulations were promulgated. Also,                                                       Subpart B of part 34. Consistent with
                                              rights agencies. See the discussion in      plain-language guidelines, some of the
references to JTPA in the previous            this preamble about Paragraph
section have been changed in this                                                         sections within the subpart have been
                                              37.3(c)(9).                                 rearranged in a more logical order, and
section, where appropriate, to refer to          In addition, consistent with plain-
WIA. Neither of these changes is                                                          lengthy sections have been divided into
                                              language guidelines, this section has
intended to alter the meaning of this                                                     shorter sections treating narrower
                                              been organized slightly differently from
section.                                                                                  topics. These changes are not intended
                                              the JTPA section, and presented in
  Some recipients have expressed                                                          to alter the overall meaning of this
                                              outline form to improve its readability.
confusion about which Department of                                                       subpart, or the meaning of any of its
                                              Also, references to JTPA have been
Labor agency they should contact for                                                      component sections.
                                              changed to refer to WIA. Neither of the
answers to questions about the                latter changes is intended to alter the     Assurances
nondiscrimination and equal                   meaning of this section.
opportunity requirements of the JTPA                                                      Section 37.20 What is a recipient’s
and WIA programs. This confusion is           Section 37.16 What is this part’s effect    obligation to provide a written
understandable: the Department’s              on a recipient’s obligations under other    assurance?
Employment and Training                       laws, and what limitations apply?             This section contains the same
Administration (ETA) is responsible for,        Paragraphs (a) and (b) of this section    requirements as 29 CFR 34.20(a) and (b).
and has expertise about, most aspects of      are identical to the corresponding          Differences between this section and the
the JTPA and WIA programs. As a               paragraphs in 29 CFR 34.11, except that     corresponding section of the JTPA
result, recipient staff members are           references to JTPA have been changed to     nondiscrimination regulations are
accustomed to approaching ETA                 refer to WIA. This change is not            described below.
personnel for answers to JTPA- and            intended to alter the meaning of the          Paragraph 37.20(a)(1): In this
WIA-related questions. However, CRC,          paragraphs.                                 paragraph, the introductory paragraph
rather than ETA, is responsible for, and        Paragraph (a) of this section means       has been rewritten to eliminate
has expertise about, the particular           that a recipient is not excused from        redundancy, and the required assurance
aspects of the JTPA and WIA programs          complying with the nondiscrimination        has been rewritten consistent with
relating to nondiscrimination and equal       and equal opportunity provisions of         plain-language guidelines. These
61702         Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

changes are not intended to alter the         to refer to Title I of WIA. In addition,     nondiscrimination and equal
meaning of the assurance or the               paragraph (a) has been amended to            opportunity provisions of WIA and this
paragraph.                                    require that the covenant must assure        part.
  The rewritten assurance states that the     compliance with the nondiscrimination
recipient must not discriminate on the                                                     Section 37.25 What are the
                                              and equal opportunity provisions for the
basis of ‘‘citizenship/status as a lawfully                                                responsibilities of an Equal Opportunity
                                              period described in Section 37.21.
admitted immigrant authorized to work                                                      Officer?
                                              Additionally, the clause, described in
in the United States.’’ This change has       the discussion of Section 37.21, that           This section consolidates and clarifies
been made to convey more accurately           extends the obligation for the period        the responsibilities that were conferred
the definition of ‘‘discrimination on the     during which the property is used ‘‘for      on EO Officers under 29 CFR part 34.
ground of citizenship’’ contained in          another purpose involving the provision      The source of each proposed paragraph
Section 37.4.                                 of similar services or benefits’’ has been   is set forth below.
  Paragraphs 37.20(a)(2): These               added to this section as well. See the          The list of responsibilities provided in
paragraphs are identical to 29 CFR            discussion of Section 37.21 above.           this section is not intended to be
34.20(a)(2) and (b), with the following
                                              Equal Opportunity Officers                   exclusive. The EO Officer must also
exceptions:
  (1) The references to other regulatory                                                   perform any additional duties that may
                                              Section 37.23 Who must designate an          arise from his/her administration of the
sections within part 34 have been             Equal Opportunity Officer?
changed to reflect the numbering of this                                                   recipient’s nondiscrimination and equal
Interim Final Rule; and                          This section is based on the first        opportunity obligations under WIA and
  (2) References to JTPA have been            sentence of 29 CFR 34.22(a). The section     this part.
changed to refer to WIA.                      is not intended to alter the requirements       Paragraph 37.25(a): This paragraph,
  Neither of these changes is intended        of the corresponding JTPA regulation         which requires the EO Officer to serve
to alter the meaning of these paragraphs.     with regard to the entities that are         as the recipient’s liaison with CRC,
                                              required to designate Equal Opportunity      contains one of the recipients’
Section 37.21 How long will the               Officers (‘‘EO Officers’’).                  responsibilities listed in 29 CFR
recipient’s obligation under the
                                              Section 37.24 Who is eligible to serve       34.22(a). Other responsibilities listed in
assurance last, and how broad is the
                                              as an Equal Opportunity Officer?             that paragraph of the JTPA
obligation?
                                                                                           nondiscrimination regulations are
   This section contains the same                The material in this section is new. It   discussed in appropriate sections below.
general requirements as 29 CFR                is intended to clarify and emphasize the
                                              significance and level of authority that        This paragraph of the Interim Final
34.20(c). References to JTPA have been                                                     Rule signifies that the EO Officer and
changed to refer to Title I of WIA, and       recipients must give to the Equal
                                              Opportunity Officer position, and to the     his/her staff will serve as the point of
the material has been presented in                                                         contact for all recipient personnel who
outline form to improve its clarity. In       individual who holds that position.
                                              Much (though by no means all) of the         have questions about WIA’s
addition, two new clauses have been                                                        nondiscrimination and equal
added. The first clause extends the           responsibility for a recipient’s
                                              nondiscrimination and equal                  opportunity program. The EO Officer
obligation for the period during which                                                     will have both expertise in the subject
the property is used ‘‘for another            opportunity program rests on the
                                              shoulders of the EO Officer. CRC’s           and an ongoing relationship with CRC
purpose involving the provision of                                                         staff. Because of that expertise, the EO
* * * services or benefits’’ that are         experience has demonstrated that in
                                              order for such programs to function          Officer may be able to answer recipient
similar to those provided under WIA                                                        staff members’ questions based on his or
Title I. This clause has been added for       fairly and effectively, the EO Officer
                                              must be a senior-level employee whose        her own knowledge of the program.
consistency with other Federal
                                              responsibilities in the position present        In addition, CRC has found this
regulations involving Federally-assisted
                                              no conflicts of interest with his or her     requirement to be a significant
programs. See, e.g., 28 CFR 42.105(a)(1)
                                              other responsibilities. In addition, the     component of a program with clear lines
(implementing Title VI); 34 CFR
                                              recipient must establish clear lines of      of authority and accountability, as
100.4(a)(1) (applying Title VI to
                                              authority and accountability for the         discussed in Section 37.24 above.
programs assisted through the
                                              program, and must provide the EO             Having a single point of contact, at both
Department of Education).
   The second new clause extends the          Officer with appropriate levels of           the recipient and departmental levels,
obligation under the assurance to a           support. See the discussion of Sections      helps to ensure a consistent
transferee for the period until the           37.25 and 37.26 below.                       interpretation and application of the
transferee has compensated the                   As with part 34, this section does not    requirements of the nondiscrimination
Departmental grantmaking agency for           require that recipients designate a          and equal opportunity provisions of
the fair market value of the property         separate or additional EO Officer to         WIA and this part. See the discussion
transferred. This clause has been added       implement the nondiscrimination              above about Section 37.12.
in order to ensure that a transferee may      obligations imposed by WIA and this             Paragraphs 37.25(b)–(c): These
not benefit from a transfer of property       part. Nor is this section intended to        paragraphs require the EO Officer to
under the WIA Title I program without         require that the WIA EO Officer be           monitor the activities of the recipient
being subjected to the                        employed in that position full-time.         and its recipients to ensure that the
nondiscrimination and equal                   Recipients may still use their existing      recipients’ nondiscrimination and equal
opportunity obligations of WIA and this       EO Officer and staff (assuming that the      opportunity obligations are not being
part.                                         EO Officer meets the requirements of         violated, and to review their written
                                              this section), or assign additional, non-    policies to ensure that those policies are
Section 37.22 How must covenants be           WIA-related duties to a newly-               nondiscriminatory. CRC’s experience
used in connection with this part?            appointed EO Officer, so long as the EO      has demonstrated that these two
  Generally, this section contains the        Officer is able to give top priority to,     responsibilities are an integral part of
same requirements as 29 CFR 34.20(d).         and to adequately accomplish all of, his/    the most effective equal opportunity
References to JTPA have been changed          her responsibilities under the               programs of recipients under JTPA.
              Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                        61703

  These paragraphs are not intended to       on the language 29 CFR 34.22(a) which        numbering of this Interim Final Rule.
impose additional responsibilities upon      required the recipient to pay for any        None of these changes is intended to
recipients or their EO Officers. The         training that the Director required its EO   alter the meaning of this section.
paragraphs are intended merely to            Officer and staff to take. The
                                                                                          Section 37.30 What specific wording
clarify the responsibilities that were       requirement has been rewritten to
                                                                                          must the notice contain?
already imposed under the JTPA               emphasize that the recipient is
program, and to emphasize that the EO        responsible for ensuring that its EO           This section contains the same
Officer should take a leadership role in     Officer and staff maintain the level of      requirements as 29 CFR 34.23(a)(5).
the operation of the recipient’s             knowledge, skills, and abilities             Both the introductory language and the
nondiscrimination and equal                  necessary to carry out their                 notice have been rewritten consistent
opportunity programs.                        responsibilities fully and effectively,      with plain-language guidelines. Also,
  Paragraph 37.25(d): This paragraph,        and that the training needed to maintain     references to JTPA have been replaced
which requires the EO Officer to adopt,      this level of competency in a particular     by references to WIA Title I, and the
publish, and oversee the recipient’s         case, or for a particular recipient, may     time frame within which a recipient
procedures for processing                    be more extensive than the training that     must process a complaint has been
discrimination complaints, contains the      the Director requires.                       extended to 90 days, consistent with the
same requirements as 29 CFR 34.42(b).                                                     changes included in this Interim Final
  Paragraphs 37.25(e)-(g): These             Section 37.27 What are the obligations
                                                                                          Rule. See the discussion of Section
paragraphs contain the responsibilities      of small recipients relating to Equal
                                                                                          37.76 in this preamble; see also the
of EO Officers that are listed in 29 CFR     Opportunity Officers?
                                                                                          notice in Section 37.30 of the Interim
34.22(a). Other responsibilities listed in     This section contains the same             Final Rule.
that paragraph of the JTPA                   requirements as 29 CFR 34.22(c).               The rewritten notice states that the
nondiscrimination regulations belong to      Consistent with plain-language               recipient must not discriminate on the
recipients and are listed above, in          guidelines, the section has been slightly    basis of ‘‘citizenship/status as a lawfully
Paragraph 37.25(a), or below, in Section     rewritten to improve its clarity. Also,      admitted immigrant authorized to work
37.26.                                       the reference to other regulatory            in the United States.’’ This change has
Section 37.26 What are a recipient’s         sections within part 34 has been             been made to convey more accurately
obligations relating to the Equal            changed to reflect the numbering of this     the definition of ‘‘discrimination on the
Opportunity Officer?                         Interim Final Rule. These changes are        ground of citizenship’’ contained in
                                             not intended to alter the meaning of this    Section 37.4.
  This section consolidates and clarifies    section.
the obligations that were conferred on                                                      The notice contains references to a
recipients under 29 CFR part 34              Section 37.28 What are the obligations       document entitled a ‘‘Notice of Final
regarding their EO Officers. The source      of service providers relating to Equal       Action.’’ As discussed in Section 37.76
of each paragraph is set forth below.        Opportunity Officers?                        of this preamble, the ‘‘Notice of Final
  Paragraph 37.26(a): This paragraph,                                                     Action’’ is merely a formal name for a
                                                This section contains the same            document that a recipient was required
which requires recipients to publicize       requirements as 29 CFR 34.22(d). As
the EO Officer’s name and contact                                                         under part 34 to issue when it finished
                                             with Section 37.27, the section has been     processing a discrimination complaint.
information, contains the same               slightly rewritten, and the reference to
requirements, in a more detailed form,                                                    Therefore, the reference to a ‘‘Notice of
                                             another regulatory section within part       Final Action’’ is not a substantive
as the last sentence of 29 CFR 34.22(a).     34 has been changed to reflect the
  Paragraph 37.26(b): This paragraph                                                      change to the notice required by this
                                             numbering of this Interim Final Rule.        section.
clarifies that where a recipient provides    Also, JTPA-related terminology (the
internal and external notice about its       references to SDA grant recipients and       Section 37.31 Where must the notice
nondiscrimination and equal                  Substate grantees) has been replaced by      required by Sections 37.29 and 37.30 be
opportunity programs, it must also           WIA-related terminology (the reference       published?
provide information about ways to            to LWIA grant recipients). Again, these
contact its EO Officer. See 29 CFR                                                          This section contains the same
                                             changes are not intended to alter the        requirements as 29 CFR 34.23(a)(2) and
34.23(a) and (b), and the discussion of      meaning of this section.
Sections 37.29 through 37.31, 37.34, and                                                  (3). Consistent with plain-language
37.36 below.                                 Notice and Communications                    guidelines, the section has been
  Paragraph 37.26(c): This paragraph is                                                   organized slightly differently from the
                                             Section 37.29 What are a recipient’s         JTPA nondiscrimination regulations,
based on 29 CFR 34.22(b). It has been
                                             obligations to disseminate its equal         and has been presented in outline form
rewritten to emphasize that, as
                                             opportunity policy?                          to improve its readability. Also, the
explained in the discussion of Section
37.24 above, the success of a recipient’s       This section contains the same            reference to another regulatory
nondiscrimination and equal                  requirements as 29 CFR 34.23(a)(1),          paragraph within part 34 has been
opportunity program depends heavily          with the addition of related material        changed to reflect the numbering of this
upon the tangible and intangible             from 34.23(a)(7). Consistent with plain-     Interim Final Rule. None of these
support that the recipient provides to its   language guidelines, the section has         changes is intended to alter the meaning
EO Officer, and that the recipient’s top     been organized slightly differently from     of the section.
management should provide a                  29 CFR 34.23(a)(1), and has been               A reference to ‘‘electronic
significant percentage of that support.      presented in outline form to improve its     communications’’ has been added to
  Paragraph 37.26(d): This paragraph         readability. Also, WIA-related               Section 37.31(a)(2), to reflect the growth
requires a recipient to ensure that the      terminology (the reference to                in computer technology, and the related
EO Officer and his/her staff are afforded    ‘‘registrants’’) has been added where        expansion of electronic
the opportunity to receive the training      appropriate, and the reference to            communications, that have taken place
necessary and appropriate to maintain        another regulatory section within part       since the JTPA nondiscrimination
competency. This requirement is based        34 has been changed to reflect the           regulations were promulgated in 1992.
61704        Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

Section 37.32 When must the notice          and the reference to another regulatory     references to other regulatory
required by Sections 37.29 and 37.30 be     paragraph within part 34 has been           paragraphs within part 34 have been
provided?                                   changed to reflect the numbering of this    changed to reflect the numbering of this
  This section contains the same            Interim Final Rule.                         Interim Final Rule.
                                               Paragraph 37.34(b): The reference to        Paragraph (b) has been added in order
requirements as 29 CFR 34.23(a)(4).
                                            recipients ‘‘required by law or             to clarify the responsibilities of
Consistent with plain-language
                                            regulation to’’ publish or broadcast        recipients to provide services and
guidelines, the section has been
                                            information in the news media has been      information to individuals with limited
organized slightly differently from the     deleted, in order to clarify that all       English-speaking skills where the
JTPA nondiscrimination regulations.         recipients must include the required        number or proportion of such persons in
Also, the reference to another regulatory   notice in written and electronic            the community served by the recipient
paragraph within part 34 has been           publications and broadcasts, regardless     does not reach the levels described in
changed to reflect the numbering of this    of whether those publications or            paragraph (a). In such circumstances, a
Interim Final Rule. Neither of these        broadcasts are required. Also, references   recipient should make reasonable efforts
changes is intended to alter the meaning    to JTPA have been replaced by               to meet the particularized needs of any
of the paragraph.                           references to WIA Title I.                  such individuals who seek services or
Section 37.33 Who is responsible for           Paragraph 37.34(c): The language         information from that recipient.
meeting the notice requirement with         contained in 29 CFR 34.23(c) that              The differences between paragraphs
respect to service providers?               prohibited a recipient from ‘‘us[ing] or    (a) and (b) of this section may be
                                            distribut[ing] a publication of the type    explained as follows: Paragraph (a)
  This section contains the same            described in paragraph (b) of this          requires a recipient to take certain
requirements as 29 CFR 34.23(a)(6).         section’’ has been replaced by language     actions before individuals with limited
JTPA-related terminology (the               prohibiting a recipient from                English skills seek assistance from the
references to SDA grant recipients and      ‘‘communicating any information.’’ As       recipient. Under this paragraph, the
Substate grantees) has been replaced by     with other changes described above, this    recipient must assess the scope of its
WIA-related terminology (the references     change was made to reflect the growth       program or activity and the size and
to the LWIA grant recipient). Also, the     of electronic communication. Recipients     concentration of the population it
reference to another regulatory             now may reach staff, clients, or the        serves, and establish and carry out a
paragraph within part 34 has been           general public through e-mail and           plan to provide services and
changed to reflect the numbering of this    Internet Web sites, as well as through      information in the language (or
Interim Final Rule. Neither of these        the traditional publications on paper       languages) used by a significant number
changes is intended to alter the meaning    that were contemplated by the JTPA          or proportion of members of that
of the section.                             nondiscrimination regulations.              population. Depending upon the
Section 37.34 What type of notice              Additionally, references to JTPA have    combination of these factors, that plan
must a recipient include in publications,   been replaced by references to WIA          may include printing materials in the
broadcasts, and other communications?       Title I, and the reference to another       language used by the ‘‘significant
                                            regulatory paragraph within part 34 has     number or proportion of the
   This section contains the same           been changed to reflect the numbering       population,’’ hiring permanent staff
requirements as 29 CFR 34.23(b).            of this Interim Final Rule.                 members who are qualified interpreters
Differences between the section and the                                                 in that language, or various other
corresponding paragraph of the JTPA         Section 37.35 What are a recipient’s
                                            responsibilities to provide services and    options.
nondiscrimination regulations are                                                          Under paragraph (b), by contrast, a
described below.                            information in languages other than
                                                                                        recipient is not required to take action
   Paragraph 37.34(a): Consistent with      English?
                                                                                        in advance. However, when an
plain-language guidelines, this               The requirements in this section are      individual with limited English skills—
paragraph has been organized slightly       authorized by the provision in Section      who does not speak a language spoken
differently from 29 CFR 34.23(b)(1), the    188 of WIA that bars recipients from        by a ‘‘significant number or proportion
corresponding paragraph in the JTPA         discriminating on the basis of national     of the population’’—seeks services or
nondiscrimination regulations. To           origin. Cf. Lau v. Nichols, 414 U.S. 563    information from the recipient, the
reflect the growth in computer              (1974) (school system required to           recipient should then make reasonable
technology, and the related expansion of    provide English language instruction to     efforts to meet the particularized needs
electronic communications, a reference      students of Chinese ancestry who do not     of that individual. Such efforts may
to ‘‘materials that are ordinarily          speak English under Section 601 of the      include, but are not limited to, locating
distributed or communicated in written      Civil Rights Act of 1964, 42 U.S.C.         and temporarily employing a qualified
and/or oral form, electronically and/or     2000d, which bans discrimination based      interpreter who can communicate in the
on paper,’’ has been added. Also,           on national origin in programs or           appropriate language.
because materials that ‘‘describe           activities receiving Federal financial         As technology advances, various
programs funded under [Title I of WIA]      assistance).                                options for complying with the
or the requirements for participation by      Paragraph (a) of this section contains    requirements of this section, such as
recipients and participants’’ are           the same requirements as 29 CFR             computerized and/or on-line translation
frequently distributed to staff and         34.23(c). Consistent with plain-language    services, are becoming increasingly
clients, as well as to the public, a        guidelines, this paragraph has been         available to recipients, and the cost of
reference to those two groups has been      organized slightly differently from the     these options is decreasing.
added. In addition, the acronym ‘‘TTY,’’    corresponding paragraph in the JTPA
which, as previously noted, is              nondiscrimination regulations, and has      Section 37.36 What responsibilities
occasionally used as an alternative to      been presented in outline form to           does a recipient have to communicate
the acronym ‘‘TDD,’’ has been added.        improve its readability. Also, references   information during orientations?
Finally, references to JTPA have been       to JTPA have been replaced by                 This section contains the same
replaced by references to WIA Title I,      references to WIA Title I, and the          requirements as 29 CFR 34.23(d).
              Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                            61705

Consistent with plain-language               clarify that this Interim Final Rule does    Section 37.38 What information must
guidelines, the section has been             not prohibit recipients from cooperating     grant applicants and recipients provide
organized slightly differently from the      with Federal, State, and local agencies      to CRC?
corresponding paragraph in the JTPA          that, for law enforcement purposes, seek        This section consolidates 29 CFR
nondiscrimination regulations. Also,         access to the data and information           34.24(a)(3)(i) and (ii), (a)(4), (a)(5), (a)(6),
references to JTPA have been replaced        collected.                                   and (e). Requirements regarding
by references to WIA Title I. In addition,      This section does not require             information that grant applicants and
because recipients may provide               recipients to obtain, or to maintain         recipients must provide to CRC have
orientations for the general public as       records regarding, the citizenship status    been grouped together. Differences, if
well as for their new participants and/      of applicants or participants.               any, between the section and the
or employees, a reference to the general        Paragraph 37.37(c): This paragraph        corresponding paragraphs of the JTPA
public has been added.                       contains the same general requirements       nondiscrimination regulations are
Data and Information Collection and          as 29 CFR 34.24(a)(3)(iii). In response to   described below.
Maintenance                                  questions that have arisen about                Paragraph 37.38(a): This paragraph
                                             whether recipients must provide the          contains the same general requirements
Section 37.37 What are a recipient’s         required log of complaints to CRC when       as 29 CFR 34.24(a)(3)(i). References to
responsibilities to collect and maintain     requested to do so, the first sentence has   JTPA in the paragraph have been
data and other information?                  been amended to clarify that recipients      replaced by references to WIA Title I. In
   This section contains the same            must ‘‘submit [the log] to CRC upon          addition, the language requiring grant
requirements as 29 CFR 34.24(a), (a)(1),     request.’’ Because 29 CFR 34.24(a)(4)        applicants and recipients to promptly
and (a)(2), with additional, related         already required that grant applicants       notify the Director ‘‘of any
material included from 29 CFR                and recipients provide, ‘‘[a]t the           administrative enforcement actions or
34.24(a)(3)(iii), (a)(7), and (e).           discretion of the Director, . . . such       lawsuits filed against it’’ has been
Differences between this section and the     information and data’’ that the Director     changed to require such notification
corresponding paragraphs of the JTPA         considered necessary to determine            ‘‘when any’’ such actions or lawsuits
nondiscrimination regulations are            whether the entity was complying with        ‘‘are filed.’’ This change was made
described below.                             the nondiscrimination and equal              because of CRC’s judgment that grant
   Paragraph 37.37(a): This paragraph is     opportunity requirements, this addition      applicants and recipients needed
identical to 29 CFR 34.24(a), except that    was made solely to clarify the               guidance about the precise meaning of
references to JTPA have been replaced        regulations. Also, the paragraph has         the requirement that the notification be
by references to WIA. This change is not     been slightly rewritten to clarify that a    made ‘‘promptly.’’ The new language
intended to alter the meaning of the         complaint may be based upon more             emphasizes that the grant applicant or
paragraph.                                   than one prohibited ground, that every       recipient must notify the Director at the
   Paragraph 37.37(b)(1): The first          prohibited ground upon which a               time that enforcement actions or
sentence of this paragraph contains the      particular complaint is based must be        lawsuits are filed; it also makes the
same requirements as 29 CFR                  recorded in the log, and that                paragraph more readable.
34.24(a)(1); references to JTPA have         information in the log that could lead to       Also, language that specifies the
been replaced by references to WIA. The      the identification of a particular           information that the notification must
second sentence has been added to            individual as having filed a complaint       contain has been added to this
explain that the manner in which the         must be kept confidential.                   paragraph. The added language is based
records and data are kept must allow the        29 CFR 34.24(a)(3)(iii) contained two     upon part of 29 CFR 34.24(a)(3)(ii); the
Governor and CRC to monitor the              identical lists of prohibited grounds        requirements are the same as those in
recipient’s compliance by conducting         upon which complaints recorded in the        Section 37.38(b)(2)(i)–(iii).
statistical and other quantifiable data      required log might have been filed. For         Paragraph 37.38(b): This paragraph
analyses. This provision is not a new        conciseness, the second list of              requires grant applicants, as part of their
requirement; it merely clarifies and         prohibited grounds has been eliminated.      applications for assistance, and
codifies CRC’s current practices.            Finally, references to JTPA have been        recipients, as part of a compliance
Compare 29 CFR 34.24(a)(1).                  replaced by references to WIA Title I.       review or monitoring activity conducted
   Paragraph 37.37(b)(2): Generally, this    Neither of these two changes is intended     by the Director, to provide the Director
paragraph contains the same                  to alter the meaning of the paragraph.       with information about any of the
requirements as 29 CFR 34.24(a)(2).             Section 37.37(d): This paragraph is       following occurrences from the two
Consistent with plain-language               identical to 29 CFR 34.24(e). The            years before the application, compliance
guidelines, the paragraph has been           current guidelines may be found in 62        review, or monitoring activity:
slightly rewritten to improve its clarity.   FR No. 210, Thursday, October 30, 1997,         (1) The names of any other Federal
Also, references to JTPA have been           at 58782, 58790. They may also be            agencies that found the grant applicant
replaced by references to WIA, and           found at 28 CFR 42.402(e). In following      or recipient to be in noncompliance
WIA-related terminology (the references      these guidelines, recipients should use      with civil rights requirements; and
to ‘‘registrants’’ and to ‘‘eligible         the combined format for collection and          (2) Information about any
applicants/registrants’’) has been added     reporting of data.                           administrative enforcement actions or
where appropriate. None of these                Section 37.37(e): This paragraph is       lawsuits that:
changes is intended to alter the meaning     identical to 29 CFR 34.24(a)(7), except         (a) were filed during those two years;
of the paragraph.                            that JTPA-related terminology (the           and
   In addition, the last line of the         reference to SDA grant recipients and           (b) alleged discrimination on any
paragraph has been amended to permit         Substate grantees) has been replaced by      protected ground.
the data and information collected           WIA-related terminology (the reference          This paragraph contains the same
under paragraph (b) of this section to be    to the LWIA grant recipient). This           requirements as 29 CFR 34.24(a)(3)(ii).
used for such ‘‘other use authorized by      change is not intended to alter the          Consistent with plain-language
law.’’ This change has been made to          meaning of the paragraph.                    guidelines, this paragraph has been
61706        Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

organized slightly differently from the         (1) References to JTPA have been          pursuant to the requirements of this part
corresponding paragraph in the JTPA          replaced by references to WIA; and           must be used only in connection with
nondiscrimination regulations, and has          (2) In each paragraph, the phrase ‘‘in    compliance and enforcement activities
been presented in outline form to            a timely manner’’ has been inserted.         pertinent to the nondiscrimination and
improve its readability. Also, references    This phrase was added in order to            equal opportunity provisions of WIA
to other regulatory sections within part     emphasize the need for grant applicants      and this part’’ has been deleted from
34 have been changed to reflect the          and recipients to respond promptly to        paragraph (b). As with the change
numbering of this Interim Final Rule.        the Director’s requests for information.     discussed in Section 37.37(b)(2) earlier
None of these changes is intended to         As with Paragraph 37.38(c), because          in this preamble, this change was made
alter the meaning of the paragraph.          each corresponding paragraph in part 34      to clarify that this Interim Final Rule
   Paragraph 37.38(c): This paragraph is     already required grant applicants and        does not prohibit recipients from
based upon 29 CFR 34.24(a)(4). It            recipients to provide information ‘‘at the   cooperating with Federal, State, and
requires grant applicants and recipients     discretion of the Director,’’ and the        local agencies that, for law enforcement
to provide CRC with the data and             scope of Director’s discretion includes      purposes, seek access to the data and
information necessary to investigate         the discretion to determine when             information collected.
complaints and conduct compliance            information must be submitted, these           Paragraph (c) contains the same
reviews. References to JTPA have been        changes clarify the meaning of these         requirements as the last sentence of 29
replaced by references to WIA; and the       paragraphs.                                  CFR 34.24(b)(2). Consistent with plain-
phrase ‘‘in a timely manner’’ has been          Paragraph 37.38(f): This paragraph        language guidelines, it has been
inserted. This phrase was added in           provides that where designation of           rewritten to clarify those requirements.
order to emphasize the need for grant        persons by race or ethnicity is required,
applicants and recipients to respond         the guidelines of the Office of              Section 37.41 What responsibilities do
promptly to the Director’s requests for      Management and Budget must be used.          grant applicants, recipients, and the
information. Because the corresponding       The paragraph is identical to 29 CFR         Department have to maintain the
paragraph in part 34 already required        34.24(e), and appears in Section 37.37       confidentiality of the information
grant applicants and recipients to           as well. It was repeated in this section     collected?
provide information ‘‘at the discretion      to clarify that its provisions apply to        This section is identical to 29 CFR
of the Director,’’ and the scope of          information provided to and collected        34.24(d), ‘‘Confidentiality,’’ with the
Director’s discretion includes the           by CRC, as well as to data and               following exceptions:
discretion to determine when                 information collected by grant                 (a) language has been inserted to
information must be submitted, the           applicants and recipients. The current       clarify that the identity of individuals
latter change is intended merely to          guidelines may be found in 62 FR. No.        who file discrimination complaints
clarify the meaning of the paragraph.        210, Thursday, October 30, 1997, at          must be kept confidential; and
   The corresponding paragraph in the        58782, 58790. They may also be found           (b) the reference to 29 CFR 34.8 has
JTPA nondiscrimination regulations           at 28 CFR 42.402(e). In following these      been changed to reflect the numbering
specified that the requirement applied       guidelines, recipients should use the        of this Interim Final Rule.
to complaints and compliance reviews         combined format for collection and             Neither of these changes is intended
‘‘on grounds prohibited under the            reporting of data.                           to alter the meaning of this section.
nondiscrimination and equal                     Because this paragraph was
opportunity provisions of JTPA and this                                                   Section 37.42 What are a recipient’s
                                             applicable to 29 CFR 34.24(a)(4)–(6), its    responsibilities under this part to
part, other than race/ethnicity, sex, age,   inclusion in this section does not
and disability.’’ Because 29 CFR                                                          provide universal access to WIA Title I-
                                             impose additional responsibilities upon      financially assisted programs and
34.24(a)(2) and (3) already required         grant applicants or recipients.
grant applicants and recipients to record                                                 activities?
and submit the race/ethnicity, sex, age,     Section 37.39 How long must grant               This section notifies recipients of
and disability of certain categories of      applicants and recipients maintain the       their obligation to ensure universal
persons, the paragraph was written this      records required under this part?            access for all eligible populations to the
way to emphasize that grant applicants          This section contains the same            aid, benefits, services, and/or training
and recipients were required to provide      requirements as 29 CFR 34.24(c),             that the recipient offers under its WIA
CRC with records and data about              ‘‘Record retention requirements.’’           Title I—financially assisted programs
additional prohibited grounds.               Consistent with plain-language               and activities. Recipients should take
However, grant applicants and                guidelines, this section has been            specific actions to reach out to all
recipients found the paragraph               organized slightly differently from the      eligible populations. The rule provides
confusing. The paragraph therefore has       corresponding paragraph in the JTPA          a nonexclusive list of possible actions,
been rewritten to clarify that they may      nondiscrimination regulations, and has       such as targeted advertising, notification
be requested to submit data and              been presented in outline form to            of schools or community interest
information necessary to investigate         improve its readability. This change is      groups, and consultation with
complaints and/or conduct compliance         not intended to alter the meaning of the     community service groups, that might
reviews on any ground prohibited by          section.                                     be used to enhance community
the nondiscrimination and equal                                                           awareness of a recipient’s programs and
opportunity provisions of WIA and this       Section 37.40 What access to sources
                                                                                          activities.
part.                                        of information must grant applicants
   Paragraph 37.38(d)–(e): These             and recipients provide the Director?         Subpart C—Governor’s Responsibilities
paragraphs require grant applicants and         This section generally contains the       to Implement the Nondiscrimination
recipients to submit certain specified       same requirements as 29 CFR 34.24(b),        and Equal Opportunity Requirements of
information at the discretion of the         ‘‘Access to sources of information.’’        WIA
Director. These paragraphs are identical     References to JTPA have been replaced          The individual sections in this
to 29 CFR 34.24(a)(5)–(6), with the          by references to WIA. In addition, the       subpart are largely identical to their
following exceptions:                        sentence ‘‘Information obtained              corresponding sections within the same
              Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                       61707

subpart in part 34. Consistent with         Section 37.54 What are a Governor’s         provide the minimum requirements for
plain-language guidelines, they have        obligations to develop and maintain a       such monitoring reviews.
been rearranged in a more logical order,    Methods of Administration?                     (4) Paragraphs (d)(2)(iii) and (d)(2)(iv)
and one lengthy section has been                                                        are based on 29 CFR 34.33(c)(2)(ii).
                                               A ‘‘Methods of Administration’’          They have been rewritten to reflect the
divided into shorter sections treating
                                            (MOA) is a document that describes the      requirements CRC actually imposes
narrower topics. These changes are not
                                            actions an individual State will take to    with regard to the types of documents
intended to alter the overall meaning of
                                            ensure that its WIA Title I-financially     listed in the two paragraphs.
this subpart, or the meaning of any of
                                            assisted programs, activities, and             (5) 29 CFR 34.33(c)(2)(iii) required the
its component sections.
                                            recipients are complying, and will          MOA to include procedures for ensuring
Section 37.50 To whom does this             comply, with all requirements imposed       that recipients ‘‘provide accessibility to
subpart apply?                              by or under this part.                      individuals with disabilities.’’ The
                                               This section contains the same           corresponding paragraph, paragraph
   This section is identical to 29 CFR      general requirements as 29 CFR              (d)(2)(v), has been changed to clarify
34.30, ‘‘Application,’’ except that the     34.33(a)–(c). References to JTPA have       and emphasize that the MOA must
references to sections in part 34 have      been replaced by references to WIA, and     include procedures for ensuring that
been changed to reflect the numbering       the references to sections in part 34       recipients comply with all of the
of this Interim Final Rule. This change     have been changed to reflect the            requirements of Section 504 and this
is not intended to alter the meaning of     numbering of this Interim Final Rule.       part with regard to individuals with
this section.                               Also, the list of sections referred to in   disabilities, not just those requirements
Section 37.51 What are a Governor’s         paragraph 37.54(c)(1) has been              regarding accessibility.
oversight responsibilities?                 expanded to include a description of           The Department is particularly
                                            each section. In addition, consistent       interested in receiving comments
  This section contains the same            with plain-language guidelines, the         regarding this section of the Interim
requirements as 29 CFR 34.32(a).            information in Paragraphs 37.54(c)(1)       Final Rule.
References to JTPA have been replaced       and (c)(2)(vii) has been presented in
by references to WIA Title I, and the                                                   Section 37.55 When must the Governor
                                            outline form to improve its readability.    carry out his or her obligations with
references to sections in part 34 have      None of these changes is intended to
been changed to reflect the numbering                                                   regard to the Methods of
                                            alter the meaning of these paragraphs.      Administration?
of this Interim Final Rule. Neither of         The reasons for additional changes in
these changes is intended to alter the      the section are described below.               Paragraph (a) of this section is similar
meaning of this section. In addition,                                                   to 29 CFR 34.33(d), except that it
                                               (1) 29 CFR 34.33(b)(2) required that
language has been added to clarify that                                                 requires the Governor to develop,
                                            the MOA be ‘‘[u]pdated periodically as
the Governor must negotiate with a                                                      implement, and submit its first WIA
                                            required by the Director.’’ The parallel
noncomplying recipient ‘‘where                                                          MOA within 180 days of either the date
                                            provision in Section 37.54, paragraph
appropriate.’’                                                                          on which this Interim Final Rule is
                                            (b)(2), requires that the MOA be
                                                                                        effective, or the date on which the
Section 37.52 To what extent may a          ‘‘[r]eviewed and updated as required in
                                                                                        Department gives final approval to the
Governor be liable for the actions of a     Section 37.55.’’ The reasons for this
                                                                                        State’s Five-Year Plan, whichever is
recipient s/he has financially assisted     change are described below, in the
                                                                                        later. If the MOA submitted by the State
under WIA Title I?                          discussion in this preamble about
                                                                                        under JTPA satisfies the requirements
                                            Section 37.55.
   This section is identical to 29 CFR                                                  listed in Section 37.54, the Governor is
                                               (2) Paragraph 37.54(c) has been          required only to submit any necessary
34.32(b) and (c), with the following        reserved to give the Department the
exceptions:                                                                             updates and/or to certify that no
                                            opportunity to later amend the              changes are required, as described
   (1) References to JTPA have been         regulation to insert a reference to         below.
replaced by references to WIA;              guidance that the Director intends to          The remainder of this section is
   (2) The references to sections in part   issue regarding the requirements for        intended to improve the MOA’s
34 have been changed to reflect the         MOAs.                                       usefulness as a method for both States
numbering of this Interim Final Rule;          (2) Paragraph (d)(2)(i) has been added   and CRC to monitor the compliance of
and                                         to clarify that the MOA must include a      States and their recipients; to initially
                                            system that will permit the Governor to     evaluate discrimination complaints filed
   (3) To comply with the rules of          carry out his/her responsibility of
grammar, the word ‘‘which’’ in                                                          against those States and recipients; and
                                            determining whether a grant applicant       to reduce the burden on States and
paragraph (a)(2) has been changed to        seeking WIA Title I financial assistance
‘‘that.’’                                                                               recipients by eliminating unnecessary
                                            from the State, if funded, or a training    complaint investigations and/or
   None of these changes is intended to     provider, if selected and/or certified as   compliance reviews.
alter the meaning of this section.          eligible, is likely to comply with its         CRC regards the MOA as a baseline
Section 37.53 What are a Governor’s         nondiscrimination and equal                 instrument for monitoring the
oversight responsibilities regarding        opportunity obligations under WIA and       compliance of States and their
recipients’ recordkeeping?                  this part. See Section 37.51.               recipients. By reviewing a State’s MOA,
                                               (3) Paragraph (d)(2)(ii) and its         CRC is able to conduct an initial
  This section is identical to 29 CFR       subparagraphs are based on 29 CFR           evaluation of the overall systems and
34.31, except that the references to        34.33(c)(2)(i). Language has been added     procedures the State has put in place,
sections in part 34 have been changed       to clarify that the Governor must           without the necessity of an extensive
to reflect the numbering of this Interim    monitor the compliance of the State’s       compliance review. Similarly, if a
Final Rule. These changes are not           recipients by conducting statistical and    complaint filed with CRC alleges that a
intended to alter the meaning of this       other quantifiable data analyses of each    State’s or recipient’s nondiscrimination
section.                                    recipient’s records and data, and to        and/or equal opportunity procedures are
61708         Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

unlawful or unfair, the Director may          Subpart D—Compliance Procedures              not intended to change the meaning of
simply compare the complaint with the            Generally, this subpart contains the      this section.
MOA, to establish whether the                 same requirements as the corresponding       Section 37.61 Is there authority to
procedures described in the complaint         subpart in part 34. The few                  issue subpoenas?
are the same ones described in the            circumstances in which substantive
document submitted by the Governor. If                                                       This section contains the same
                                              changes have been made are discussed
CRC has already reviewed those                                                             requirements as 29 CFR 34.43(g)(4).
                                              in the descriptions below of individual
procedures and determined them to be                                                       Consistent with plain-language
                                              sections.
adequate, the agency may avoid a                                                           guidelines, the section has been
                                                 Consistent with plain-language
burdensome and unnecessary complaint                                                       organized slightly differently from the
                                              guidelines, the information in this
investigation.                                                                             corresponding paragraph in the JTPA
                                              subpart has been rearranged in a more
   In order for the MOA to provide an                                                      nondiscrimination regulations, and
                                              logical order, and lengthy sections have
effective method of monitoring                                                             presented in outline form to improve its
                                              been divided into shorter sections
compliance, however, it is important                                                       readability. Also, references to JTPA
                                              treating narrower topics. The subpart
that CRC have access to current                                                            have been replaced by references to
                                              now begins with sections describing the
information regarding a State’s                                                            WIA.
                                              Director’s general authority, and
practices. The requirements in                                                               The section was moved to the
                                              continues with sections describing
paragraphs (b) and (c) are intended to                                                     beginning of this subpart in order to
                                              Compliance Reviews, Complaint
provide that current information.                                                          clarify that the authority to issue
                                              Investigations, Determinations, and
   Paragraph (b) requires the Governor to                                                  subpoenas extends to compliance
                                              Breaches of Conciliation Agreements.
‘‘promptly update’’ the MOA ‘‘whenever                                                     reviews as well as complaint
                                              The above changes are not intended to
necessary.’’ This paragraph means that                                                     investigations. Again, this change does
                                              alter the overall meaning of this subpart,
whenever, in the ordinary course of                                                        not alter the subpoena authority in any
                                              or the meaning of any of its component
implementing the MOA, the Governor                                                         way, and is not intended to change the
                                              sections.
or the State decides that an amendment                                                     meaning of this section.
to the MOA is appropriate, the Governor       Section 37.60 How does the Director
                                                                                           Compliance Reviews
must notify CRC of the amendment. The         evaluate compliance with the
paragraph does not require the Governor       nondiscrimination and equal                  Section 37.62 What are the authority
or the State to provide CRC with an           opportunity provisions of WIA and this       and procedures for conducting pre-
entirely new MOA under these                  part?                                        approval compliance reviews?
circumstances. For example, if a State’s        In general, this section contains the        This section contains the same
MOA lists the members of a particular         same requirements as 29 CFR 34.40(a).        requirements as 29 CFR 34.40(b), ‘‘Pre-
recipient’s EO staff, the State is not        Consistent with plain-language               approval reviews,’’ with additional
required to redo its entire MOA when          guidelines, the section has been slightly    material from 29 CFR 34.47. Differences
there is turnover on the staff. Rather, the   rewritten and reorganized. Also,             between this section and the
Governor may notify CRC of the change         references to JTPA have been replaced        corresponding paragraphs and section of
simply by sending a letter listing the        by references to WIA. Neither of these       the JTPA nondiscrimination regulations
names of the departing and incoming           changes is intended to alter the meaning     are described below.
staff members, and the contact                of this section.                               Paragraph 37.62(a): This paragraph
information for the new staffers.               The sentence in 29 CFR 34.40(a) that       describes the circumstances under
   Paragraph (c) requires that every two      discusses techniques used in                 which, and the bases upon which, the
years, the Governor must review the           compliance reviews has been moved to         Director may conduct a pre-approval
MOA and the way in which the State            Section 37.63, to clarify that in CRC’s      compliance review. The paragraph is
has implemented the document, and to          actual practice, the techniques              identical to 29 CFR 34.40(b)(1), with the
make any necessary changes. As in             discussed are used only in post-             following exceptions:
paragraph (b), the Governor is required       approval compliance reviews.                   (1) References to JTPA have been
to notify CRC about those changes               A sentence has been added to clarify       replaced by references to WIA; and
alone; he or she must submit an entirely      that pre- or post-approval compliance          (2) The references to sections in part
new MOA to CRC only if he or she              reviews may focus on one or more             34 have been changed to reflect the
decides to replace the previous MOA           specific programs or activities, or one or   numbering of this Interim Final Rule.
completely. If, based on the review, he       more issues within a program or                Neither of these changes is intended
or she determines that no changes are         activity. The Director has the discretion    to alter the meaning of this paragraph.
necessary, he or she is required merely       to determine the scope of a particular         Paragraph 37.62(b): This paragraph
to certify to CRC in writing that the         compliance review. This addition is          outlines the Director’s responsibilities
previous MOA remains in effect. If this       intended only to provide notice to grant     when s/he determines that a grant
certification is not required, then each      applicants and recipients that               applicant might not comply with the
time that the Director receives a             compliance reviews may be narrow as          nondiscrimination and equal
complaint regarding a particular State,       well as broad. It does not alter the         opportunity provisions of WIA and this
CRC will be forced to contact that State      Director’s authority in any way, but is      part. Generally, this paragraph contains
to ask whether its MOA has been               intended only to clarify the meaning of      the same requirements as 29 CFR
changed. In CRC’s view, such repeated         this section.                                34.40(b)(2) and (4); it also incorporates
inquiries would be more burdensome              Because this section now serves as an      material from 29 CFR 34.47, which
for States than requiring certification       introduction to Subpart D, a sentence        requires the Director to notify the
every two years.                              has also been added that notes that the      Assistant Attorney General, as well as
   The Department is particularly             Director may also investigate and            the grantmaking agency, where a
interested in receiving comments              resolve discrimination complaints.           complaint investigation or compliance
regarding this section of the Interim         Again, this sentence does not alter the      review results in a finding of
Final Rule.                                   Director’s authority in any way, and is      noncompliance. The latter requirement
              Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                         61709

is also contained within the Department      it incorporates related material from 29         (1) References to JTPA have been
of Justice’s Title VI coordination           CFR 34.40(c)(4).                               replaced by references to WIA; and
regulations at 28 CFR 42.407(d).                References to ‘‘data’’ that a recipient       (2) The references to sections in part
   Consistent with plain-language            must submit before a post-approval
                                                                                            34 have been changed to reflect the
guidelines, this paragraph has been          compliance review have been changed
                                             to ‘‘information, records, and/or data.’’      numbering of this Interim Final Rule.
organized slightly differently from the
corresponding paragraphs in the JTPA         Like other changes described earlier in          Neither of these changes is intended
nondiscrimination regulations, and has       this Preamble, this change was made to         to alter the meaning of this section.
been presented in outline form to            reflect the growth in computer                   The corresponding paragraphs in the
improve its readability. Because the         technology, and the related expansion of       JTPA nondiscrimination regulations
JTPA nondiscrimination regulations           electronic communications; the change          were located in Subpart C (‘‘Governor’s
listed these same responsibilities, their    was intended to incorporate a variety of       Responsibilities’’). The section was
inclusion in this paragraph does not         terms that might be used to refer to           moved to Subpart D and included with
alter the Director’s authority in any way,   material stored in written, electronic, or
                                                                                            procedures about compliance reviews
and is not intended to change the            other forms. Again, this change does not
                                                                                            because it deals with the Director’s
meaning of this paragraph.                   impose any additional obligations upon
   In addition, references to JTPA have      recipients; it was made merely to clarify      authority to review documents prepared
been replaced by references to WIA, and      the paragraph.                                 by and actions taken by a Governor
the references to sections in part 34           In addition, the references to sections     under this part. This change was not
have been changed to reflect the             in part 34 have been changed to reflect        intended to alter the meaning of the
numbering of this Interim Final Rule.        the numbering of this Interim Final            section.
Neither of these changes is intended to      Rule. These changes are not intended to          Paragraph (c) of Section 34.34
alter the meaning of this paragraph.         alter the meaning of the paragraph.            provided that ‘‘[t]he procedures
   Paragraph 37.62(c): This paragraph           Paragraph 37.63(c): This paragraph          contained in [S]ubpart D’’ would apply
describes the Department’s                   contains material from 29 CFR 34.40(a)         to the Director’s monitoring activities.
responsibilities where a grant applicant     about techniques used in compliance            Because the section has been moved to
agrees to take remedial or corrective        reviews. As discussed in Section 37.60         Subpart D, this paragraph has become
actions in order to receive WIA Title I      of this preamble, the sentence was             redundant, and has been deleted.
financial assistance. The paragraph is       moved to this section to clarify that in
identical to 29 CFR 34.40(b)(3), with the    CRC’s actual practice, the techniques          Section 37.66 What happens if a
following exceptions:                        discussed are used only in post-               recipient fails to submit requested data,
   (1) References to JTPA have been          approval compliance reviews. The               records, and/or information, or fails to
replaced by references to WIA; and           reference to off-site analyses has been        provide CRC with the required access?
   (2) The references to sections in part    deleted because it refers to internal
34 have been changed to reflect the          agency procedure that is more                     This section contains the same
numbering of this Interim Final Rule.        appropriately treated in internal agency       general requirements as 29 CFR
   Neither of these changes is intended      guidelines.                                    34.41(a). The reference to the
to alter the meaning of this paragraph.                                                     ‘‘Directorate’’ (the Directorate of Civil
                                             Section 37.64 What procedures must
Section 37.63 What are the authority                                                        Rights, the previous title of the Civil
                                             the Director follow when CRC has
and procedures for conducting post-          completed a post-approval compliance           Rights Center) has been updated to
approval compliance reviews?                 review?                                        ‘‘CRC.’’ Also, to help readers find the
                                                                                            section of the Interim Final Rule that
   Generally, this section contains the         Generally, this section contains the        requires a recipient to provide CRC with
same requirements as 29 CFR 34.40(c),        same requirements as 29 CFR
‘‘Post-approval reviews,’’ with one                                                         access to sources of information, a
                                             34.40(c)(3). However, the requirement
paragraph from 34.40(a). Differences                                                        reference to that section has been added.
                                             that the Director inform the recipient of
between this section and the                                                                Neither of these changes is intended to
                                             the results of the review within 210
corresponding paragraphs of the JTPA                                                        alter the meaning of this section.
                                             days of the issuance of the Notification
nondiscrimination regulations are            Letter has been deleted. This change              In addition, language has been added
described below.                             was made because CRC has decided to            that specifies that recipients must
   Paragraph 37.63(a): This paragraph        establish such internal agency time            submit or provide CRC with access to
outlines the circumstances under             frames in internal agency guidelines           data, records, and/or information ‘‘in a
which, and the bases upon which, the         issued by the Director, rather than            timely manner.’’ This addition was
Director may conduct a post-approval         through rulemaking.                            made to clarify that the Director may
compliance review. The paragraph                In addition, consistent with plain-         issue a Notice to Show Cause based
contains the same requirements as 29         language guidelines, the section has           upon a recipient’s delay in supplying
CFR 34.40(c)(1). Consistent with plain-      been slightly rewritten to clarify it. Also,   the records, data, information, and/or
language guidelines, the list of examples    the references to sections in part 34          access sought by CRC.
of possible bases for such reviews has       have been changed to reflect the
been slightly rewritten to clarify the       numbering of this Interim Final Rule.          Section 37.67 What information must
examples. In addition, references to         These changes are not intended to alter        a Notice to Show Cause contain?
JTPA have been replaced by references        the meaning of the paragraph.
to WIA. These changes are not intended                                                        This section is identical to 29 CFR
to alter the meaning of the paragraph.       Section 37.65 What is the Director’s           34.41(b), and includes the first sentence
   Paragraph 37.63(b): This paragraph        authority to monitor the activities of a       of 34.41(c). References to JTPA have
outlines the procedures for initiating a     Governor?                                      been replaced by references to WIA.
post-approval compliance review. The           This section is identical to 29 CFR          These changes are not intended to
paragraph contains the same                  34.34(a) and (b), with the following           change the meaning of this section.
information as 29 CFR 34.40(c)(2), and       exceptions:
61710        Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

Section 37.68 How may a recipient           Section 37.74 Are there any forms that         is intended only as a baseline; recipients
show cause why enforcement                  a complainant may use to file a                may include additional elements in
proceedings should not be instituted?       complaint?                                     their complaint processing procedures,
  This section is identical to the             This section contains the same              as long as the procedures allow for
remainder of 29 CFR 34.41(c), with the      requirements as the second sentence of         resolution of the complaint within 90
following exceptions:                                                                      days.
                                            Section 34.43(d)(4)(iii). Consistent with
                                                                                              (3) The section requires recipients to
  (1) The references to sections in part    plain-language guidelines, the section
                                                                                           adopt procedures for alternative dispute
34 have been changed to reflect the         has been slightly rewritten to improve         resolution (ADR). See Paragraph
numbering of this Interim Final Rule;       its clarity. In addition, for the              37.76(c). This requirement was added in
and                                         convenience of the reader, the section         response to input from complainants
  (2) References to the ‘‘Directorate’’     now explains where complainants or             and recipients who wanted a more
have been updated to ‘‘CRC.’’               their representatives may obtain the           flexible, less adversarial means of
  Neither of these changes is intended      forms.                                         resolving discrimination complaints.
to alter the meaning of this section.
                                            Section 37.75 Is there a right of              (CRC itself is adopting procedures that
Section 37.69 What happens if a             representation in the complaint                will allow complainants and
recipient fails to show cause?              process?                                       respondents to mediate complaints filed
  This section is identical to 29 CFR                                                      with the Director. See the discussion of
                                              This section contains the same               Section 37.89, later in this preamble.)
34.41(d), except that the reference to a    requirements as 29 CFR 34.43(e).
section in part 34 has been changed to                                                     The section also includes procedures
                                            Consistent with plain-language                 through which any party to an
reflect the numbering of this Interim       guidelines, the section has been slightly      agreement reached under ADR may
Final Rule. This change is not intended     rewritten to improve its clarity. This         complain to the Director if the
to alter the meaning of this section.       change is not intended to alter the            agreement is breached. See Paragraph
Complaint Processing Procedures             meaning of this section.                       37.76(c)(2). CRC believes that
                                            Section 37.76 What are the required            complainants and recipients will be
Section 37.70 Who may file a
                                            elements of a recipient’s discrimination       more willing to resolve complaints
complaint concerning discrimination
                                            complaint processing procedures?               through ADR if the parties know that
connected with WIA Title I?
                                                                                           they have a means of enforcing the
  This section contains the same               Much of this section is new. It             agreements reached through that
requirements as 29 CFR 34.43(a).            includes most of the general information       procedure. However, in the event that
Consistent with plain-language              contained in 29 CFR 34.42(a), which            the ADR process does not resolve a
guidelines, the section has been slightly   requires a recipient to adopt and              complaint, the section provides that a
rewritten to improve its readability.       publish procedures for processing              complainant may file a complaint with
This change is not intended to alter the    discrimination complaints, and 34.42(c),       the Director within 30 days of the date
meaning of this section.                    which requires the recipient to provide        on which the ADR process terminates.
                                            the complainant with written notice of         CRC is particularly interested in
Section 37.71 Where may a complaint         the resolution of the complaint. (As           receiving comments about this new
be filed?                                   discussed earlier in this preamble, the        requirement.
  This section contains the same            material in 29 CFR 34.42(b), which                (4) The section has given a formal
requirements as 29 CFR 34.43(b).            charges a recipient’s Equal Opportunity        name, ‘‘Notice of Final Action,’’ to the
Consistent with plain-language              Officer with the responsibility for            written notification that a recipient
guidelines, the section has been slightly   adopting and publishing these                  must give a complainant when the
rewritten to improve its clarity. This      procedures, has been moved to Section          recipient has finished processing a
change is not intended to alter the         37.25(d), ‘‘What are the responsibilities      complaint. Because 29 CFR 34.42(c)
meaning of this section.                    of an Equal Opportunity Officer?’’ In          already required such a written
                                            addition, the information in the third         notification, this change is not a
Section 37.72 When must a complaint         sentence of Section 34.42(a) has been          substantive change in the section.
be filed?                                   moved to the next section.) However,
  This section contains the same            this section includes the following            Section 37.77 Who is responsible for
requirements as 29 CFR 34.43(c).            changes.                                       developing and publishing complaint
Consistent with plain-language                 (1) The period for recipients to            processing procedures for service
guidelines, the section has been slightly   process discrimination complaints has          providers?
rewritten to improve its clarity. This      been extended, from 60 to 90 days. See            Generally, this section contains the
change is not intended to alter the         Paragraphs 37.76(a) and 37.76(b)(5).           same requirements as the third sentence
meaning of this section.                    This change has been made in response          of 29 CFR 34.42(a). Consistent with
                                            to concerns raised by recipients that 60       plain-language guidelines, the section
Section 37.73 What information must         days was not enough time in which to           has been slightly rewritten to improve
a complaint contain?                        give a complaint appropriate attention.        its clarity. Also, JTPA-related
   This section contains the same              (2) A list of specific elements that        terminology (the references to SDA
requirements as 29 CFR 34.43(d), except     must be included in each recipient’s           grant recipients and Substate grantees)
that, for the ease of the reader, the       complaint processing procedures has            has been replaced by WIA-related
information in the second sentence of       been added. See Paragraphs 37.76(b)            terminology (the reference to the LWIA
Section 34.43(d)(4)(iii) has been placed    and (c). This change has been made             grant recipient). Neither of these
in the next section. Consistent with        because a number of recipients have            changes is intended to alter the meaning
plain-language guidelines, the section      requested more extensive guidance              of this section.
has been slightly rewritten to improve      about the steps that must be taken in             The final sentence has been added to
its clarity. This change is not intended    order to process a complaint fairly and        the section to clarify that service
to alter the meaning of this section.       effectively. As this section notes, the list   providers are obliged to follow the
              Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                       61711

procedures adopted and published on          Director has the right to take appropriate   been slightly rewritten to improve its
their behalf.                                action against the recipient.                clarity. Also, the reference to the
                                                                                          ‘‘Directorate’’ has been updated to
Section 37.78 Does a recipient have          Section 37.81 Are there any
                                                                                          ‘‘CRC.’’ Neither of these changes is
any special obligations in cases in          circumstances under which the Director
                                                                                          intended to alter the meaning of this
which the recipient determines that it       may extend the time limit for filing a
                                                                                          section.
has no jurisdiction over a complaint?        complaint with him or her?
                                               This section contains the same             Section 37.85 Are there any other
  This section contains the same                                                          circumstances in which the Director will
requirements as 29 CFR 34.43(f)(5).          requirements as 29 CFR 34.43(f)(4).
                                             Consistent with plain-language               send a complaint to another authority?
Consistent with plain-language
guidelines, the section has been slightly    guidelines, the section has been slightly       Generally, this section contains the
rewritten and presented in outline form      rewritten and presented in outline form      same requirements as 29 CFR 34.43(g)(7)
to improve its readability. Also,            to improve its readability. Also, the        and (8), with additional material
references to JTPA have been replaced        reference to a section in part 34 has        necessitated by the requirements of the
by references to WIA. Neither of these       been changed to reflect the numbering        WIA program. Differences between this
changes is intended to alter the meaning     of this Interim Final Rule, and a final      section and the corresponding
of this section.                             sentence has been added to clarify and       paragraphs of the JTPA
                                             emphasize that the burden of showing         nondiscrimination regulations are set
Section 37.79 If, before the 90-day          good cause for extending the time limit      forth below.
period has expired, a recipient issues a     rests with the complainant.                     Paragraph 37.85(a): This paragraph
Notice of Final Action with which the                                                     generally contains the same
complainant is dissatisfied, how long        Section 37.82 Does the Director accept       requirements as 29 CFR 34.43(g)(7),
does the complainant have to file a          every complaint for resolution?              except that the requirement that the
complaint with the Director?                    This section consolidates information     Director advise the complainant and the
                                             contained in 29 CFR 34.43(g)(1), (g)(5),     respondent about the referral has been
  This section contains the same                                                          moved to paragraph (d). In addition,
                                             and (g)(6). Consistent with plain-
general information as 29 CFR                                                             consistent with plain-language
                                             language guidelines, the material has
34.43(f)(1). Consistent with plain-                                                       guidelines, the material has been
                                             been slightly rewritten and presented in
language guidelines, the section has                                                      slightly rewritten. Neither of these
                                             outline form to improve its readability.
been slightly rewritten to improve its                                                    changes is intended to alter the meaning
                                             Also, the information in Paragraph
clarity. Also, references to the 60-day                                                   of this paragraph.
                                             37.82(c), explaining that CRC need not
period allowed for processing                                                                Paragraph 37.85(b): This paragraph
                                             investigate a complaint about a matter
complaints under the JTPA                                                                 generally contains the same
                                             that it has already decided, has been
nondiscrimination regulations have                                                        requirements as 29 CFR 34.43(g)(8),
                                             added. A ‘‘complaint about a matter that
been replaced by references to the                                                        except that the requirement that the
                                             it has already decided’’ is a complaint
newly-extended 90-day period allowed                                                      Director advise the complainant and the
                                             about the same set of facts that CRC has
under WIA, and the new term ‘‘Notice                                                      respondent about the referral has been
                                             already considered and decided in a
of Final Action’’ has been used to refer                                                  moved to paragraph (d). In addition,
                                             previous case. This addition does not
to the written notification that a                                                        consistent with plain-language
                                             change CRC’s authority in any way; it is
recipient must provide a complainant                                                      guidelines, the material has been
                                             intended only to notify complainants
when the recipient has completed its                                                      slightly rewritten and presented in
                                             and respondents about CRC’s practices.
processing of a complaint.                                                                outline form to improve its readability.
                                             None of these changes is intended to
Section 37.80 What happens if a              alter the meaning of this section.           Also, the reference to JTPA has been
recipient fails to issue a Notice of Final                                                replaced by a reference to WIA. None of
                                             Section 37.83 What happens if a              these changes is intended to alter the
Action within 90 days of the date on
                                             complaint does not contain enough            meaning of this paragraph.
which a complaint was filed?
                                             information?                                    Paragraph 37.85(c): The material in
  This section contains the same               Generally, this section contains the       this paragraph is new. Under the One-
general information as 29 CFR                same requirements as 29 CFR                  Stop system established by WIA, CRC
34.43(f)(3). Consistent with plain-          34.43(g)(3). Consistent with plain-          may have dual jurisdiction, with
language guidelines, the section has         language guidelines, the material has        Federal grantmaking agencies other than
been slightly rewritten to improve its       been slightly rewritten and presented in     the Department of Labor, over
clarity. Also, references to the 60-day      outline form to improve its readability.     complaints that allege discrimination by
period allowed for processing                Also, the provision requiring that a         One-Stop partners financially assisted
complaints under the JTPA                    complainant must submit the requested        by those other grantmaking agencies.
nondiscrimination regulations have           additional information within 15 days        This paragraph sets forth the general
been replaced by references to the           has been eliminated. This change has         procedures that will be used to
newly-extended 90-day period allowed         been made in order to provide the            determine whether CRC will retain such
under WIA, and the new term ‘‘Notice         Director with the flexibility to require a   complaints for processing or refer them
of Final Action’’ has been used to refer     longer or shorter response period, if        to the other grantmaking agencies for
to the written notification that a           appropriate in a particular case.            appropriate action in accordance with
recipient must provide a complainant                                                      the Federal grantmaking agency’s
when the recipient has completed its         Section 37.84 What happens if CRC            applicable regulations. CRC will enter
processing of a complaint.                   does not have jurisdiction over a            into Memoranda of Understanding
  This section deals only with a             complaint?                                   (MOUs) with the appropriate Federal
complainant’s rights if a recipient fails      This section contains the same             grantmaking agencies to ensure that
to issue a Notice of Final Action within     general information as 29 CFR                complaints will be referred in
the required period. Recipients should       34.43(g)(5). Consistent with plain-          accordance with these guidelines. These
be aware that in such circumstances, the     language guidelines, the section has         MOUs, which will contain more specific
61712         Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

referral procedures, will be published in     jurisdiction, and the reasons why those      Section 37.92 What notice must the
the Federal Register. In addition, the        issues have been rejected. This              Director issue if he or she finds no
Department encourages local Workforce         requirement has been added in order to       reasonable cause to believe that a
Investment Boards, in developing the          provide complainants and respondents         violation has taken place?
MOUs required by Section 121(c) of            with reasonable notice of the Director’s
                                                                                              This section contains information
WIA, to include in those MOUs                 determinations about the entire
                                                                                           from 29 CFR 34.43(g)(9)(ii). Consistent
provisions regarding the appropriate          complaint.
                                                                                           with plain-language guidelines, the
referral of any such complaints filed at
                                              Section 37.88 Who may contact CRC            material has been slightly rewritten to
the local level.
  Paragraph 37.85(d): The material in         for information about a complaint?           improve its clarity. These changes are
this paragraph comes from both 29 CFR           Generally, this section contains the       not intended to alter the meaning of the
34.43(g)(7) and (8), as noted above. It       same requirements as 29 CFR                  section.
has been placed in a separate paragraph       34.43(g)(2). Consistent with plain-          Section 37.93 What happens if the
to improve the readability of this            language guidelines, the material has        Director finds that a violation has taken
section.                                      been slightly rewritten to improve its       place, and the recipient fails or refuses
                                              clarity. Also, a second sentence has         to take the corrective action listed in the
Section 37.86 What must the Director          been added in order to clarify that the
do if he or she determines that a                                                          Initial Determination?
                                              Director has the authority to determine
complaint will not be accepted?               what information about a complaint              This section contains information
  Generally, this section contains the        should be released.                          from 29 CFR 34.46(a)(1). Consistent
same requirements as 29 CFR                                                                with plain-language guidelines, the
                                              Section 37.89 May the Director offer         material has been slightly rewritten to
34.43(g)(6). Consistent with plain-
                                              the parties to a complaint the option of     improve its clarity. These changes are
language guidelines, the material has
                                              mediation?                                   not intended to alter the meaning of the
been slightly rewritten to improve its
clarity. In addition, the wording               This section is new. Like the              section.
referring to circumstances in which a         provisions allowing recipients to            Section 37.94 What corrective or
complaint ‘‘will not be investigated’’ has    include provisions for ADR in their          remedial actions may be imposed
been changed to ‘‘will not be accepted.’’     complaint processing procedures, this        where, after a compliance review or
This change has been made to reflect the      option was added in response to
                                                                                           complaint investigation, the Director
addition of the mediation option to           concerns of complainants and recipients
                                                                                           finds a violation of the
CRC’s complaint processing procedures:        who wanted a more flexible, less
                                                                                           nondiscrimination and equal
where a complainant and respondent            adversarial means of resolving
                                                                                           opportunity provisions of WIA or this
agree to mediate the complaint, CRC           discrimination complaints. CRC is
                                                                                           part?
will conduct an investigation only if the     particularly interested in receiving
mediation fails, or if one of the parties     comments concerning this section.              This section contains the same
breaches the agreement reached through                                                     requirements as 29 CFR 34.44. The
                                              Determinations
the mediation. See Section 37.89.                                                          material has been slightly rewritten to
                                              Section 37.90 If a complaint is              improve its clarity. Also, the references
Section 37.87 What must the Director          investigated, what must the Director do      to other regulatory sections within part
do if he or she determines that a             when the investigation is completed?         34 have been changed to reflect the
complaint will be accepted?                                                                numbering of this Interim Final Rule,
                                                 This section contains information
   Generally, this section contains the       from 29 CFR 34.43(g)(9), (9)(i), and         and references to JTPA have been
same requirements as 29 CFR                   (9)(ii). Consistent with plain-language      changed to refer to WIA. None of these
34.43(g)(1)(i) and (ii). Consistent with      guidelines, the material has been            changes is intended to alter the meaning
plain-language guidelines, the material       rewritten and reorganized slightly, and      of the section.
has been slightly rewritten to improve        presented in outline form to improve its     Section 37.95 What procedures apply
its clarity. In addition, the following       readability. Also, the Director is now       if the Director finds that a recipient has
changes have been made:                       required to notify the grantmaking           violated the nondiscrimination and
   (1) The reference to the ‘‘Directorate’’   agency about his or her determination        equal opportunity provisions of WIA or
has been changed to the ‘‘Director,’’         whether the respondent has violated the      this part?
because it is he or she who has the           nondiscrimination and equal
authority to determine whether a              opportunity provisions. This                   This section contains the same
complaint will be accepted.                   requirement was added for the reasons        requirements as 29 CFR 34.45 (a) and
   (2) The Director is now required to        listed in the discussion of Section 37.87.   (b). Consistent with plain-language
notify the grantmaking agency, as well                                                     guidelines, the material has been
as the complainant and the respondent,        Section 37.91 What notice must the           rewritten and reorganized slightly to
when a complaint is accepted. This            Director issue if he or she finds            improve its clarity. Some of the material
requirement has been added because            reasonable cause to believe that a           has been presented in outline form.
CRC’s experience has shown that when          violation has taken place?                   Also, the references to other regulatory
grantmaking agencies are aware of                This section contains information         sections within part 34 have been
discrimination complaints, those              from 29 CFR 34.43(g)(9)(i). Consistent       changed to reflect the numbering of this
complaints are more likely to be              with plain-language guidelines, the          Interim Final Rule, and references to
resolved successfully, and recipients are     material has been rewritten and              JTPA have been changed to refer to
more likely to comply with their              reorganized slightly to improve its          WIA. None of these changes is intended
obligations regarding nondiscrimination       clarity. Also, references to sections in     to alter the meaning of the section.
and equal opportunity.                        part 34 have been changed to reflect the       The section makes reference to a
   (3) The Director is also required to       numbering of this Interim Final Rule.        written Conciliation Agreement. CRC,
provide notice about any issues over          None of these changes is intended to         not the recipient or the Governor,
which he or she has not accepted              alter the meaning of this section.           prepares the initial draft of this
              Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                        61713

document. See also the discussion in         language has been added to clarify that      Section 37.105 Whom must the
this preamble about Section 37.97.           the Department may withhold a grant          Director notify if enforcement action
                                             applicant’s or recipient’s WIA Title I-      under a Notification of Breach of
Section 37.96 What are the required
                                             funded Federal financial assistance in       Conciliation Agreement is commenced?
elements of a written assurance?
                                             whole or in part. This change does not
   This section contains the same            expand the Department’s authority; it           This section contains the same
requirements as 29 CFR 34.45(c)(1).                                                       requirements as 29 CFR 34.48(e).
                                             has been added solely to provide
Consistent with plain-language                                                            Consistent with plain-language
                                             recipients with notice of the
guidelines, the material has been                                                         guidelines, the material has been
                                             Department’s actual practice.
slightly rewritten to improve its clarity.                                                slightly rewritten and presented in
These changes are not intended to alter      Section 37.101 Whom must the                 outline form to improve its readability.
the meaning of the section.                  Director notify of a finding of              These changes are not intended to alter
                                             noncompliance?                               the meaning of the section.
Section 37.97 What are the required
elements of a Conciliation Agreement?           Generally, this section contains the      Subpart E—Federal Procedures For
  Generally, this section contains the       same requirements as 29 CFR 34.47.           Effecting Compliance
same requirements as 29 CFR                  Consistent with plain-language               Section 37.110 What enforcement
34.45(c)(2). Consistent with plain-          guidelines, the material has been            procedures does the Department follow
language guidelines, the material has        slightly rewritten to improve its clarity.   to effect compliance with the
been slightly rewritten to improve its       In addition, language has been added to      nondiscrimination and equal
clarity. These changes are not intended      clarify that the Director will notify the    opportunity provisions of WIA and this
to alter the meaning of the section.         grant applicant or recipient, as well as     part?
  As noted above in the discussion of        the grantmaking agency and the
Section 37.95, CRC, not the recipient or     Assistant Attorney General. This change         This section contains the same
the Governor, prepares the initial draft     has been made to reflect the Director’s      requirements as 29 CFR 34.50.
of the Conciliation Agreement.               actual practice and the requirements of      Consistent with plain-language
                                             the preceding sections.                      guidelines, the material has been
Section 37.98 When will the Director                                                      slightly rewritten to improve its clarity.
conclude that compliance cannot be           Breaches of Conciliation Agreements          Also, references to JTPA have been
secured by voluntary means?                                                               changed to refer to WIA, and references
   This section contains the same            Section 37.102 What happens if a
                                                                                          to other regulatory sections within part
requirements as 29 CFR 34.46(a).             grant applicant or recipient breaches a      34 have been changed to reflect the
Consistent with plain-language               Conciliation Agreement?                      numbering of this Interim Final Rule.
guidelines, the material has been              This section contains the same             None of these changes is intended to
slightly rewritten to improve its clarity.   requirements as 29 CFR 34.48(b). The         alter the meaning of the section.
Also, the references to other regulatory
                                             phrase ‘‘through the Governor or by          Section 37.111 What hearing
sections within part 34 have been
                                             other means’’ has been eliminated as         procedures does the Department follow?
changed to reflect the numbering of this
                                             redundant. This change is not intended
Interim Final Rule. These changes are                                                        This section contains the same
                                             to alter the meaning of this section.
not intended to alter the meaning of the                                                  requirements as 29 CFR 34.51.
section.                                     Section 37.103 Whom must the                 Consistent with plain-language
Section 37.99 If the Director concludes      Director notify about a breach of a          guidelines, the material has been
that compliance cannot be secured by         Conciliation Agreement?                      slightly rewritten to improve its clarity.
voluntary means, what actions must he                                                     Also, references to another regulatory
                                                This section contains the same
or she take?                                                                              section within part 34 have been
                                             requirements as 29 CFR 34.48(c).
                                                                                          changed to reflect the numbering of this
   This section includes information         Consistent with plain-language               Interim Final Rule, and the current
from 29 CFR 34.46(b) (1), (2), and (3).      guidelines, the material has been            address of the Office of Administrative
The subparagraphs from Paragraph             slightly rewritten to improve its clarity.   Law Judges has been provided for the
34.46(b)(1) that describe the required       In addition, the Director is now required    convenience of the reader. None of these
elements of a Final Determination have       to notify the grantmaking agency, for the    changes is intended to alter the meaning
been moved to the next section. Also,        reasons listed in the discussion of          of the section.
the material in this section has been        Section 37.87.
slightly rewritten to improve its clarity.                                                Section 37.112 What procedures for
Neither of these changes is intended to      Section 37.104 What information must         initial and final decisions does the
alter the meaning of this section.           a Notification of Breach of Conciliation     Department follow?
                                             Agreement contain?
Section 37.100 What information must                                                         This section contains the same
a Final Determination contain?                  This section contains the same            requirements as 29 CFR 34.52(a) and (b).
  This section contains the same             requirements as 29 CFR 34.48(d).             Consistent with plain-language
requirements as 29 CFR 34.46(a) and (b).     Consistent with plain-language               guidelines, the material has been
Consistent with plain-language               guidelines, the material has been            slightly rewritten to improve its clarity.
guidelines, the material has been            slightly rewritten to improve its clarity.   Also, references to JTPA have been
rewritten and reorganized slightly to        In addition, the references to other         changed to refer to WIA, and references
improve its clarity, and the references to   regulatory sections within part 34 have      to other regulatory sections within part
other regulatory sections within part 34     been changed to reflect the numbering        34 have been changed to reflect the
have been changed to reflect the             of this Interim Final Rule. None of these    numbering of this Interim Final Rule.
numbering of this Interim Final Rule. In     changes is intended to alter the meaning     None of these changes is intended to
addition, in Paragraph 37.100(f)(1),         of the section.                              alter the meaning of the section.
61714         Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

Section 37.113 What procedure does           is not a ‘‘significant regulatory action’’    parties do not have to comply with the
the Department follow to suspend,            under Executive Order 12866 because           information collection requirements in
terminate, withhold, deny or                 this action will not: (1) Have an annual      this document until DOL publishes in
discontinue WIA Title I financial            effect on the economy of $100 million         the Federal Register the control
assistance?                                  or more, or adversely affect in a material    numbers assigned by OMB. Publication
   Generally, this section contains the      way the economy, a sector of the              of the control numbers notifies the
same requirements as 29 CFR 34.53(a).        economy, productivity, competition,           public that OMB has approved this
Consistent with plain-language               jobs, the environment, public health or       information collection requirement
guidelines, the material has been            safety, or State, local, or tribal            under the Paperwork Reduction Act of
slightly re-punctuated to improve its        governments or communities; (2) Create        1995.
clarity. Also, references to JTPA have       a serious inconsistency, or otherwise
                                             interfere, with an action taken or            Request for Comments
been changed to refer to WIA, and
                                             planned by another agency; (3)                  This publication implements the
references to other regulatory sections
                                             Materially alter the budgetary impact of      nondiscrimination and equal
within part 34 have been changed to
                                             entitlements, grants, user fees, or loan      opportunity provisions of Section 188 of
reflect the numbering of this Interim
                                             programs, or the rights and obligations       WIA, and requests comments about this
Final Rule. None of these changes is
                                             of recipients thereof; or (4) Raise novel     Interim Final Rule from State and local
intended to alter the meaning of the
                                             legal or policy issues arising out of legal   governments; public interest groups;
section.
   In addition, language has been added      mandates, the President’s priorities, or      current and potential grant applicants
to the section to clarify that the           the principles set forth in Executive         for and recipients of Federal financial
Department may withhold a grant              Order 12866. Therefore, no regulatory         assistance (particularly current and
applicant’s or recipient’s WIA Title I       impact analysis has been prepared.            potential providers of training services);
financial assistance in whole or in part,                                                  current and potential beneficiaries of
                                             Regulatory Flexibility Act
as explained in the discussion of                                                          such Federal financial assistance; other
                                                This Interim Final Rule does not           Federal agencies; and the public.
Section 37.100.                              substantially change the existing
Section 37.114 What procedure does           obligation of recipients or entities          Clarity Of This Regulation
the Department follow to distribute WIA      operating Federally-assisted programs or        Executive Order 12866 and the
Title I financial assistance to an           activities to apply a policy of               President’s memorandum of June 1,
alternate recipient?                         nondiscrimination and equal                   1998, require each agency to write all
  This section is identical to 29 CFR        opportunity in employment or services.        rules in plain language. The Department
34.53(b), except that the reference to       The Department of Labor certifies that        invites comments on how to make this
JTPA has been changed to refer to WIA.       the proposed rule will not have a             proposed rule easier to understand. For
This change is not intended to alter the     significant economic impact on                example:
meaning of the section.                      substantial number of small business          —Have we organized the material to suit
                                             entities. Therefore, a regulatory               your needs?
Section 37.115 What procedures does          flexibility analysis is not required.         —Are the requirements in the rule
the Department follow for post-                                                              clearly stated?
termination proceedings?                     Unfunded Mandates Reform
                                                                                           —Does the rule contain technical
   This section contains the same              Executive Order 12875—This rule               language or jargon that isn’t clear?
general requirements as 29 CFR               will not create an unfunded Federal           —Would a different format (grouping
34.52(c). Consistent with plain-language     Mandate upon any State, local, or tribal        and order of sections, use of headings,
guidelines, the material has been            government.                                     paragraphing) make the rule easier to
                                               Unfunded Mandate Reform Act of                understand?
slightly rewritten to improve its clarity.
                                             1995—This rule will not include any           —Would more (but shorter) sections be
Also, references to JTPA have been
                                             Federal mandate that may result in              better?
changed to refer to WIA, and references
                                             increased expenditures by State, local        —Could we improve clarity by adding
to other regulatory sections within part
                                             and tribal governments in the aggregate         tables, lists, or diagrams?
34 have been changed to reflect the
                                             of $100 million or more, or increased         —What else could we do to make the
numbering of this Interim Final Rule.
                                             expenditures by the private sector of           rule easier to understand?
None of these changes is intended to
                                             $100 million or more.
alter the meaning of the section.                                                          Absence of Notice of Proposed
   In addition, the sentence providing       Paperwork Reduction Act                       Rulemaking
that ‘‘[r]estoration to eligibility may be     Certain sections of this Interim Final        After full and fair consideration over
conditioned upon the grant applicant or      Rule, including §§ 37.8, 37.9, 37.20,         the months since passage of the
recipient entering into a consent            37.29, 37.30, 37.31, 37.34, 37.37, 37.38,     Workforce Investment Act of 1998, the
decree’’ has been deleted, in order to       37.39, 37.54, 37.73, and 37.74, contain       Department of Labor has determined
clarify that the grant applicant or          information collection requirements. As       that it is in the public interest not to
recipient must actually bring itself into    required by the Paperwork Reduction           publish a Notice of Proposed
compliance with the nondiscrimination        Act of 1995 (44 U.S.C. 3507(d)), the          Rulemaking (NPRM) regarding
and equal opportunity provisions of          Department of Labor has submitted a           implementation of Section 188 of the
Section 188 and this part before being       copy of these sections to the Office of       Act, but instead to publish this Interim
restored to eligibility for WIA Title I      Management and Budget (OMB) for its           Final Rule. This determination is based
financial assistance.                        review. Comments must be submitted            upon the schedule for implementation
IV. Regulatory Procedures                    by December 13, 1999 to: Desk Officer         of WIA.
                                             for the Department of Labor, Civil Rights       The WIA program is designed
Executive Order 12866                        Center, Office of Management and              eventually to supersede its predecessor
  The Department of Labor has                Budget, 725 17th Street, NW (Rm               program, the Job Training Partnership
determined that this Interim Final Rule      10235), Washington, DC 20503. Affected        Act (JTPA) program, which sunsets on
             Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                                61715

July 1, 2000. The regulations                  Furthermore, the Interim Final Rule            37.9  What are a recipient’s responsibilities
implementing JTPA therefore will            sets a comment period to elicit any                   to communicate with individuals with
remain in effect until that date.           concerns raised by the rule. The                      disabilities?
However, States have the option of          comment period takes place before the             37.10 To what extent are a recipient’s
                                                                                                  employment practices covered by this
implementing WIA Title I-financially        final rule will be implemented, so that
                                                                                                  part?
assisted programs and activities as early   CRC may receive comments in time to
                                                                                              37.11 To what extent are intimidation and
as July 1, 1999; indeed, the Department     consider them in preparing the final                  retaliation prohibited by this part?
is encouraging such early                   rule for publication.                             37.12 What Department of Labor office is
implementation.                                For the above-listed reasons, the                  responsible for administering this part?
   CRC is issuing the regulations           Department of Labor finds that                    37.13 Who is responsible for providing
implementing WIA’s nondiscrimination        publishing an NPRM, and providing a                   interpretations of this part?
and equal opportunity provisions as an      period for notice and comment, before             37.14 Under what circumstances may the
Interim Final Rule so that those            implementing this Interim Final Rule                  Secretary delegate the responsibilities of
                                            would be contrary to the public interest,             this part?
regulations will be in place as soon as
                                            and therefore constitute good cause               37.15 What are the Director’s
possible for early-implementation States                                                          responsibilities to coordinate with other
and their recipients. Generally, the Rule   under 5 U.S.C. 553(b)(B) for publishing
                                            these regulations as an Interim Final                 civil rights agencies?
tracks the nondiscrimination and equal                                                        37.16 What is this part’s effect on a
opportunity regulations in place under      Rule. Furthermore, the Department
                                                                                                  recipient’s obligations under other laws,
JTPA; the Rule does, however, contain       finds that the above-listed reasons also
                                                                                                  and what limitations apply?
a number of new or revised provisions       constitute good cause under 5 U.S.C.
that will require these States and their    553(d)(3) for waiving the customary               Subpart B—Recordkeeping and Other
recipients to take action before the date   requirement to delay the effective date           Affirmative Obligations of Recipients
on which they implement WIA, or as          of a regulation for 30 days following its
soon after that date as possible.           publication. Therefore, this Interim              Assurances
                                            Final Rule is effective immediately
   For example, each application for                                                          37.20 What is a grant applicant’s obligation
                                            upon publication.                                     to provide a written assurance?
financial assistance under either JTPA
or WIA Title I must contain assurances      List of Subjects in 29 CFR Part 37                37.21 How long will the recipient’s
                                                                                                  obligation under the assurance last, and
regarding the grant applicant’s               Administrative practice and                         how broad is the obligation?
compliance with various Federal laws        procedure, Discrimination, Civil rights,          37.22 How must covenants be used in
and regulations concerning                  Equal education opportunity, Equal                    connection with this part?
nondiscrimination and equal                 employment opportunity, Grant
opportunity. For the WIA program, the       programs—Labor, Individuals with                  Equal Opportunity Officers
required assurance has been rewritten in    disabilities, Investigations, Reporting           37.23 Who must designate an Equal
plain language. The new language            and recordkeeping requirements.                       Opportunity Officer?
appears in Section 37.20 of the Interim       Signed at Washington, D.C. this 22nd day        37.24 Who is eligible to serve as an Equal
Final Rule. Publication of the              of October 1999.                                      Opportunity Officer?
regulations as an immediately-effective     Alexis M. Herman,                                 37.25 What are the responsibilities of an
Interim Final Rule will eliminate any                                                             Equal Opportunity Officer?
                                            Secretary of Labor.
possible ambiguity regarding the                                                              37.26 What are a recipient’s obligations
language that grant applicants in early-      Accordingly, title 29, subtitle A of the            relating to the Equal Opportunity
implementation states must include in       Code of Federal Regulations is amended                Officer?
their applications for WIA Title I          by adding part 37 to read as follows:             37.27 What are the obligations of small
financial assistance.                                                                             recipients regarding Equal Opportunity
                                            PART 37—IMPLEMENTATION OF THE                         Officers?
  Similarly, Section 37.76 of the Rule      NONDISCRIMINATION AND EQUAL                       37.28 What are the obligations of service
contains a list of elements that a          OPPORTUNITY PROVISIONS OF THE                         providers regarding Equal Opportunity
recipient’s discrimination complaint        WORKFORCE INVESTMENT ACT OF                           Officers?
processing procedures must include.         1998 (WIA)                                        Notice and Communication
Although the JTPA nondiscrimination
regulations contained a general             Subpart A—General Provisions                      37.29 What are a recipient’s obligations to
requirement that recipients adopt and                                                             disseminate its equal opportunity
publish complaint processing                Sec.                                                  policy?
procedures, the new list of requisite       37.1 What is the purpose of this part?            37.30 What specific wording must the
elements for those procedures is more       37.2 To whom does this part apply, and                notice contain?
                                                 what is the scope of this part?              37.31 Where must the notice required by
detailed, and recipients in early-          37.3 How does this part affect a recipient’s          §§ 37.29 and 37.30 be published?
implementing states will need to know            other obligations?                           37.32 When must the notice be provided?
as soon as possible the actual              37.4 What definitions apply to this part?         37.33 Who is responsible for meeting the
requirements for those procedures in        37.5 What forms of discrimination are                 notice requirement with respect to
order to ensure that their complaint             prohibited by this part?                         service providers?
processing procedures comply with the       37.6 What specific discriminatory actions,
                                                                                              37.34 What type of notice must a recipient
requirements of the WIA program.                 based on prohibited grounds other than
                                                                                                  include in publications, broadcasts, and
Publishing an Interim Final Rule, rather         disability, are prohibited by this part?
                                                                                                  other communications?
than an NPRM, will assist States and        37.7 What specific discriminatory actions
                                                                                              37.35 What are a recipient’s responsibilities
                                                 based on disability are prohibited by this
recipients by providing a firm list of           part?
                                                                                                  to provide services and information in
requirements that will be in place on or                                                          languages other than English?
                                            37.8 What are a recipient’s responsibilities
soon after the date of implementation,           regarding reasonable accommodation           37.36 What responsibilities does a recipient
rather than a proposed list that might           and reasonable modification for                  have to communicate information during
change before that date.                         individuals with disabilities?                   orientations?
61716           Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

Data and Information Collection and               37.69 What happens if a recipient fails to      37.94 What corrective or remedial actions
Maintenance                                           show cause?                                     may be imposed where, after a
                                                                                                      compliance review or complaint
37.37 What are a recipient’s responsibilities     Complaint Processing Procedures                     investigation, the Director finds a
    to collect and maintain data and other                                                            violation of the nondiscrimination and
    information?                                  37.70 Who may file a complaint concerning
                                                      discrimination connected with WIA Title         equal opportunity provisions of WIA or
37.38 What information must grant                                                                     this part?
    applicants and recipients provide to              I?
                                                  37.71 Where may a complaint be filed?           37.95 What procedures apply if the Director
    CRC?                                                                                              finds that a recipient has violated the
37.39 How long must grant applicants and          37.72 When must a complaint be filed?
                                                                                                      nondiscrimination and equal
    recipients maintain the records required      37.73 What information must a complaint
                                                                                                      opportunity provisions of WIA or this
    under this part?                                  contain?
                                                                                                      part?
37.40 What access to sources of information       37.74 Are there any forms that a
                                                                                                  37.96 What are the required elements of a
    must grant applicants and recipients              complainant may use to file a complaint?
                                                                                                      written assurance?
    provide the Director?                         37.75 Is there a right of representation in     37.97 What are the required elements of a
37.41 What responsibilities do grant                  the complaint process?                          Conciliation Agreement?
    applicants, recipients, and the               37.76 What are the required elements of a       37.98 What are the circumstances under
    Department have to maintain the                   recipient’s discrimination complaint            which the Director will conclude that
    confidentiality of the information                processing procedures?                          compliance cannot be secured by
    collected?                                    37.77 Who is responsible for developing             voluntary means?
37.42 What are a recipient’s responsibilities         and publishing complaint processing         37.99 If the Director concludes that
    under this part to provide universal              procedures for service providers?               compliance cannot be secured by
    access to WIA Title I-financially assisted    37.78 Does a recipient have any special             voluntary means, what actions must he
    programs and activities?                          obligations in cases in which the               or she take?
                                                      recipient determines that it has no         37.100 What information must a Final
Subpart C—Governor’s                                  jurisdiction over a complaint?                  Determination contain?
Responsibilities to Implement the                 37.79 If, before the 90-day period has          37.101 Whom must the Director notify of a
Nondiscrimination and Equal                           expired, a recipient issues a Notice of         finding of noncompliance?
Opportunity Requirements of WIA                       Final Action with which the
                                                      complainant is dissatisfied, how long       Breaches of Conciliation Agreements
37.50 To whom does this subpart apply?                does the complainant have to file a         37.102 What happens if a grant applicant or
37.51 What are a Governor’s oversight                 complaint with the Director?                    recipient breaches a Conciliation
    responsibilities?                             37.80 What happens if a recipient fails to          Agreement?
37.52 To what extent may a Governor be                issue a Notice of Final Action within 90    37.103 Whom must the Director notify
    liable for the actions of a recipient he or       days of the date on which a complaint           about a breach of a Conciliation
    she has financially assisted under WIA            was filed?                                      Agreement?
    Title I?                                      37.81 Are there any circumstances under         37.104 What information must a
37.53 What are a Governor’s oversight                 which the Director may extend the time          Notification of Breach of Conciliation
    responsibilities regarding recipients’            limit for filing a complaint with him or        Agreement contain?
    recordkeeping?                                    her?                                        37.105 Whom must the Director notify if
37.54 That are a Governor’s obligations to        37.82 Does the Director accept every                enforcement action under a Notification
    develop and maintain a Methods of                 complaint for resolution?                       of Breach of Conciliation Agreement is
    Administration?                               37.83 What happens if a complaint does not          commenced?
37.55 When must the Governor carry out                contain enough information?
    his or her obligations with regard to the     37.84 What happens if CRC does not have         Subpart E—Federal Procedures For
    Methods of Administration?                        jurisdiction over a complaint?              Effecting Compliance
                                                  37.85 Are there any other circumstances in      37.110 What enforcement procedures does
Subpart D—Compliance Procedures                       which the Director will send a complaint         the Department follow to effect
37.60 How does the Director evaluate                  to another authority?                            compliance with the nondiscrimination
    compliance with the nondiscrimination         37.86 What must the Director do if he or             and equal opportunity provisions of WIA
    and equal opportunity provisions of WIA           she determines that a complaint will not         and this part?
    and this part?                                    be accepted?                                37.111 What hearing procedures does the
37.61 Is there authority to issue subpoenas?      37.87 What must the Director do if he or             Department follow?
                                                      she determines that a complaint will be     37.112 What procedures for initial and final
Compliance Reviews                                    accepted?                                        decisions does the Department follow?
                                                  37.88 Who may contact CRC about a               37.113 What procedure does the
37.62 What are the authority and
                                                      complaint?                                       Department follow to suspend,
    procedures for conducting pre-approval
    compliance reviews?                           37.89 May the Director offer the parties to          terminate, withhold, deny or discontinue
37.63 What are the authority and                      a complaint the option of mediation?             WIA Title I financial assistance?
    procedures for conducting post-approval                                                       37.114 What procedure does the
                                                  Determinations
    compliance reviews?                                                                                Department follow to distribute WIA
37.64 What procedures must the Director           37.90 If a complaint is investigated, what           Title I financial assistance to an alternate
    follow when CRC has completed a post-             must the Director do when the                    recipient?
    approval compliance review?                       investigation is completed?                 37.115 What procedures does the
37.65 What is the Director’s authority to         37.91 What notice must the Director issue            Department follow for post-termination
    monitor the activities of a Governor?             if he or she finds reasonable cause to           proceedings?
37.66 What happens if a recipient fails to            believe that a violation has taken place?     Authority: Sections 134(b), 136(d)(2)(F),
    submit requested data, records, and/or        37.92 What notice must the Director issue       136(e), 172(a), 183(c), 185(c)(2), 185(d)(1)(E),
    information, or fails to provide CRC with         if he or she finds no reasonable cause to   186, 187 and 188 of the Workforce
    the required access?                              believe that a violation has taken place?   Investment Act of 1998, 29 U.S.C. 2801 et
37.67 What information must a Notice to           37.93 What happens if the Director finds        seq.; Title VI of the Civil Rights Act of 1964,
    Show Cause contain?                               that a violation has taken place, and the   as amended, 42 U.S.C. 2000d, et seq.; Section
37.68 How may a recipient show cause why              recipient fails or refuses to take the      504 of the Rehabilitation Act of 1973, as
    enforcement proceedings should not be             corrective action listed in the Initial     amended, 29 U.S.C. 794; the Age
    instituted?                                       Determination?                              Discrimination Act of 1975, as amended, 42
              Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                              61717

U.S.C. 6101; and Title IX of the Education     regulations implementing Title VI of the           Administrative Law Judge means a
Amendments of 1972, as amended, 20 U.S.C.      Civil Rights Act of 1964, as amended            person appointed as provided in 5
1681.                                          (Title VI), and with Subparts A, D and          U.S.C. 3105 and 5 CFR 930.203, and
                                               E of 29 CFR part 32, the Department’s           qualified under 5 U.S.C. 557, to preside
Subpart A—General Provisions
                                               regulations implementing Section 504 of         at hearings held under the
§ 37.1 What is the purpose of this part?       the Rehabilitation Act of 1973, as              nondiscrimination and equal
  The purpose of this part is to               amended (Section 504).                          opportunity provisions of WIA and this
implement the nondiscrimination and               (b) 29 CFR part 32, Subparts B and C         part.
equal opportunity provisions of the            and Appendix A, the Department’s                   Aid, benefits, services, or training
Workforce Investment Act of 1998               regulations which implement the                 means WIA Title I—financially assisted
(WIA), which are contained in section          requirements of Section 504 pertaining          services, financial or other aid, or
188 of WIA. Section 188 prohibits              to employment practices and                     benefits provided by or through a
discrimination on the grounds of race,         employment-related training, program            recipient or its employees, or by others
color, religion, sex, national origin, age,    accessibility, and reasonable                   through contract or other arrangements
disability, political affiliation or belief,   accommodation, are hereby                       with the recipient. ‘‘Aid, benefits,
and for beneficiaries only, citizenship or     incorporated into this part by reference.       services, or training’’ includes, but is
participation in a WIA Title I-financially     Therefore, recipients must comply with          not limited to:
assisted program or activity. This part        the requirements set forth in those                (1) Core and intensive services;
clarifies the application of the               regulatory sections as well as the                 (2) Education or training;
nondiscrimination and equal                    requirements listed in this part.                  (3) Health, welfare, housing, social
opportunity provisions of WIA and                 (c) Recipients that are also public          service, rehabilitation, or other
provides uniform procedures for                entities or public accommodations, as           supportive services;
implementing them.                             defined by Titles II and III of the                (4) Work opportunities; and
                                               Americans with Disabilities Act of 1990            (5) Cash, loans, or other financial
§ 37.2 To whom does this part apply, and       (ADA), should be aware of obligations           assistance to individuals.
what is the scope of this part?                imposed by those titles.                           As used in this part, the term includes
   (a) This part applies to:                      (d) Similarly, recipients that are also      any aid, benefits, services, or training
   (1) Any recipient, as defined in § 37.4;    employers, employment agencies, or              provided in or through a facility that has
   (2) Programs and activities that are        other entities covered by Title I of the        been constructed, expanded, altered,
part of the One-Stop delivery system           ADA should be aware of obligations              leased, rented, or otherwise obtained, in
and that are operated by One-Stop              imposed by that title.                          whole or in part, with Federal financial
partners listed in section 121(b) of WIA,         (e) Compliance with this part does not       assistance under Title I of WIA.
to the extent that the programs and            affect, in any way, any additional                 Applicant means an individual who is
activities are being conducted as part of      obligation that a recipient may have to         interested in being considered for WIA
the One-Stop delivery system; and              comply with the following laws and              Title I—financially assisted aid,
   (3) The employment practices of a           their implementing regulations:                 benefits, services, or training by a
recipient and/or One-Stop partner, as             (1) Executive Order 11246, as                recipient, and who has signified that
provided in § 37.10.                           amended;                                        interest by submitting personal
   (b) Limitation of Application. This            (2) Sections 503 and 504 of the              information in response to a request by
part does not apply to:                        Rehabilitation Act of 1973, as amended          the recipient. See also the definitions of
   (1) Programs or activities that are         (29 U.S.C. 793 and 794);                        ‘‘application for benefits,’’ ‘‘eligible
financially assisted by the Department            (3) The affirmative action provisions        applicant/registrant,’’ ‘‘participant,’’
exclusively under laws other than Title        of the Vietnam Era Veterans’                    ‘‘participation,’’ and ‘‘recipient’’ in this
I of WIA, and that are not part of the         Readjustment Assistance Act of 1974, as         section.
One-Stop delivery system (including            amended (38 U.S.C. 4212);                          Applicant for employment means a
programs or activities implemented                (4) The Equal Pay Act of 1963, as
                                                                                               person or persons who make(s)
under, authorized by, and/or financially       amended (29 U.S.C. 206d);
                                                                                               application for employment with a
assisted by the Department under,                 (5) Titles VI and VII of the Civil Rights
                                                                                               recipient of Federal financial assistance
JTPA);                                         Act of 1964, as amended (42 U.S.C.
                                                                                               under WIA Title I.
   (2) Contracts of insurance or guaranty;     2000d et seq. and 2000e et seq.);
   (3) The ultimate beneficiary to this           (6) The Age Discrimination Act of               Application for assistance means the
program of Federal financial assistance;       1975, as amended (42 U.S.C. 6101);              process by which required
   (4) Federal procurement contracts,             (7) The Age Discrimination in                documentation is provided to the
with the exception of contracts to             Employment Act of 1967, as amended              Governor, recipient, or Department
operate or provide services to Job Corps       (29 U.S.C. 621);                                before and as a condition of receiving
Centers; and                                      (8) Title IX of the Education                WIA Title I financial assistance
   (5) Federally-operated Job Corps            Amendments of 1972, as amended (Title           (including both new and continuing
Centers. The operating Department is           IX) (20 U.S.C. 1681);                           assistance).
responsible for enforcing the                     (9) The Americans with Disabilities             Application for benefits means the
nondiscrimination and equal                    Act of 1990, as amended (42 U.S.C.              process by which information,
opportunity laws to which such Centers         12101 et seq.); and                             including but not limited to a completed
are subject.                                      (10) The anti-discrimination provision       application form, is provided by
                                               of the Immigration and Nationality Act,         applicants or eligible applicants before
§ 37.3 How does this part affect a             as amended (8 U.S.C. 1324b).                    and as a condition of receiving WIA
recipient’s other obligations?                    (f) This rule does not preempt               Title I—financially assisted aid,
  (a) A recipient’s compliance with this       consistent State and local requirements.        benefits, services, or training from a
part will satisfy any obligation of the                                                        recipient.
recipient to comply with 29 CFR part           § 37.4   What definitions apply to this part?      Assistant Attorney General means the
31, the Department of Labor’s                    As used in this part, the term:               Assistant Attorney General, Civil Rights
61718         Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

Division, United States Department of        hemic and lymphatic, skin, and               employment, including but not limited
Justice.                                     endocrine;                                   to:
   Assistant Secretary means the                (B) Any mental or psychological              (1) Recruitment or recruitment
Assistant Secretary for Administration       disorder such as mental retardation,         advertising;
and Management, United States                organic brain syndrome, emotional or            (2) Selection, placement, layoff or
Department of Labor.                         mental illness, and specific learning        termination of employees;
   Auxiliary aids or services includes—      disabilities.                                   (3) Upgrading, promotion, demotion
   (1) Qualified interpreters, notetakers,      (ii) The phrase physical or mental        or transfer of employees;
transcription services, written materials,   impairment includes, but is not limited         (4) Training, including employment-
telephone handset amplifiers, assistive      to, such contagious and noncontagious        related training;
listening systems, telephones                diseases and conditions as orthopedic,          (5) Participation in upward mobility
compatible with hearing aids, closed         visual, speech and hearing impairments,      programs;
caption decoders, open and closed            cerebral palsy, epilepsy, muscular              (6) Deciding rates of pay or other
captioning, telecommunications devices       dystrophy, multiple sclerosis, cancer,       forms of compensation;
for deaf persons (TDDs/TTYs), videotext      heart disease, diabetes, mental                 (7) Use of facilities; or
                                             retardation, emotional illness, specific        (8) Deciding other terms, conditions,
displays, or other effective means of
                                             learning disabilities, HIV disease           benefits and/or privileges of
making aurally delivered materials
                                             (whether symptomatic or                      employment.
available to individuals with hearing
                                                                                             Employment-related training means
impairments;                                 asymptomatic), tuberculosis, drug
                                                                                          training that allows or enables an
   (2) Qualified readers, taped texts,       addiction, and alcoholism. The phrase
                                                                                          individual to obtain employment.
audio recordings, brailled materials,        ‘‘physical or mental impairment’’ does
                                                                                             Entity means any person, corporation,
large print materials, or other effective    not include homosexuality or
                                                                                          partnership, joint venture, sole
means of making visually delivered           bisexuality.
                                                                                          proprietorship, unincorporated
materials available to individuals with         (2) The phrase major life activities      association, consortium, Indian tribe or
visual impairments;                          means functions such as caring for one’s     tribal organization, Native Hawaiian
   (3) Acquisition or modification of        self, performing manual tasks, walking,      organization, and/or entity authorized
equipment or devices; and                    seeing, hearing, speaking, breathing,        by State or local law; any State or local
   (4) Other similar services and actions.   learning, and working.                       government; and/or any agency,
   Beneficiary means the individual or          (3) The phrase has a record of such       instrumentality or subdivision of such a
individuals intended by Congress to          an impairment means has a history of,        government.
receive aid, benefits, services, or          or has been misclassified as having, a          Facility means all or any portion of
training from a recipient.                   mental or physical impairment that           buildings, structures, sites, complexes,
   Citizenship See ‘‘Discrimination on       substantially limits one or more major       equipment, roads, walks, passageways,
the ground of citizenship’’ in this          life activities.                             parking lots, rolling stock or other
section.                                        (4) The phrase is regarded as having      conveyances, or other real or personal
   CRC means the Civil Rights Center,        an impairment means—                         property or interest in such property,
Office of the Assistant Secretary for           (i) Has a physical or mental              including the site where the building,
Administration and Management, U.S.          impairment that does not substantially       property, structure, or equipment is
Department of Labor.                         limit major life activities but that is      located. The phrase ‘‘real or personal
   Department means the U.S.                 treated by the recipient as being such a     property’’ in the preceding sentence
Department of Labor (DOL), including         limitation;                                  includes indoor constructs that may or
its agencies and organizational units.          (ii) Has a physical or mental             may not be permanently attached to a
   Departmental grantmaking agency           impairment that substantially limits         building or structure. Such constructs
means a grantmaking agency within the        major life activities only as a result of    include, but are not limited to, office
U.S. Department of Labor.                    the attitudes of others toward such          cubicles, computer kiosks, and similar
   Director means the Director, Civil        impairment; or                               constructs.
Rights Center (CRC), Office of the              (iii) Has none of the impairments            Federal grantmaking agency means a
Assistant Secretary for Administration       defined in paragraph (1) of this             Federal agency that provides financial
and Management, U.S. Department of           definition but is treated by the recipient   assistance under any Federal statute.
Labor, or a designee authorized to act       as having such an impairment.                   Financial assistance means any of the
for the Director.                               Discrimination on the ground of           following:
   Disability means, with respect to an      citizenship means a denial of                   (1) Any grant, subgrant, loan, or
individual, a physical or mental             participation in programs or activities      advance of funds, including funds
impairment that substantially limits one     financially assisted in whole or in part     extended to any entity for payment to or
or more of the major life activities of      under Title I of WIA to individuals on       on behalf of participants admitted to
such individual; a record of such an         the basis of their status as citizens or     that entity for training, or extended
impairment; or being regarded as having      nationals of the United States, lawfully     directly to such participants for
such an impairment.                          admitted permanent resident aliens,          payment to that entity;
   (1)(i) The phrase physical or mental      refugees, asylees, and parolees, or other       (2) Provision of the services of
impairment means—                            immigrants authorized by the Attorney        grantmaking agency personnel, or of
   (A) Any physiological disorder or         General to work in the United States.        other personnel at the grantmaking
condition, cosmetic disfigurement, or           Eligible applicant/registrant means an    agency’s expense;
anatomical loss affecting one or more of     individual who has been determined              (3) A grant or donation of real or
the following body systems:                  eligible to participate in one or more       personal property or any interest in or
neurological, musculoskeletal, special       WIA Title I—financially assisted             use of such property, including:
sense organs, respiratory (including         programs or activities.                         (a) Transfers or leases of property for
speech organs), cardiovascular,                 Employment practices means a              less than fair market value or for
reproductive, digestive, genitourinary,      recipient’s practices related to             reduced consideration;
              Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                          61719

   (b) Proceeds from a subsequent sale,          (4) Waiver of charges that would            the Governor, recipient, or Department,
transfer, or lease of such property, if the   normally be made for the furnishing of         before and as a condition of receiving
grantmaking agency’s share of the fair        Government services; and                       financial assistance under Title I of
market value of the property is not              (5) Any other agreement, arrangement,       WIA.
returned to the grantmaking agency; and       contract or subcontract (other than a             Grantmaking agency means an entity
   (c) The sale, lease, or license of, and/   Federal procurement contract or a              that provides Federal financial
or the permission to use (other than on       contract of insurance or guaranty), or         assistance.
a casual or transient basis), such            other instrument that has as one of its           Guideline means written
property or any interest in such              purposes the provision of assistance or        informational material supplementing
property, either:                             benefits under WIA Title I.                    an agency’s regulations and provided to
   (i) Without consideration,                    Fundamental alteration means:               grant applicants and recipients to
   (ii) At a nominal consideration, or           (1) A change in the essential nature of     provide program-specific interpretations
   (iii) At a consideration that is reduced   a program or activity as defined in this       of their responsibilities under the
or waived either for the purpose of           part, including but not limited to an aid,     regulations.
assisting the recipient, or in recognition    service, benefit, or training; or                 Illegal use of drugs means the use of
                                                 (2) A cost that a recipient can             drugs, the possession or distribution of
of the public interest to be served by
                                              demonstrate would result in an undue           which is unlawful under the Controlled
such sale or lease to or use by the
                                              burden. Factors to be considered in            Substances Act, as amended (21 U.S.C.
recipient;
                                              making the determination whether the           812). ‘‘Illegal use of drugs’’ does not
   (4) Waiver of charges that would           cost of a modification would result in
normally be made for the furnishing of                                                       include the use of a drug taken under
                                              such a burden include:                         supervision of a licensed health care
services by the grantmaking agency; and          (a) The nature and net cost of the
   (5) Any other agreement, arrangement,                                                     professional, or other uses authorized by
                                              modification needed, taking into               the Controlled Substances Act or other
contract or subcontract (other than a         consideration the availability of tax
procurement contract or a contract of                                                        provisions of Federal law.
                                              credits and deductions, and/or outside            Individual with a disability means a
insurance or guaranty), or other              financial assistance, for the
instrument that has as one of its                                                            person who has a disability, as defined
                                              modification;                                  in this section.
purposes the provision of assistance or          (b) The overall financial resources of         (1) The term ‘‘individual with a
benefits under the statute or policy that     the facility or facilities involved in the     disability’’ does not include an
authorizes assistance by the                  provision of the modification,                 individual on the basis of:
grantmaking agency.                           including:                                        (i) Transvestism, transsexualism,
   Financial assistance under Title I of         (i) The number of persons aided,            pedophilia, exhibitionism, voyeurism,
WIA means any of the following, when          benefited, served, or trained by, or           gender identity disorders not resulting
authorized or extended under WIA Title        employed at, the facility or facilities;       from physical impairments, or other
I:                                            and                                            sexual behavior disorders;
   (1) Any grant, subgrant, loan, or             (ii) The effect the modification would         (ii) Compulsive gambling,
advance of Federal funds, including           have on the expenses and resources of          kleptomania, or pyromania; or
funds extended to any entity for              the facility or facilities;                       (iii) Psychoactive substance use
payment to or on behalf of participants          (c) The overall financial resources of      disorders resulting from current illegal
admitted to that entity for training, or      the recipient, including:                      use of drugs.
extended directly to such participants           (i) The overall size of the recipient;         (2) The term ‘‘individual with a
for payment to that entity;                      (ii) The number of persons aided,
                                                                                             disability’’ also does not include an
   (2) Provision of the services of Federal   benefited, served, trained, or employed
                                                                                             individual who is currently engaging in
personnel, or of other personnel at           by the recipient; and
                                                                                             the illegal use of drugs, when a recipient
Federal expense;                                 (iii) The number, type and location of
                                                                                             acts on the basis of such use. This
   (3) A grant or donation of Federal real    the recipient’s facilities;
                                                 (d) The type of operation or                limitation does not exclude as an
or personal property or any interest in                                                      individual with a disability an
or use of such property, including:           operations of the recipient, including:
                                                 (i) The geographic separateness and         individual who:
   (a) Transfers or leases of property for                                                      (i) Has successfully completed a
                                              administrative or fiscal relationship of
less than fair market value or for                                                           supervised drug rehabilitation program
                                              the facility or facilities in question to
reduced consideration;                                                                       and is no longer engaging in the illegal
                                              the recipient; and
   (b) Proceeds from a subsequent sale,          (ii) Where the modification sought is       use of drugs, or has otherwise been
transfer, or lease of such property, if the   employment-related, the composition,           rehabilitated successfully and is no
Federal share of the fair market value of     structure and functions of the                 longer engaging in such use;
the property is not returned to the           recipient’s workforce; and                        (ii) Is participating in a supervised
Federal Government; and                          (e) The impact of the modification          rehabilitation program and is no longer
   (c) The sale, lease, or license of, and/   upon the operation of the facility or          engaging in such use; or
or the permission to use (other than on       facilities, including:                            (iii) Is erroneously regarded as
a casual or transient basis), such               (i) The impact on the ability of other      engaging in such use, but is not
property or any interest in such              participants to receive aid, benefits,         engaging in such use, except that it is
property, either:                             services, or training, or of other             not a violation of the nondiscrimination
   (i) Without consideration,                 employees to perform their duties; and         and equal opportunity provisions of
   (ii) At a nominal consideration, or           (ii) The impact on the facility’s ability   WIA or this part for a recipient to adopt
   (iii) At a consideration that is reduced   to carry out its mission.                      or administer reasonable policies or
or waived either for the purpose of              Governor means the chief elected            procedures, including but not limited to
assisting the recipient, or in recognition    official of any State or his or her            drug testing, designed to ensure that an
of the public interest to be served by        designee.                                      individual described in paragraph (1)(i)
such sale or lease to or use by the              Grant applicant means an entity that        or (1)(ii) of this definition is no longer
recipient;                                    submits the required documentation to          engaging in the illegal use of drugs.
61720         Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

   (2) With regard to employment, the        wage rate of the participant, for the            (2) With respect to aid, benefits,
term ‘‘individual with a disability’’ does   extraordinary costs of providing the          services, or training, an individual with
not include any individual who:              training and additional supervision           a disability who, with or without
   (i) Is an alcoholic:                      related to the training; and                  reasonable accommodation and/or
   (A) Whose current use of alcohol             (3) Is limited in duration as              reasonable modification, meets the
prevents such individual from                appropriate to the occupation for which       essential eligibility requirements for the
performing the duties of the job in          the participant is being trained, taking      receipt of such aid, benefits, services, or
question, or                                 into account the content of the training,     training.
   (B) Whose employment, by reason of        the prior work experience of the                 Qualified interpreter means an
such current alcohol abuse, would            participant, and the service strategy of      interpreter who is able to interpret
constitute a direct threat to property or    the participant, as appropriate.              effectively, accurately, and impartially,
the safety of others; or                        Participant means an individual who        either for individuals with disabilities
   (ii) Has a currently contagious disease   has been determined to be eligible to         or for individuals with limited English
or infection, if:                            participate in, and who is receiving aid,     skills. The interpreter must be able to
   (A) That disease or infection prevents    benefits, services or training under, a       interpret both receptively and
him or her from performing the duties        program or activity funded in whole or        expressively, using any necessary
of the job in question, or                   in part under Title I of WIA.                 specialized vocabulary.
   (B) His or her employment, because of     ‘‘Participant’’ includes, but is not             Reasonable accommodation. (1) The
that disease or infection, would                                                           term ‘‘reasonable accommodation’’
                                             limited to, applicants receiving any
constitute a direct threat to the health                                                   means:
                                             service(s) under state Employment
and safety of others.                                                                         (i) Modifications or adjustments to an
   Labor market area means an                Service programs, and claimants
                                             receiving any service(s) under state          application/registration process that
economically integrated geographic area
                                             Unemployment Insurance programs.              enables a qualified applicant/registrant
within which individuals can reside
                                                Participation is considered to             with a disability to be considered for the
and find employment within a
                                             commence on the first day, following          aid, benefits, services, training, or
reasonable distance or can readily
                                             determination of eligibility, on which        employment that the qualified
change employment without changing
                                             the participant began receiving               applicant/registrant desires; or
their place of residence. Such an area                                                        (ii) Modifications or adjustments that
must be identified in accordance with        subsidized aid, benefits, services, or
                                             training provided under Title I of WIA.       enable a qualified individual with a
either criteria used by the Bureau of
                                                Parties to a hearing means the             disability to perform the essential
Labor Statistics of the Department of
                                             Department and the grant applicant(s),        functions of a job, or to receive aid,
Labor in defining such areas, or similar
                                             recipient(s), or Governor.                    benefits, services, or training equal to
criteria established by a Governor.
                                                Population eligible to be served means     that provided to qualified individuals
   LWIA (Local Workforce Investment
                                             the total population of adults and            without disabilities. These
Area) grant recipient means the entity
that receives WIA Title I financial          eligible youth who reside within the          modifications or adjustments may be
assistance for a Local Workforce             labor market area that is served by a         made to:
                                             particular recipient, and who are                (A) The environment where work is
Investment Area directly from the
                                             eligible to seek WIA Title I-financially      performed or aid, benefits, services, or
Governor and disburses those funds for
                                             assisted aid, benefits, services or           training are given; or
workforce investment activities.
                                             training from that recipient. See the            (B) The customary manner in which,
   Methods of Administration means the
written document and supporting              definition of ‘‘labor market area’’ in this   or circumstances under which, a job is
documentation developed under                section.                                      performed or aid, benefits, services, or
§ 37.54.                                        Program or activity: See ‘‘WIA Title I-    training are given; or
   National Programs means:                  financially assisted program or activity’’       (iii) Modifications or adjustments that
   (1) Job Corps; and                        in this section.                              enable a qualified individual with a
   (2) Programs receiving Federal funds         Prohibited ground means any basis          disability to enjoy the same benefits and
under Title I, Subtitle D of WIA directly    upon which it is illegal to discriminate      privileges of the aid, benefits, services,
from the Department. Such programs           under the nondiscrimination and equal         training, or employment as are enjoyed
include, but are not limited to, the         opportunity provisions of WIA or this         by other similarly situated individuals
Migrant and Seasonal Workers                 part, i.e., race, color, religion, sex,       without disabilities.
Programs, Native American Programs,          national origin, age, disability, political      (2) Reasonable accommodation
and Veterans’ Workforce Investment           affiliation or belief, and, for               includes, but is not limited to:
programs.                                    beneficiaries only, citizenship or               (i) Making existing facilities used by
   Noncompliance means a failure of a        participation in a WIA Title I-financially    applicants, registrants, eligible
grant applicant or recipient to comply       assisted program or activity.                 applicants/registrants, participants,
with any of the applicable requirements         Public entity means:                       applicants for employment, and
of the nondiscrimination and equal              (1) Any State or local government;         employees readily accessible to and
opportunity provisions of WIA or this        and                                           usable by individuals with disabilities;
part.                                           (2) Any department, agency, special        and
   On-the-Job Training (OJT) means           purpose district, workforce investment           (ii) Restructuring of a job or a service,
training by an employer that is provided     board, or other instrumentality of a State    or of the way in which aid, benefits, or
to a paid participant while the              or States or local government.                training is/are provided; part-time or
participant is engaged in productive            Qualified individual with a disability     modified work or training schedules;
work that:                                   means:                                        acquisition or modification of
   (1) Provides knowledge or skills             (1) With respect to employment, an         equipment or devices; appropriate
essential to the full and adequate           individual with a disability who, with        adjustment or modifications of
performance of the job;                      or without reasonable accommodation,          examinations, training materials, or
   (2) Provides reimbursement to the         is capable of performing the essential        policies; the provision of readers or
employer of up to 50 percent of the          functions of the job in question;             interpreters; and other similar
             Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                          61721

accommodations for individuals with          ‘‘participation,’’ and ‘‘recipient’’ in this      (2) The Governor retains the grant
disabilities.                                section.                                       funds and operates the programs, either
   (3) To determine the appropriate             Respondent means a grant applicant          directly or through a State agency.
reasonable accommodation, it may be          or recipient (including a Governor)               ‘‘State programs’’ also includes State
necessary for the recipient to initiate an   against which a complaint has been             Employment Security Agencies, State
informal, interactive process with the       filed under the nondiscrimination and          Employment Service agencies, and/or
qualified individual with a disability in    equal opportunity provisions of WIA or         State unemployment compensation
need of the accommodation. This              this part.                                     agencies.
process should identify the precise             Secretary means the Secretary of               Supportive services means services,
limitations resulting from the disability    Labor, U.S. Department of Labor, or his        such as transportation, child care,
and potential reasonable                     or her designee.                               dependent care, housing, and needs-
accommodations that could overcome              Sectarian activities means religious        related payments, that are necessary to
those limitations.                           worship or ceremony, or sectarian              enable an individual to participate in
   Recipient means any entity to which       instruction.                                   WIA Title I-financially assisted
financial assistance under WIA Title I is       Section 504 means Section 504 of the        programs and activities, as consistent
extended, either directly from the           Rehabilitation Act of 1973, 29 U.S.C.          with the provisions of WIA.
Department or through the Governor or        794, as amended, which forbids                    Terminee means a participant whose
another recipient (including any             discrimination against qualified               participation in the program terminates,
successor, assignee, or transferee of a      individuals with disabilities in               voluntarily or involuntarily, during the
recipient), but excluding the ultimate       federally-financed and conducted               applicable program year.
beneficiaries of the WIA Title I-funded      programs and activities.                          Title VI means Title VI of the Civil
program or activity. In instances in            Service provider means:                     Rights Act of 1964, 42 U.S.C. 2000d, et
which a Governor operates a program or          (1) Any operator of, or provider of aid,    seq., as amended, which forbids
activity, either directly or through a       benefits, services, or training to:            recipients of Federal financial assistance
State agency, using discretionary funds         (a) Any WIA Title I—funded program          from discriminating on the basis of race,
apportioned to him or her under WIA          or activity that receives financial            color, or national origin.
Title I (rather than disbursing the funds    assistance from or through any State or           Transferee means a person or entity to
to another recipient), the Governor is       LWIA grant recipient; or                       whom real or personal property, or an
also a recipient. ‘‘Recipient’’ includes,       (b) Any participant through that            interest in such property, is transferred.
but is not limited to:                       participant’s Individual Training                 Ultimate beneficiary See the
   (1) State-level agencies that             Account (ITA); or                              definition of ‘‘beneficiary’’ in this
administer, or are financed in whole or         (2) Any entity that is selected and/or      section.
in part with, WIA Title I funds;             certified as an eligible provider of              Undue hardship This term has
   (2) State Employment Security             training services to participants.             different meanings, depending upon
Agencies;                                       Small recipient means a recipient           whether it is used with regard to
   (3) State and local Workforce             who:                                           reasonable accommodation of
Investment Boards;                              (a) Serves a total of fewer than 15         individuals with disabilities, or with
   (4) LWIA grant recipients;                beneficiaries during the entire grant          regard to religious accommodation.
   (5) One-Stop operators;
                                             year, and                                         (1) Reasonable accommodation of
   (6) Service providers, including
                                                (b) Employs fewer than 15 employees         individuals with disabilities: (i) In
eligible training providers;
   (7) On-the-Job Training (OJT)             on any given day during the grant year.        general, ‘‘undue hardship’’ means
employers;                                      Solicitor means the Solicitor of Labor,     significant difficulty or expense
   (8) Job Corps contractors and center      U.S. Department of Labor, or his or her        incurred by a recipient, when
operators, excluding the operators of        designee.                                      considered in light of the factors set
federally-operated Job Corps centers;           State means the individual states of        forth in paragraph (ii).
   (9) Job Corps national training           the United States, the District of                (ii) Factors to be considered in
contractors;                                 Columbia, the Commonwealth of Puerto           determining whether an accommodation
   (10) Outreach and admissions              Rico, the Virgin Islands, American             would impose an undue hardship on a
agencies, including Job Corps                Samoa, Guam, Wake Island, the                  recipient include:
contractors that perform these functions;    Commonwealth of the Northern Mariana              (A) The nature and net cost of the
   (11) Placement agencies, including        Islands, the Federated States of               accommodation needed, taking into
Job Corps contractors that perform these     Micronesia, the Republic of the                consideration the availability of tax
functions; and                               Marshall Islands, and Palau.                   credits and deductions, and/or outside
   (12) Other National Program                  State Employment Security Agency            funding, for the accommodation;
recipients.                                  (SESA) means the State agency that,               (B) The overall financial resources of
   In addition, for purposes of this part,   under the State Administrator, contains        the facility or facilities involved in the
One-Stop partners, as defined in section     both State agencies with responsibility        provision of the reasonable
121(b) of WIA, are treated as                for administering programs authorized          accommodation, including:
‘‘recipients,’’ and are subject to the       under the Wagner-Peyser Act, and                  (1) The number of persons aided,
nondiscrimination and equal                  unemployment insurance programs                benefited, served, or trained by, or
opportunity requirements of this part, to    authorized under Title III of the Social       employed at, the facility or facilities,
the extent that they participate in the      Security Act.                                  and
One-Stop delivery system.                       State Programs means programs                 (2) The effect the accommodation
   Registrant means the same as              financially assisted in whole or in part       would have on the expenses and
‘‘applicant’’ for purposes of this part.     under Title I of WIA in which either:          resources of the facility or facilities;
See also the definitions of ‘‘application       (1) The Governor and/or State                 (C) The overall financial resources of
for benefits,’’ ‘‘eligible applicant/        receives and disburses the grant to or         the recipient, including:
registrant,’’ ‘‘participant,’’               through LWIA grant recipients; or                (1) The overall size of the recipient,
61722         Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

   (2) The number of persons aided,           § 37.5 What forms of discrimination are         of a planning or advisory body that is
benefited, served, trained, or employed       prohibited by this part?                        an integral part of the WIA Title I—
by the recipient, and                            No individual in the United States           funded program or activity; or
   (3) The number, type and location of       may, on the ground of race, color,                 (8) Otherwise limit on a prohibited
the recipient’s facilities;                   religion, sex, national origin, age,            ground an individual in enjoyment of
   (D) The type of operation or               disability, political affiliation or belief,    any right, privilege, advantage, or
operations of the recipient, including:       and for beneficiaries only, citizenship or      opportunity enjoyed by others receiving
                                              participation in any WIA Title I—               any WIA Title I—financially assisted
   (1) The geographic separateness and
                                              financially assisted program or activity,       aid, benefits, services, or training.
administrative or fiscal relationship of                                                         (c) A recipient must not, directly or
the facility or facilities in question to     be excluded from participation in,
                                              denied the benefits of, subjected to            through contractual, licensing, or other
the recipient, and                                                                            arrangements:
                                              discrimination under, or denied
   (2) Where the individual is seeking an     employment in the administration of or             (1) Aid or perpetuate discrimination
employment-related accommodation,             in connection with any WIA Title I—             by providing significant assistance to an
the composition, structure and                funded program or activity.                     agency, organization, or person that
functions of the recipient’s workforce;                                                       discriminates on a prohibited ground in
and                                           § 37.6 What specific discriminatory             providing any aid, benefits, services, or
   (E) The impact of the accommodation        actions, based on prohibited grounds other      training to registrants, applicants or
upon the operation of the facility or         than disability, are prohibited by this part?   participants in a WIA Title I—funded
facilities, including:                           (a) For the purposes of this section,        program or activity; or
   (1) The impact on the ability of other     ‘‘prohibited ground’’ means race, color,           (2) Refuse to accommodate an
participants to receive aid, benefits,        religion, sex, national origin, age,            individual’s religious practices or
services, or training, or of other            political affiliation or belief, and for        beliefs, unless to do so would result in
employees to perform their duties, and        beneficiaries only, citizenship or              undue hardship, as defined in section
   (2) The impact on the facility’s ability   participation in any WIA Title I—               37.4.
                                              financially assisted program or activity.          (d) (1) In making any of the
to carry out its mission.
                                                 (b) A recipient must not, directly or        determinations listed in paragraph (d)(2)
   (2) Religious accommodation For            through contractual, licensing, or other        of this section, either directly or through
purposes of religious accommodation           arrangements, on a prohibited ground:           contractual, licensing, or other
only, ‘‘undue hardship’’ means any               (1) Deny an individual any aid,              arrangements, a recipient must not use
additional, unusual costs, other than de      benefits, services, or training provided        standards, procedures, criteria, or
minimis costs, that a particular              under a WIA Title I—funded program or           administrative methods that have any of
accommodation would impose upon a             activity;                                       the following purposes or effects:
recipient. See Trans World Airlines, Inc.        (2) Provide to an individual any aid,           (i) Subjecting individuals to
v. Hardison, 432 U.S. 63, 81, 84 (1977).      benefits, services, or training that is         discrimination on a prohibited ground;
   WIA means the Workforce Investment         different, or is provided in a different        or
Act of 1998, Pub. L. 105–220.                 manner, from that provided to others               (ii) Defeating or substantially
   WIA Title I financial assistance See       under a WIA Title I—funded program or           impairing, on a prohibited ground,
the definition of ‘‘Federal financial         activity;                                       accomplishment of the objectives of
assistance under Title I of WIA’’ in this        (3) Subject an individual to                 either:
section.                                      segregation or separate treatment in any           (A) The WIA Title I—funded program
   WIA Title I-funded program or              matter related to his or her receipt of         or activity; or
activity means:                               any aid, benefits, services, or training           (B) the nondiscrimination and equal
                                              under a WIA Title I—funded program or           opportunity provisions of WIA or this
   (1) A program or activity, operated by                                                     part.
a recipient and funded, in whole or in        activity;
                                                 (4) Restrict an individual in any way           (2) The determinations to which this
part, under Title I of WIA, that provides                                                     paragraph applies include, but are not
either:                                       in the enjoyment of any advantage or
                                              privilege enjoyed by others receiving           limited to:
   (i) Any aid, benefits, services, or                                                           (i) The types of aid, benefits, services,
training to individuals; or                   any aid, benefits, services, or training
                                                                                              training, or facilities that will be
                                              under a WIA Title I—funded program or
   (ii) Facilities for furnishing any aid,                                                    provided under any WIA Title I—
                                              activity;
benefits, services, or training to                                                            funded program or activity;
                                                 (5) Treat an individual differently
individuals;                                                                                     (ii) The class of individuals to whom
                                              from others in determining whether he
   (2) Aid, benefits, services, or training                                                   such aid, benefits, services, training, or
                                              or she satisfies any admission,
provided in facilities that are being or                                                      facilities will be provided; or
                                              enrollment, eligibility, membership, or            (iii) The situations in which such aid,
were constructed with the aid of Federal      other requirement or condition for any
financial assistance under WIA Title I;                                                       benefits, services, training, or facilities
                                              aid, benefits, services, or training            will be provided.
or                                            provided under a WIA Title I—funded                (3) Paragraph (d) of this section
   (3) Aid, benefits, services, or training   program or activity;                            applies to the administration of WIA
provided with the aid of any non-WIA             (6) Deny or limit an individual with         Title I—funded programs or activities
Title I funds, property, or other             respect to any opportunity to participate       providing aid, benefits, services,
resources that are required to be             in a WIA Title I—funded program or              training, or facilities in any manner,
expended or made available in order for       activity, or afford him or her an               including, but not limited to:
the program to meet matching                  opportunity to do so that is different             (i) Outreach and recruitment;
requirements or other conditions which        from the opportunity afforded others               (ii) Registration;
must be met in order to receive the WIA       under a WIA Title I—funded program or              (iii) Counseling and guidance;
Title I financial assistance.                 activity;                                          (iv) Testing;
   See the definition of ‘‘aid, benefits,        (7) Deny an individual the                      (v) Selection, placement,
services, or training’’ in this section.      opportunity to participate as a member          appointment, and referral;
              Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                            61723

   (vi) Training; and                             (1) Deny a qualified individual with a      accomplishment of the objectives of the
   (vii) Promotion and retention.              disability the opportunity to participate      WIA Title I—financially assisted
   (4) A recipient must not take any of        in or benefit from the aid, benefits,          program or activity with respect to
the prohibited actions listed in               services, or training;                         individuals with disabilities; or
paragraph (d) of this section either              (2) Afford a qualified individual with         (3) That perpetuate the discrimination
directly or through contractual,               a disability an opportunity to participate     of another entity if both entities are
licensing, or other arrangements.              in or benefit from the aid, benefits,          subject to common administrative
   (e) In determining the site or location     services, or training that is not equal to     control or are agencies of the same state.
of facilities, a grant applicant or            that afforded others;                             (f) In determining the site or location
recipient must not make selections that           (3) Provide a qualified individual          of facilities, a grant applicant or
have any of the following purposes or          with a disability with an aid, benefit,        recipient must not make selections that
effects:                                       service or training that is not as effective   have any of the following purposes or
   (1) On a prohibited ground:                 in affording equal opportunity to obtain       effects:
   (i) Excluding individuals from a WIA        the same result, to gain the same benefit,        (1) On the basis of disability:
Title I—financially assisted program or        or to reach the same level of                     (i) Excluding qualified individuals
activity;                                      achievement as that provided to others;        from a WIA Title I-financially assisted
   (ii) Denying them the benefits of such         (4) Provide different, segregated, or       program or activity;
a program or activity; or                      separate aid, benefits, services, or              (ii) Denying them the benefits of such
   (iii) Subjecting them to                    training to individuals with disabilities,     a program or activity; or
discrimination; or                             or to any class of individuals with               (iii) Subjecting them to
   (2) Defeating or substantially              disabilities, unless such action is            discrimination; or
impairing the accomplishment of the            necessary to provide qualified                    (2) Defeating or substantially
objectives of either:                          individuals with disabilities with aid,        impairing the accomplishment of the
   (i) The WIA Title I—financially             benefits, services or training that are as     disability-related objectives of either:
assisted program or activity; or               effective as those provided to others;            (i) The WIA Title I-financially assisted
   (ii) The nondiscrimination and equal           (5) Deny a qualified individual with a      program or activity; or
opportunity provisions of WIA or this          disability the opportunity to participate         (ii) The nondiscrimination and equal
part.                                          as a member of planning or advisory            opportunity provisions of WIA or this
   (f) (1) A recipient must not permit                                                        part.
                                               boards; or
participants to be employed or trained            (6) Otherwise limit a qualified                (g) A recipient, in the selection of
in sectarian activities.                       individual with a disability in                contractors, must not use criteria that
   (2) This paragraph applies to any                                                          subject qualified individuals with
                                               enjoyment of any right, privilege,
facility that is, or will be, primarily used                                                  disabilities to discrimination on the
                                               advantage, or opportunity enjoyed by
or inherently devoted either:                                                                 basis of disability.
                                               others receiving any aid, benefit, service
   (A) For sectarian instruction; or                                                             (h) A recipient must not administer a
   (B) As a place of worship,                  or training.
                                                  (b) A recipient must not, directly or       licensing or certification program in a
   (ii) A recipient must not permit                                                           manner that subjects qualified
participants to be employed or trained         through contractual, licensing, or other
                                               arrangements, aid or perpetuate                individuals with disabilities to
in any way to:                                                                                discrimination on the basis of disability,
   (A) Construct any part of such a            discrimination against qualified
                                               individuals with disabilities by               nor may a recipient establish
facility,                                                                                     requirements for the programs or
   (B) Operate any part of such a facility,    providing significant assistance to an
                                               agency, organization, or person that           activities of licensees or certified
or
   (C) Maintain any part of that facility.     discriminates on the basis of disability       entities that subject qualified
   (3) If a facility is not primarily or       in providing any aid, benefits, services       individuals with disabilities to
inherently devoted to sectarian                or training to registrants, applicants, or     discrimination on the basis of disability.
instruction or religious worship, a            participants.                                  The programs or activities of entities
recipient may permit the use of WIA               (c) A recipient must not deny a             that are licensed or certified by a
Title I funds to employ participants to        qualified individual with a disability         recipient are not, themselves, covered
maintain the facility, if the organization     the opportunity to participate in WIA          by this part.
that operates the facility is part of a        Title I—financially assisted programs or          (i) A recipient must not impose or
program or activity that provides              activities despite the existence of            apply eligibility criteria that screen out
services to participants.                      permissibly separate or different              or tend to screen out an individual with
   (g) The exclusion of an individual          programs or activities.                        a disability or any class of individuals
from programs or activities limited by            (d) A recipient must administer WIA         with disabilities from fully and equally
Federal statute or Executive Order to a        Title I—financially assisted programs          enjoying any aid, benefit, service,
certain class or classes of individuals of     and activities in the most integrated          training, program, or activity, unless
which the individual in question is not        setting appropriate to the needs of            such criteria can be shown to be
a member is not prohibited by this part.       qualified individuals with disabilities.       necessary for the provision of the aid,
                                                  (e) A recipient must not, directly or       benefit, service, training, program, or
§ 37.7 What specific discriminatory            through contractual, licensing, or other       activity being offered.
actions based on disability are prohibited     arrangements, use standards,                      (j) Nothing in this part prohibits a
by this part?                                  procedures, criteria, or administrative        recipient from providing aid, benefits,
  (a) In providing any aid, benefits,          methods:                                       services, training, or advantages to
services, or training under a WIA Title           (1) That have the purpose or effect of      individuals with disabilities, or to a
I—financially assisted program or              subjecting qualified individuals with          particular class of individuals with
activity, a recipient must not, directly or    disabilities to discrimination on the          disabilities, beyond those required by
through contractual, licensing, or other       ground of disability;                          this part.
arrangements, on the ground of                    (2) That have the purpose or effect of         (k) A recipient must not place a
disability:                                    defeating or substantially impairing           surcharge on a particular individual
61724         Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

with a disability, or any group of               (1) In those circumstances where a        § 37.9 What are a recipient’s
individuals with disabilities, to cover       recipient believes that the proposed         responsibilities to communicate with
the costs of measures, such as the            accommodation would cause undue              individuals with disabilities?
provision of auxiliary aids or program        hardship, the recipient has the burden          (a) Recipients must take appropriate
accessibility, that are required to           of proving that the accommodation            steps to ensure that communications
provide that individual or group with         would result in such hardship.               with beneficiaries, registrants,
the nondiscriminatory treatment                                                            applicants, eligible applicants/
                                                 (2) The recipient must make the           registrants, participants, applicants for
required by WIA Title I or this part.
                                              decision that the accommodation would        employment, employees, and members
   (l) A recipient must not exclude, or
                                              cause such hardship only after               of the public who are individuals with
otherwise deny equal aid, benefits,
services, training, programs, or activities   considering all factors listed in the        disabilities, are as effective as
to, an individual or entity because of the    definition of ‘‘undue hardship’’ in          communications with others.
known disability of an individual with        § 37.4. The decision must be                    (b) A recipient must furnish
whom the individual or entity is known        accompanied by a written statement of        appropriate auxiliary aids or services
to have a relationship or association.        the recipient’s reasons for reaching that    where necessary to afford individuals
   (m) The exclusion of an individual         conclusion. The recipient must provide       with disabilities an equal opportunity to
without a disability from the benefits of     a copy of the statement of reasons to the    participate in, and enjoy the benefits of,
a program limited by Federal statute or       individual or individuals who requested      the WIA Title I—financially assisted
Executive Order to individuals with           the accommodation.                           program or activity. In determining
disabilities, or the exclusion of a              (3) If a requested accommodation          what type of auxiliary aid or service is
specific class of individuals with            would result in undue hardship, the          appropriate and necessary, such
disabilities from a program limited by        recipient must take any other action that    recipient must give primary
Federal statute or Executive Order to a                                                    consideration to the requests of the
                                              would not result in such hardship, but
different class of individuals with                                                        individual with a disability.
                                              would nevertheless ensure that, to the          (c) Where a recipient communicates
disabilities, is not prohibited by this       maximum extent possible, individuals
part.                                                                                      by telephone with beneficiaries,
                                              with disabilities receive the aid,           registrants, applicants, eligible
   (n) This part does not require a           benefits, services, training, or
recipient to provide any of the following                                                  applicants/registrants, participants,
                                              employment provided by the recipient.        applicants for employment, and/or
to individuals with disabilities:
   (1) Personal devices, such as                 (b) A recipient must also make            employees, the recipient must use
wheelchairs;                                  reasonable modifications in policies,        telecommunications devices for
   (2) Individually prescribed devices,       practices, or procedures when the            individuals with hearing impairments
such as prescription eyeglasses or            modifications are necessary to avoid         (TDDs/TTYs), or equally effective
hearing aids;                                 discrimination on the basis of disability,   communications systems, such as
   (3) Readers for personal use or study;     unless making the modifications would        telephone relay services.
or                                            fundamentally alter the nature of the           (d) A recipient must ensure that
   (4) Services of a personal nature,         service, program, or activity. See the       interested individuals, including
including assistance in eating, toileting,    definition of ‘‘fundamental alteration’’     individuals with visual or hearing
or dressing.                                  in § 37.4 of this part.                      impairments, can obtain information as
   (o)(1) Nothing in this part requires an                                                 to the existence and location of
                                                 (1) In those circumstances where a
individual with a disability to accept an                                                  accessible services, activities, and
                                              recipient believes that the proposed         facilities.
accommodation, aid, benefit, service,         modification would fundamentally alter
training, or opportunity provided under                                                       (e)(1) A recipient must provide
                                              the program, activity, or service, the       signage at a primary entrance to each of
WIA Title I or this part that such            recipient has the burden of proving that
individual chooses not to accept.                                                          its inaccessible facilities, directing users
                                              the modification would result in such        to a location at which they can obtain
   (2) Nothing in this part authorizes the    an alteration.
representative or guardian of an                                                           information about accessible facilities.
individual with a disability to decline          (2) The recipient must make the           The signage provided must meet the
food, water, medical treatment, or            decision that the modification would         most current standards prescribed by
medical services for that individual.         result in such an alteration only after      the General Services Administration
                                              considering all factors listed in the        under the Architectural Barriers Act at
§ 37.8 What are a recipient’s                 definition of ‘‘fundamental alteration’’     41 CFR 101–19.6. Alternative standards
responsibilities regarding reasonable         in § 37.4. The decision must be              for the signage may be adopted when it
accommodation and reasonable                  accompanied by a written statement of        is clearly evident that such alternative
modification for individuals with                                                          standards provide equivalent or greater
disabilities?                                 the recipient’s reasons for reaching that
                                              conclusion. The recipient must provide       access to the information.
  (a) With regard to aid, benefits,                                                           (2) The international symbol for
                                              a copy of the statement of reasons to the
services, training, and employment, a                                                      accessibility must be used at each
                                              individual or individuals who requested
recipient must provide reasonable                                                          primary entrance of an accessible
                                              the modification.
accommodation to qualified individuals                                                     facility.
with disabilities who are applicants,            (3) If a modification would result in        (f) This section does not require a
registrants, eligible applicants/             a fundamental alteration, the recipient      recipient to take any action that it can
registrants, participants, employees, or      must take any other action that would        demonstrate would result in a
applicants for employment, unless             not result in such an alteration, but        fundamental alteration in the nature of
providing the accommodation would             would nevertheless ensure that, to the       a service, program, or activity.
cause undue hardship. See the                 maximum extent possible, individuals            (1) In those circumstances where a
definitions of ‘‘reasonable                   with disabilities receive the aid,           recipient believes that the proposed
accommodation’’ and ‘‘undue hardship’’        benefits, services, training, or             action would fundamentally alter the
in § 37.4 of this part.                       employment provided by the recipient.        WIA Title I—financially assisted
              Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                             61725

program, activity, or service, the             regulatory sections as well as the            § 37.13 Who is responsible for providing
recipient has the burden of proving that       requirements listed in this part.             interpretations of this part?
compliance with this section would               (e) Recipients that are also employers,       The Director will make any rulings
result in such an alteration.                  employment agencies, or other entities        under, or interpretations of, the
  (2) The decision that compliance             covered by Titles I and II of the ADA         nondiscrimination and equal
would result in such an alteration must        should be aware of obligations imposed        opportunity provisions of WIA or this
be made by the recipient after                 by those titles. See 29 CFR part 1630         part.
considering all resources available for        and 28 CFR part 35.
use in the funding and operation of the                                                      § 37.14 Under what circumstances may the
                                                 (f) Similarly, recipients that are also
                                                                                             Secretary delegate the responsibilities of
WIA Title I—financially assisted               employers covered by the anti-                this part?
program, activity, or service, and must        discrimination provision of the
be accompanied by a written statement          Immigration and Nationality Act should          (a) The Secretary may from time to
of the reasons for reaching that               be aware of the obligations imposed by        time assign to officials of other
conclusion.                                    that provision. See 8 U.S.C. 1324b, as        departments or agencies of the
  (3) If an action required to comply          amended.                                      Government (with the consent of such
with this section would result in the            (g) This rule does not preempt              department or agency) responsibilities
fundamental alteration described in            consistent State and local requirements.      in connection with the effectuation of
paragraph (f)(1) of this section, the                                                        the nondiscrimination and equal
recipient must take any other action that      § 37.11 To what extent are intimidation and   opportunity provisions of WIA and this
                                               retaliation prohibited by this part?          part (other than responsibility for final
would not result in such an alteration,
but would nevertheless ensure that, to           (a) A recipient must not discharge,         decisions under § 37.112), including the
the maximum extent possible,                   intimidate, retaliate, threaten, coerce or    achievement of effective coordination
individuals with disabilities receive the      discriminate against any individual           and maximum uniformity within the
benefits or services provided by the           because the individual has:                   Department and within the executive
recipient.                                       (1) Filed a complaint alleging a            branch of the Government in the
                                               violation of Section 188 of WIA or this       application of the nondiscrimination
§ 37.10 To what extent are employment          part;                                         and equal opportunity provisions of
practices covered by this part?                                                              WIA or this part to similar programs and
                                                 (2) Opposed a practice prohibited by
   (a) Discrimination on the ground of         the nondiscrimination and equal               similar situations.
race, color, religion, sex, national origin,   opportunity provisions of WIA or this           (b) Any action taken, determination
age, disability, or political affiliation or   part;                                         made, or requirement imposed by an
belief is prohibited in employment               (3) Furnished information to, or            official of another department or agency
practices in the administration of, or in      assisted or participated in any manner        acting under an assignment of
connection with:                               in, an investigation, review, hearing, or     responsibility under this section has the
   (1) Any WIA Title I-financially             any other activity related to any of the      same effect as if the action had been
assisted program or activity; and              following:                                    taken by the Director.
   (2) Any program or activity that is           (i) Administration of the                   § 37.15 What are the Director’s
part of the One-Stop delivery system           nondiscrimination and equal                   responsibilities to coordinate with other
and is operated by a One-Stop partner          opportunity provisions of WIA or this         civil rights agencies?
listed in Section 121(b) of WIA, to the        part;
extent that the program or activity is                                                          (a) Whenever a compliance review or
                                                 (ii) Exercise of authority under those      complaint investigation under this part
being conducted as part of the One-Stop        provisions; or
delivery system.                                                                             reveals possible violation of one or more
                                                 (iii) Exercise of privilege secured by      of the laws listed in paragraph (b) of this
   (b) Employee selection procedures. In       those provisions; or                          section, or of any other Federal civil
implementing this section, a recipient           (4) Otherwise exercised any rights and      rights law, that is not also a violation of
must comply with the Uniform                   privileges under the nondiscrimination        the nondiscrimination and equal
Guidelines on Employee Selection               and equal opportunity provisions of           opportunity provisions of WIA or this
Procedures, 41 CFR part 60–3.                  WIA or this part.                             part, the Director must attempt to notify
   (c) Standards for employment-related          (b) The sanctions and penalties             the appropriate agency and provide it
investigations and reviews. In any             contained in Section 188(b) of WIA or         with all relevant documents and
investigation or compliance review, the        this part may be imposed against any          information.
Director must consider Equal                   recipient that engages in any such
Employment Opportunity Commission                                                               (b) This section applies to the
                                               retaliation or intimidation, or fails to      following:
(EEOC) regulations, guidance and               take appropriate steps to prevent such
appropriate case law in determining                                                             (1) Executive Order 11246, as
                                               activity.                                     amended;
whether a recipient has engaged in an
unlawful employment practice.                  § 37.12 What Department of Labor office is       (2) Section 503 of the Rehabilitation
   (d) As provided in § 37.3(b) of this        responsible for administering this part?      Act of 1973, as amended (29 U.S.C.
part, 29 CFR part 32, subparts B and C            The Civil Rights Center (CRC), in the      793);
and Appendix A, which implement the            Office of the Assistant Secretary for            (3) The affirmative action provisions
requirements of Section 504 pertaining         Administration and Management, is             of the Vietnam Era Veterans’
to employment practices and                    responsible for administering and             Readjustment Assistance Act of 1974, as
employment-related training, program           enforcing the nondiscrimination and           amended (38 U.S.C. 4212);
accessibility, and reasonable                  equal opportunity provisions of WIA              (4) The Equal Pay Act of 1963, as
accommodation, have been incorporated          and this part, and for developing and         amended (29 U.S.C. 206d);
into this part by reference. Therefore,        issuing policies, standards, guidance,           (5) Title VII of the Civil Rights Act of
recipients must comply with the                and procedures for effecting                  1964, as amended (42 U.S.C. 2000e et
requirements set forth in those                compliance.                                   seq.);
61726          Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

  (6) The Age Discrimination in                   Section 188 of the Workforce Investment         § 37.21 How long will the recipient’s
Employment Act of 1967, as amended             Act of 1998 (WIA), which prohibits                 obligation under the assurance last, and
(29 U.S.C. 621);                               discrimination against all individuals in the      how broad is the obligation?
                                               United States on the basis of race, color,            (a) Where the WIA Title I financial
  (7) The Americans with Disabilities          religion, sex, national origin, age, disability,
Act of 1990, as amended (42 U.S.C.                                                                assistance is intended to provide, or is
                                               political affiliation or belief, and against
12101 et seq.);                                beneficiaries on the basis of either               in the form of, either personal property,
  (8) The anti-discrimination provision        citizenship/status as a lawfully admitted          real property, structures on real
of the Immigration and Nationality Act,        immigrant authorized to work in the United         property, or interest in any such
as amended (8 U.S.C. 1324b); and               States or participation in any WIA Title I—        property or structures, the assurance
  (9) Any other Federal civil rights law.      financially assisted program or activity;          will obligate the recipient, or (in the
                                                  Title VI of the Civil Rights Act of 1964, as    case of a subsequent transfer) the
§ 37.16 What is this part’s effect on a        amended, which prohibits discrimination on         transferee, for the longer of:
recipient’s obligations under other laws,      the bases of race, color and national origin;         (1) The period during which the
and what limitations apply?                       Section 504 of the Rehabilitation Act of
                                                                                                  property is used either:
                                               1973, as amended, which prohibits
   (a) Effect of State or local law or other   discrimination against qualified individuals          (i) For a purpose for which WIA Title
requirements. The obligation to comply         with disabilities;                                 I financial assistance is extended; or
with the nondiscrimination and equal              The Age Discrimination Act of 1975, as             (ii) For another purpose involving the
opportunity provisions of WIA or this          amended, which prohibits discrimination on         provision of similar services or benefits;
part are not excused or reduced by any         the basis of age; and                              or
State or local law or other requirement           Title IX of the Education Amendments of            (2) The period during which either:
that, on a prohibited ground, prohibits        1972, as amended, which prohibits                     (i) The recipient retains ownership or
or limits an individual’s eligibility to       discrimination on the basis of sex in              possession of the property; or
                                               educational programs.                                 (ii) The transferee retains ownership
receive aid, benefits, services, or               The grant applicant also assures that it will
training; to participate in any WIA Title                                                         or possession of the property without
                                               comply with 29 CFR part 37 and all other
I—financially assisted program or              regulations implementing the laws listed           compensating the Departmental
activity; to be employed by any                above. This assurance applies to the grant         grantmaking agency for the fair market
recipient; or to practice any occupation       applicant’s operation of the WIA Title I-          value of that ownership or possession.
or profession.                                 financially assisted program or activity, and         (b) In all other cases, the assurance
   (b) Effect of private organization rules.   to all agreements the grant applicant makes        will obligate the recipient for the period
The obligation to comply with the              to carry out the WIA Title I-financially           during which WIA Title I financial
                                               assisted program or activity. The grant            assistance is extended.
nondiscrimination and equal                    applicant understands that the United States
opportunity provisions of WIA and this         has the right to seek judicial enforcement of      § 37.22 How must covenants be used in
part is not excused or reduced by any          this assurance.                                    connection with this part?
rule or regulation of any private                                                                    (a) Where WIA Title I financial
                                                  (2) The assurance is considered
organization, club, league or association                                                         assistance is provided in the form of a
                                               incorporated by operation of law in the
that, on a prohibited ground, prohibits                                                           transfer of real property, structures, or
                                               grant, cooperative agreement, contract
or limits an individual’s eligibility to                                                          improvements on real property or
                                               or other arrangement whereby Federal
participate in any WIA Title I—                                                                   structures, or interests in real property
                                               financial assistance under Title I of the
financially assisted program or activity                                                          or structures, the instrument effecting or
                                               WIA is made available, whether or not
to which this part applies.                                                                       recording the transfer must contain a
                                               it is physically incorporated in such
   (c) Effect of possible future exclusion                                                        covenant assuring nondiscrimination
                                               document and whether or not there is a
from employment opportunities. A                                                                  and equal opportunity for the period
                                               written agreement between the
recipient must not exclude any                                                                    described in § 37.21.
                                               Department and the recipient, between
individual from, or restrict any                                                                     (b) Where no Federal transfer of real
                                               the Department and the Governor,
individual’s participation in, any                                                                property or interest therein from the
                                               between the Governor and the recipient,
program or activity based on the                                                                  Federal Government is involved, but
                                               or between recipients. The assurance
recipient’s belief or concern that the                                                            real property or an interest therein is
                                               also may be incorporated by reference in
individual will encounter limited future                                                          acquired or improved under a program
                                               such grants, cooperative agreements,
employment opportunities because of                                                               of WIA Title I financial assistance, the
                                               contracts, or other arrangements.
his or her race, color, religion, sex,            (b) Continuing State programs. Each             recipient must include the covenant
national origin, age, disability, political    Strategic Five-Year State Plan submitted           described in paragraph (a) of this
affiliation or belief, or citizenship.         by a State to carry out a continuing WIA           section in the instrument effecting or
Subpart B—Recordkeeping and Other              Title I-financially assisted program or            recording any subsequent transfer of
Affirmative Obligations of Recipients          activity must provide a statement that             such property.
                                               the WIA Title I-financially assisted                  (c) When the property is obtained
Assurances                                                                                        from the Federal Government, the
                                               program or activity is (or, in the case of
§ 37.20 What is a grant applicant’s            a new WIA Title I-financially assisted             covenant described in paragraph (a) of
obligation to provide a written assurance?     program or activity, will be) conducted            this section also may include a
  (a) (1) Each application for financial       in compliance with the                             condition coupled with a right of
assistance under Title I of WIA, as            nondiscrimination and equal                        reverter to the Department in the event
defined in § 37.4, must include the            opportunity provisions of WIA and this             of a breach of the covenant.
following assurance:                           part, as a condition to the approval of            Equal Opportunity Officers
                                               the Five-Year Plan and the extension of
  As a condition to the award of financial
assistance from the Department of Labor
                                               any WIA Title I financial assistance               § 37.23 Who must designate an Equal
                                               under the Plan. The State also must                Opportunity Officer?
under Title I of WIA, the grant applicant
assures that it will comply fully with the     certify that it has developed and                    Every recipient must designate an
nondiscrimination and equal opportunity        maintains a Methods of Administration              Equal Opportunity Officer (‘‘EO
provisions of the following laws:              under § 37.54.                                     Officer’’), except small recipients and
              Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                                61727

service providers, as defined in § 37.4.          (a) Making the Equal Opportunity               (6) Members of the public, including
The responsibilities of small recipients       Officer’s name, and his or her position        those with impaired vision or hearing.
and service providers are described in         title, address, and telephone number              (b) As provided in § 37.9, the
§§ 37.27 and 37.28.                            (voice and TDD/TTY) public;                    recipient must take appropriate steps to
                                                  (b) Ensuring that the EO Officer’s          ensure that communications with
§ 37.24 Who is eligible to serve as an                                                        individuals with disabilities are as
                                               identity and contact information
Equal Opportunity Officer?
                                               appears on all internal and external           effective as communications with
  A senior-level employee of the               communications about the recipient’s           others.
recipient should be appointed as the           nondiscrimination and equal
recipient’s Equal Opportunity Officer.         opportunity programs;
                                                                                              § 37.30 What specific wording must the
Depending upon the size of the                                                                notice contain?
                                                  (c) Assigning sufficient staff and
recipient, the size of the recipient’s WIA     resources to the Equal Opportunity               The notice must contain the following
Title I-financially assisted programs or       Officer, and providing him or her with         specific wording:
activities, and the number of applicants,      the necessary support of top                   Equal Opportunity Is the Law
registrants, and participants served by        management, to ensure compliance with             It is against the law for this recipient of
the recipient, the EO Officer may, or          the nondiscrimination and equal                Federal financial assistance to discriminate
may not, be assigned other duties.             opportunity provisions of WIA and this         on the following bases:
However, he or she must not have other         part; and                                         Against any individual in the United
responsibilities or activities that create a      (d) Ensuring that the EO Officer and        States, on the basis of race, color, religion,
conflict, or the appearance of a conflict,     his/her staff are afforded the                 sex, national origin, age, disability, political
with the responsibilities of an EO                                                            affiliation or belief; and
                                               opportunity to receive the training               Against any beneficiary of programs
Officer.                                       necessary and appropriate to maintain          financially assisted under Title I of the
§ 37.25 What are the responsibilities of an    competency.                                    Workforce Investment Act of 1998 (WIA), on
Equal Opportunity Officer?                                                                    the basis of the beneficiary’s citizenship/
                                               § 37.27 What are the obligations of small      status as a lawfully admitted immigrant
   An Equal Opportunity Officer is             recipients regarding Equal Opportunity
responsible for coordinating a                                                                authorized to work in the United States, or
                                               Officers?                                      his or her participation in any WIA Title I-
recipient’s obligations under this part.         Although small recipients do not need        financially assisted program or activity.
Those responsibilities include, but are        to designate Equal Opportunity Officers           The recipient must not discriminate in any
not limited to:                                who have the full range of                     of the following areas:
   (a) Serving as the recipient’s liaison      responsibilities listed above, they must          Deciding who will be admitted, or have
with CRC;                                      designate an individual who will be            access, to any WIA Title I-financially assisted
   (b) Monitoring and investigating the                                                       program or activity;
                                               responsible for developing and
recipient’s activities, and the activities                                                       Providing opportunities in, or treating any
                                               publishing of complaint procedures,            person with regard to, such a program or
of the entities that receive WIA Title I
                                               and the processing of complaints, as           activity; or
funds from the recipient, to make sure
                                               explained in §§ 37.76 through 37.79.              Making employment decisions in the
that the recipient and its subrecipients
                                                                                              administration of, or in connection with,
are not violating their                        § 37.28 What are the obligations of service    such a program or activity.
nondiscrimination and equal                    providers regarding Equal Opportunity
opportunity obligations under WIA Title        Officers?                                      What to Do If You Believe You Have
I and this part;                                 Service providers, as defined in             Experienced Discrimination
   (c) Reviewing the recipient’s written       § 37.4, are not required to designate an          If you think that you have been subjected
policies to make sure that those policies      Equal Opportunity Officer. The                 to discrimination under a WIA Title I-
are nondiscriminatory;                         obligation for ensuring service provider       financially assisted program or
   (d) Developing and publishing the           compliance with the nondiscrimination             Activity, you may file a complaint
recipient’s procedures for processing          and equal opportunity provisions of            within 180 days from the date of the
discrimination complaints under                WIA and this part rests with the               alleged violation with either:
§§ 37.76 through 37.79, and making sure                                                          The recipient’s Equal Opportunity Officer
                                               Governor or LWIA grant recipient, as           (or the person whom the recipient has
that those procedures are followed;            specified in the State’s Methods of
   (e) Reporting directly to the                                                              designated for this purpose); or
                                               Administration.                                   The Director, Civil Rights Center (CRC),
appropriate official (including, but not                                                      U.S. Department of Labor, 200 Constitution
limited to, the State WIA Director,            Notice and Communication
                                                                                              Avenue NW, Room N–4123, Washington, DC
Governor’s WIA Liaison, Job Corps              § 37.29 What are a recipient’s obligations     20210.
Center Director, SESA Administrator, or        to disseminate its equal opportunity policy?      If you file your complaint with the
LWIA grant recipient) about equal                                                             recipient, you must wait either until the
                                                  (a) A recipient must provide initial
opportunity matters;                                                                          recipient issues a written Notice of Final
   (f) Undergoing training (at the             and continuing notice that it does not         Action, or until 90 days have passed
recipient’s expense) to maintain               discriminate on any prohibited ground.         (whichever is sooner), before filing with the
competency, if the Director requires him       This notice must be provided to:               Civil Rights Center (see address above).
or her, and/or his or her staff, to do so;        (1) Registrants, applicants, and               If the recipient does not give you a written
and                                            eligible applicants/registrants;               Notice of Final Action within 90 days of the
                                                  (2) Participants;                           day on which you filed your complaint, you
   (g) If applicable, overseeing the                                                          do not have to wait for the recipient to issue
development and implementation of the             (3) Applicants for employment and
                                               employees;                                     that Notice before filing a complaint with
recipient’s Methods of Administration                                                         CRC. However, you must file your CRC
under § 37.54.                                    (4) Unions or professional
                                                                                              complaint within 30 days of the 90-day
                                               organizations that hold collective             deadline (in other words, within 120 days
§ 37.26 What are a recipient’s obligations     bargaining or professional agreements          after the day on which you filed your
relating to the Equal Opportunity Officer?     with the recipient;                            complaint with the recipient).
  A recipient has the following                   (5) Subrecipients that receive WIA             If the recipient does give you a written
obligations:                                   Title I funds from the recipient; and          Notice of Final Action on your complaint,
61728          Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

but you are dissatisfied with the decision or   TDD/TTY or relay service used by the         § 37.36 What responsibilities does a
resolution, you may file a complaint with       recipient, as required by § 37.9(c).         recipient have to communicate information
CRC. You must file your CRC complaint                                                        during orientations?
within 30 days of the date on which you            (b) Recipients that publish or
                                                                                                During each presentation to orient
received the Notice of Final Action.            broadcast program information in the         new participants, new employees, and/
                                                news media must ensure that such             or the general public to its WIA Title I-
§ 37.31 Where must the notice required by       publications and broadcasts state that
§§ 37.29 and 37.30 be published?                                                             financially assisted program or activity,
                                                the WIA Title I-financially assisted         a recipient must include a discussion of
   (a) At a minimum, the notice required        program or activity in question is an        rights under the nondiscrimination and
by §§ 37.29 and 37.30 must be:                  equal opportunity employer/program (or       equal opportunity provisions of WIA
   (1) Posted prominently, in reasonable        otherwise indicate that discrimination       and this part, including the right to file
numbers and places;                             in the WIA Title I-financially assisted      a complaint of discrimination with the
   (2) Disseminated in internal                 program or activity is prohibited by         recipient or the Director.
memoranda and other written or                  Federal law), and indicate that auxiliary
electronic communications;                      aids and services are available upon         Data and Information Collection and
   (3) Included in handbooks or                 request to individuals with disabilities.    Maintenance
manuals; and
                                                   (c) A recipient must not communicate      § 37.37 What are a recipient’s
   (4) Made available to each participant,                                                   responsibilities to collect and maintain data
and made part of each participant’s file.       any information that suggests, by text or
                                                illustration, that the recipient treats      and other information?
   (b) The notice must be provided in                                                           (a) The Director will not require
appropriate formats to individuals with         beneficiaries, registrants, applicants,
                                                participants, employees or applicants        submission of data that can be obtained
visual impairments. Where notice has                                                         from existing reporting requirements or
been given in an alternate format to a          for employment differently on any
                                                prohibited ground specified in § 37.5,       sources, including those of other
participant with a visual impairment, a                                                      agencies, if the source is known and
record that such notice has been given          except as such treatment is otherwise
                                                permitted under Federal law or this          available to the Director.
must be made a part of the participant’s                                                        (b)(1) Each recipient must collect such
file.                                           part.                                        data and maintain such records, in
§ 37.32 When must the notice required by        § 37.35 What are a recipient’s               accordance with procedures prescribed
§§ 37.29 and 37.30 be provided?                 responsibilities to provide services and     by the Director, as the Director finds
                                                information in languages other than          necessary to determine whether the
  The notice required by §§ 37.29 and
                                                English?                                     recipient has complied or is complying
37.30 must be initially provided within
                                                                                             with the nondiscrimination and equal
90 days of the effective date of this part,        (a) A significant number or proportion    opportunity provisions of WIA or this
or of the date this part first applies to       of the population eligible to be served,     part. The system and format in which
the recipient, whichever comes later.           or likely to be directly affected, by a      the records and data are kept must be
                                                WIA Title I-financially assisted program     designed to allow the Governor and CRC
§ 37.33 Who is responsible for meeting the
notice requirement with respect to service      or activity may need services or             to conduct statistical or other
providers?                                      information in a language other than         quantifiable data analyses to verify the
  The Governor or the LWIA grant                English in order to be effectively           recipient’s compliance with section 188
recipient, as determined by the                 informed about, or able to participate in,   of WIA and this part.
Governor and as provided in that State’s        the program or activity. Where such a           (2) Such records must include, but are
Methods of Administration, will be              significant number or proportion exists,     not limited to, records on applicants,
responsible for meeting the notice              a recipient must take the following          registrants, eligible applicants/
requirement provided in Sections 37.29          actions:                                     registrants, participants, terminees,
and 37.30 with respect to a State’s                (1) Consider:                             employees, and applicants for
service providers.                                                                           employment. Each recipient must
                                                   (i) The scope of the program or           record the race/ethnicity, sex, age, and
§ 37.34 What type of notice must a              activity, and                                where known, disability status, of every
recipient include in publications,                 (ii) The size and concentration of the    applicant, registrant, eligible applicant/
broadcasts, and other communications?           population that needs services or            registrant, participant, terminee,
   (a) Recipients must indicate that the        information in a language other than         applicant for employment, and
WIA Title I-financially assisted program        English; and                                 employee. Such information must be
or activity in question is an ‘‘equal              (2) Based on those considerations,        stored in a manner that ensures
opportunity employer/program,’’ and             take reasonable steps to provide services    confidentiality, and must be used only
that ‘‘auxiliary aids and services are                                                       for the purposes of recordkeeping and
                                                and information in appropriate
available upon request to individuals                                                        reporting; determining eligibility, where
                                                languages. This information must
with disabilities,’’ in recruitment                                                          appropriate, for WIA Title I-financially
                                                include the initial and continuing notice
brochures and other materials that are                                                       assisted programs or activities;
                                                required under §§ 37.29 and 37.30, and
ordinarily distributed or communicated                                                       determining the extent to which the
                                                all information that is communicated
in written and/or oral form,                                                                 recipient is operating its WIA Title I-
electronically and/or on paper, to staff,       under § 37.34.
                                                                                             financially assisted program or activity
clients, or the public at large, to describe       (b) In circumstances other than those     in a nondiscriminatory manner; or other
programs financially assisted under             described in paragraph (a) of this           use authorized by law.
Title I of WIA or the requirements for          section, a recipient should nonetheless         (c) Each recipient must maintain, and
participation by recipients and                 make reasonable efforts to meet the          submit to CRC upon request, a log of
participants. Where such materials              particularized language needs of             complaints filed with it that allege
indicate that the recipient may be              limited-English-speaking individuals         discrimination on the ground(s) of race,
reached by telephone, the materials             who seek services or information from        color, religion, sex, national origin, age,
must state the telephone number of the          the recipient.                               disability, political affiliation or belief,
              Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                            61729

citizenship, and/or participation in a            (i) The names of the parties;             monitoring activities associated with a
WIA Title I-financially assisted program          (ii) The forum in which each case was     State’s development and
or activity. The log must include: the         filed; and                                   implementation of a Methods of
name and address of the complainant;              (iii) The relevant case numbers.          Administration, and inspecting and
the ground of the complaint; a                    (c) At the discretion of the Director,    copying such books, records, accounts
description of the complaint; the date         grant applicants and recipients may be       and other materials as may be pertinent
the complaint was filed; the disposition       required to provide, in a timely manner,     to ascertain compliance with and ensure
and date of disposition of the complaint;      any information and data necessary to        enforcement of the nondiscrimination
and other pertinent information.               investigate complaints and conduct           and equal opportunity provisions of
Information that could lead to                 compliance reviews on grounds                WIA or this part.
identification of a particular individual      prohibited under the nondiscrimination         (b) Asserted considerations of privacy
as having filed a complaint must be kept       and equal opportunity provisions of          or confidentiality are not a basis for
confidential.                                  WIA and this part.                           withholding information from CRC and
   (d) Where designation of individuals           (d) At the discretion of the Director,    will not bar CRC from evaluating or
by race or ethnicity is required, the          recipients may be required to provide,       seeking to enforce compliance with the
guidelines of the Office of Management         in a timely manner, the particularized       nondiscrimination and equal
and Budget must be used.                       information and/or to submit the             opportunity provisions of WIA and this
   (e) A service provider’s responsibility     periodic reports that the Director           part.
for collecting and maintaining the             considers necessary to determine               (c) Whenever any information that the
information required under this section        compliance with the nondiscrimination        Director asks a grant applicant or
may be assumed by the Governor or              and equal opportunity provisions of          recipient to provide is in the exclusive
LWIA grant recipient, as provided in the       WIA or this part.                            possession of another agency,
State’s Methods of Administration.                (e) At the discretion of the Director,    institution, or person, and that agency,
                                               grant applicants may be required to          institution, or person fails or refuses to
§ 37.38 What information must grant                                                         furnish the information upon request,
applicants and recipients provide to CRC?
                                               submit, in a timely manner, the
                                               particularized information necessary to      the grant applicant or recipient must
   In addition to the information which        determine whether or not the grant           certify to CRC that it has made efforts to
must be collected, maintained, and,            applicant, if financially assisted, would    obtain the information and that the
upon request, submitted to CRC under           be able to comply with the                   agency, institution, or person has failed
§ 37.37:                                       nondiscrimination and equal                  or refused to provide it. This
   (a) Each grant applicant and recipient                                                   certification must list the name and
                                               opportunity provisions of WIA or this
must promptly notify the Director when                                                      address of the agency, institution, or
                                               part.
any administrative enforcement actions                                                      person that has possession of the
                                                  (f) Where designation of individuals
or lawsuits are filed against it alleging                                                   information and the specific efforts the
                                               by race or ethnicity is required, the
discrimination on the ground of race,                                                       grant applicant or recipient made to
                                               guidelines of the Office of Management
color, religion, sex, national origin, age,                                                 obtain it.
                                               and Budget must be used.
disability, political affiliation or belief,
                                                                                            § 37.41 What responsibilities do grant
and for beneficiaries only, citizenship or     § 37.39 How long must grant applicants       applicants, recipients, and the Department
participation in a WIA Title I-financially     and recipients maintain the records          have to maintain the confidentiality of the
assisted program or activity. This             required under this part?                    information collected?
notification must include:                       (a) Each recipient must maintain the          The identity of any individual who
   (1) The names of the parties to the         following records for a period of not less   furnishes information relating to, or
action or lawsuit;                             than three years from the close of the       assisting in, an investigation or a
   (2) The forum in which each case was        applicable program year:                     compliance review, including the
filed; and                                       (1) The records of applicants,             identity of any individual who files a
   (3) The relevant case numbers.              registrants, eligible applicants/
   (b) Each grant applicant (as part of its                                                 complaint, must be kept confidential to
                                               registrants, participants, terminees,        the extent possible, consistent with a
application) and recipient (as part of a       employees, and applicants for
compliance review conducted under                                                           fair determination of the issues. An
                                               employment; and                              individual whose identity it is necessary
Section 37.63, or monitoring activity            (2) Such other records as are required
carried out under § 37.65) must provide                                                     to disclose must be protected from
                                               under this part or by the Director.          retaliation (see § 37.11).
the following information:                       (b) Records regarding complaints and
   (1) The name of any other Federal           actions taken on the complaints must be      § 37.42 What are a recipient’s
agency that conducted a civil rights           maintained for a period of not less than     responsibilities under this part to provide
compliance review or complaint                 three years from the date of resolution      universal access to WIA Title I-financially
investigation, and that found the grant        of the complaint.                            assisted programs and activities?
applicant or recipient to be in                                                                Recipients must take appropriate
noncompliance, during the two years            § 37.40 What access to sources of            steps to ensure that they are providing
before the grant application was filed or      information must grant applicants and        universal access to their WIA Title I-
CRC began its examination; and                 recipients provide the Director?             financially assisted programs and
   (2) Information about any                     (a) Each grant applicant and recipient     activities. These steps should involve
administrative enforcement actions or          must permit access by the Director           reasonable efforts to include members of
lawsuits that alleged discrimination on        during normal business hours to its          both sexes, various racial and ethnic
any protected basis, and that were filed       premises and to its employees and            groups, individuals with disabilities,
against the grant applicant or recipient       participants, to the extent that such        and individuals in differing age groups.
during the two years before the                individuals are on the premises during       Such efforts may include, but are not
application or renewal application,            the course of the investigation, for the     limited to:
compliance review, or monitoring               purpose of conducting complaint                 (a) Advertising the recipient’s
activity. This information must include:       investigations, compliance reviews,          programs and/or activities in media,
61730          Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

such as newspapers or radio programs,             may recommend to the Secretary that             (i) A system for determining whether
that specifically target various                  the imposition of sanctions against the      a grant applicant, if financially assisted,
populations;                                      Governor be waived and that sanctions        and/or a training provider, if selected as
  (b) Sending notices about openings in           be imposed only against the                  eligible under section 122 of the Act, is
the recipient’s programs and/or                   noncomplying recipient.                      likely to conduct its WIA Title I—
activities to schools or community                                                             financially assisted programs or
service groups that serve various                 § 37.53 What are a Governor’s oversight      activities in a nondiscriminatory way,
                                                  responsibilities regarding recipients’
populations; and                                                                               and to comply with the regulations in
                                                  recordkeeping?
  (c) Consulting with appropriate                                                              this part;
community service groups about ways                 The Governor must ensure that                 (ii) A system for periodically
in which the recipient may improve its            recipients collect and maintain records      monitoring the compliance of recipients
outreach and service to various                   in a manner consistent with the              with WIA section 188 and this part,
populations.                                      provisions of § 37.37 and any                including a determination as to whether
                                                  procedures prescribed by the Director        each recipient is conducting its WIA
Subpart C—Governor’s                              under § 37.37(b). The Governor must          Title I—financially assisted program or
Responsibilities to Implement the                 further ensure that recipients are able to   activity in a nondiscriminatory way. At
Nondiscrimination and Equal                       provide data and reports in the manner       a minimum, each periodic monitoring
Opportunity Requirements of WIA                   prescribed by the Director.                  review required by this paragraph must
§ 37.50 To whom does this subpart apply?          § 37.54 What are a Governor’s obligations    include:
                                                  to develop and maintain a Methods of            (A) A statistical or other quantifiable
   This subpart applies to State Programs                                                      analysis of records and data kept by the
                                                  Administration?
as defined in § 37.4. However, the                                                             recipient under § 37.37, including
provisions of § 37.52(b) do not apply to            (a) (1) Each Governor must establish
                                                  and adhere to a Methods of                   analyses by race/ethnicity, sex, age, and
State Employment Security Agencies                                                             disability status;
(SESAs), because the Governor’s                   Administration for State programs as
                                                  defined in § 37.4. In those States in           (B) An investigation of any significant
liability for any noncompliance on the                                                         differences identified in paragraph (A)
part of a SESA cannot be waived.                  which one agency contains both SESA
                                                  or unemployment insurance and WIA            of this section in participation in the
§ 37.51 What are a Governor’s oversight           Title I-financially assisted programs, the   programs, activities, or employment
responsibilities?                                 Governor should develop a combined           provided by the recipient, to determine
  The Governor is responsible for                 Methods of Administration.                   whether these differences appear to be
oversight of all WIA Title I-financially            (2) Each Methods of Administration         caused by discrimination. This
assisted State programs. This                     must be designed to give a reasonable        investigation must be conducted
responsibility includes ensuring                  guarantee that all recipients will           through review of the recipient’s records
compliance with the nondiscrimination             comply, and are complying, with the          and any other appropriate means; and
and equal opportunity provisions of               nondiscrimination and equal                     (C) An assessment to determine
WIA and this part, and negotiating,               opportunity provisions of WIA and this       whether the recipient has fulfilled its
where appropriate, with a recipient to            part.                                        administrative obligations under section
secure voluntary compliance when                    (b) The Methods of Administration          188 or this part (for example,
noncompliance is found under                      must be:                                     recordkeeping, notice and
§ 37.95(b).                                         (1) In writing, addressing each            communication) and any duties
                                                  requirement of § 37.54(d) with narrative     assigned to it under the MOA;
§ 37.52 To what extent may a Governor be          and documentation;                              (iii) A review of recipient policy
liable for the actions of a recipient he or she     (2) Reviewed and updated as required       issuances to ensure they are
has financially assisted under WIA Title I?                                                    nondiscriminatory;
                                                  in § 37.55; and
  (a) The Governor and the recipient are            (3) Signed by the Governor.                   (iv) A system for reviewing recipients’
jointly and severally liable for all                (c) [Reserved]                             job training plans, contracts, assurances,
violations of the nondiscrimination and             (d) At a minimum, each Methods of          and other similar agreements to ensure
equal opportunity provisions of WIA               Administration must:                         that they are both nondiscriminatory
and this part by the recipient, unless the          (1) Describe how the State programs        and contain the required language
Governor has:                                     and recipients have satisfied the            regarding nondiscrimination and equal
  (1) Established and adhered to a                requirements of the following                opportunity;
Methods of Administration, under                  regulations:                                    (v) Procedures for ensuring that
Section 37.54, designed to give                     (i) Sections 37.20 through 37.22           recipients comply with the
reasonable guarantee of the recipient’s           (assurances);                                requirements of Section 504 and this
compliance with such provisions;                    (ii) Sections 37.23 through 37.28          part with regard to individuals with
  (2) Entered into a written contract             (Equal Opportunity Officers);                disabilities;
with the recipient that clearly                     (iii) Sections 37.29 through 37.36            (vi) A system of policy
establishes the recipient’s obligations           (Notice and Communication);                  communication and training to ensure
regarding nondiscrimination and equal               (iv) Sections 37.37 through 37.41          that EO Officers and members of the
opportunity;                                      (Data and Information Collection and         recipients’ staffs who have been
  (3) Acted with due diligence to                 Maintenance);                                assigned responsibilities under the
monitor the recipient’s compliance with             (v) Section 37.42 (Universal Access);      nondiscrimination and equal
these provisions; and                               (vi) Section 37.53 (Governor’s             opportunity provisions of WIA or this
  (4) Taken prompt and appropriate                Oversight Responsibilities Regarding         part are aware of and can effectively
corrective action to effect compliance.           Recipients’ Recordkeeping); and              carry out these responsibilities;
  (b) If the Director determines that the           (vii) Sections 37.76 through 37.79            (vii) Procedures for obtaining prompt
Governor has demonstrated substantial             (Complaint Processing Procedures); and       corrective action or, as necessary,
compliance with the requirements of                 (2) Include the following additional       applying sanctions when
paragraph (a) of this section, he or she          elements:                                    noncompliance is found; and
             Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                       61731

   (viii) Supporting documentation to       Subpart D—Compliance Procedures                 (1) Notify, in a timely manner, the
show that the commitments made in the                                                    Departmental grantmaking agency and
Methods of Administration have been         § 37.60 How does the Director evaluate       the Assistant Attorney General of the
and/or are being carried out. This          compliance with the nondiscrimination and    findings of the pre-approval compliance
                                            equal opportunity provisions of WIA and
supporting documentation includes, but      this part?
                                                                                         review; and
is not limited to:                                                                          (2) Issue a Letter of Findings. The
   (A) policy and procedural issuances         From time to time, the Director may
                                                                                         Letter of Findings must advise the grant
concerning required elements of the         conduct pre-approval compliance
                                                                                         applicant, in writing, of:
Methods of Administration;                  reviews of grant applicants for, and
                                                                                            (i) The preliminary findings of the
   (B) copies of monitoring instruments     post-approval compliance reviews of
                                                                                         review;
and instructions;                           recipients of, WIA Title I financial
                                            assistance, to determine compliance             (ii) The proposed remedial or
   (C) evidence of the extent to which
                                            with the nondiscrimination and equal         corrective action under Section 37.94
nondiscrimination and equal
                                            opportunity provisions of WIA and this       and the time within which the remedial
opportunity policies have been
                                            part. Reviews may focus on one or more       or corrective action should be
developed and communicated as
                                            specific programs or activities, or one or   completed;
required by this part;
   (D) information reflecting the extent    more issues within a program or                 (iii) Whether it will be necessary for
to which Equal Opportunity training,        activity. The Director may also              the grant applicant to enter into a
including training called for by            investigate and resolve complaints           written Conciliation Agreement as
§§ 37.25(f) and 37.26(c), is planned and/   alleging violations of the                   described in §§ 37.95 and 37.97; and
or has been carried out;                    nondiscrimination and equal                     (iv) The opportunity to engage in
   (E) reports of monitoring reviews and    opportunity provisions of WIA and this       voluntary compliance negotiations.
reports of follow-up actions taken under    part.                                           (c) If a grant applicant has agreed to
those reviews where violations have                                                      certain remedial or corrective actions in
been found, including, where                § 37.61 Is there authority to issue          order to receive WIA Title I-funded
appropriate, sanctions; and                 subpoenas?                                   Federal financial assistance, the
   (F) copies of any notices made under       Yes, section 183(c) of WIA authorizes      Department must ensure that the
§§ 37.29 through 37.36.                     the issuance of subpoenas. A subpoena        remedial or corrective actions have been
                                            may direct the individual named on the       taken, or that a Conciliation Agreement
§ 37.55 When must the Governor carry out    subpoena to take the following actions:      has been entered into, before approving
his or her obligations with regard to the
                                              (a) To appear:                             the award of further assistance under
Methods of Administration?
                                              (1) Before a designated CRC                WIA Title I. If a grant applicant refuses
   (a) Within 180 days of either the date   representative,                              or fails to take remedial or corrective
on which this interim final rule is           (2) At a designated time and place;        actions or to enter into a Conciliation
effective, or the date on which the           (b) To give testimony; and/or              Agreement, as applicable, the Director
Department gives final approval to a          (c) To produce documentary                 must follow the procedures outlined in
State’s Five-Year Plan, whichever is        evidence.
later, a Governor must:                                                                  §§ 37.98 through 37.100.
                                            The subpoena may require the
   (1) Develop and implement a Methods                                                   § 37.63 What are the authority and
                                            appearance of witnesses, and the
of Administration consistent with the                                                    procedures for conducting post-approval
                                            production of documents, from any
requirements of this part, and                                                           compliance reviews?
   (2) Submit a copy of the Methods of      place in the United States, at any
                                            designated time and place.                      (a) The Director may initiate a post-
Administration to the Director.                                                          approval compliance review of any
   (b) The Governor must promptly           Compliance Reviews                           recipient to determine compliance with
update the Methods of Administration
                                            § 37.62 What are the authority and           the nondiscrimination and equal
whenever necessary, and must notify
                                            procedures for conducting pre-approval       opportunity provisions of WIA and this
the Director in writing at the time that
                                            compliance reviews?                          part. The initiation of a post-approval
any such updates are made.
   (c) Every two years from the date on        (a) As appropriate and necessary to       review may be based on, but need not
which the initial MOA is submitted to       ensure compliance with the                   be limited to, the results of routine
the Director under § 37.55(a)(2), the       nondiscrimination and equal                  program monitoring by other
Governor must review the Methods of         opportunity provisions of WIA or this        Departmental or Federal agencies, or the
Administration and the manner in            part, the Director may review any            nature or frequency of complaints.
which it has been implemented, and          application, or class of applications, for      (b) A post-approval review must be
determine whether any changes are           Federal financial assistance under Title     initiated by a Notification Letter,
necessary in order for the State to         I of WIA, before and as a condition of       advising the recipient of:
comply fully and effectively with the       their approval. The basis for such              (1) The practices to be reviewed;
nondiscrimination and equal                 review may be the assurance specified           (2) The programs to be reviewed;
opportunity provisions of WIA and this      in § 37.20, information and reports             (3) The information, records, and/or
part.                                       submitted by the grant applicant under       data to be submitted by the recipient
   (1) If any such changes are necessary,   this part or guidance published by the       within 30 days of the receipt of the
the Governor must make the appropriate      Director, and any relevant records on        Notification Letter, unless this time
changes and submit them, in writing, to     file with the Department.                    frame is modified by the Director; and
the Director.                                  (b) Where the Director determines that       (4) The opportunity, at any time
   (2) If the Governor determines that no   the grant applicant for Federal financial    before receipt of the Final
such changes are necessary, s/he must       assistance under WIA Title I, if             Determination described in §§ 37.99 and
certify, in writing, to the Director that   financially assisted, might not comply       37.100, to make a documentary or other
the Methods of Administration               with the nondiscrimination and equal         submission that explains, validates or
previously submitted continues in           opportunity requirements of WIA or this      otherwise addresses the practices under
effect.                                     part, the Director must:                     review.
61732         Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

  (c) The Director may conduct post-              (b) Submit, in a timely manner,              subjected to discrimination prohibited
approval reviews using such techniques          information, records, and/or data              by WIA or this part, may file a written
as desk audits and on-site reviews.             requested during a compliance review,          complaint, either by him/herself or
                                                complaint investigation, or other action       through a representative.
§ 37.64 What procedures must the Director       to determine a recipient’s compliance
follow when CRC has completed a post-                                                          § 37.71   Where may a complaint be filed?
approval compliance review?
                                                with the nondiscrimination and equal
                                                opportunity provisions of WIA or this            A complainant may file a complaint
   (a) Where, as the result of a post-          part; or                                       with either the recipient or the Director.
approval review, the Director has made            (c) Provide CRC access in a timely           Complaints filed with the Director
a finding of noncompliance, he or she           manner to a recipient’s premises,              should be sent to the address listed in
must issue a Letter of Findings. This           records, or employees during a                 the notice in § 37.30.
Letter must advise the recipient, in            compliance review, as required in
writing, of:                                                                                   § 37.72   When must a complaint be filed?
                                                § 37.40.
   (1) The preliminary findings of the                                                            Generally, a complaint must be filed
review;                                         § 37.67 What information must a Notice to      within 180 days of the alleged
   (2) Where appropriate, the proposed          Show Cause contain?                            discrimination. However, for good cause
remedial or corrective action to be               (a) A Notice to Show Cause must              shown, the Director may extend the
taken, and the time by which such               contain:                                       filing time. The time period for filing is
action should be completed, as provided           (1) A description of the violation and       for the administrative convenience of
in § 37.94;                                     a citation to the pertinent                    CRC, and does not create a defense for
   (3) Whether it will be necessary for         nondiscrimination or equal opportunity         the respondent.
the recipient to enter into a written           provision(s) of WIA and this part;
                                                  (2) The corrective action necessary to       § 37.73 What information must a complaint
assurance and/or Conciliation                                                                  contain?
Agreement, as provided in §§ 37.96 and          achieve compliance or, as may be
                                                appropriate, the concepts and principles          Each complaint must be filed in
37.97; and                                                                                     writing, and must contain the following
   (4) The opportunity to engage in             of acceptable corrective or remedial
                                                action and the results anticipated; and        information:
voluntary compliance negotiations.                                                                (a) The complainant’s name and
                                                  (3) A request for a written response to
   (b) Where no violation is found, the                                                        address (or another means of contacting
                                                the findings, including commitments to
recipient must be so informed in                                                               the complainant);
                                                corrective action or the presentation of
writing.                                                                                          (b) The identity of the respondent (the
                                                opposing facts and evidence.
§ 37.65 What is the Director’s authority to       (b) A Notice to Show Cause must give         individual or entity that the
monitor the activities of a Governor?           the recipient 30 days to show cause why        complainant alleges is responsible for
                                                enforcement proceedings under the              the discrimination);
   (a) The Director may periodically
                                                nondiscrimination and equal                       (c) A description of the complainant’s
review the adequacy of the Methods of
                                                opportunity provisions of WIA or this          allegations. This description must
Administration established by a
                                                part should not be instituted.                 include enough detail to allow the
Governor, as well as the adequacy of the
                                                                                               Director or the recipient, as applicable,
Governor’s performance under the                § 37.68 How may a recipient show cause         to decide whether:
Methods of Administration, to                   why enforcement proceedings should not            (i) CRC or the recipient, as applicable,
determine compliance with the                   be instituted?                                 has jurisdiction over the complaint;
requirements of §§ 37.50 through 37.55.            A recipient may show cause why                 (ii) The complaint was filed in time;
The Director may review the Methods of          enforcement proceedings should not be          and
Administration during a compliance              instituted by, among other means:                 (iii) The complaint has apparent
review under §§ 37.62 and 37.63, or at             (a) Correcting the violation(s) that        merit; in other words, whether the
another time.                                   brought about the Notice to Show Cause         complainant’s allegations, if true, would
   (b) Nothing in this subpart limits or        and entering into a written assurance          violate any of the nondiscrimination
precludes the Director from monitoring          and/or entering into a Conciliation            and equal opportunity provisions of
directly any WIA Title I recipient or           Agreement, as appropriate, under               WIA or this part; and
from investigating any matter necessary         §§ 37.95 through 37.97;                           (d) The complainant’s signature or the
to determine a recipient’s compliance              (b) Demonstrating that CRC does not         signature of the complainant’s
with the nondiscrimination and equal            have jurisdiction; or                          authorized representative.
opportunity provisions of WIA or this              (c) Demonstrating that the violation
part.                                           alleged by CRC did not occur.                  § 37.74 Are there any forms that a
                                                                                               complainant may use to file a complaint?
§ 37.66 What happens if a recipient fails to    § 37.69 What happens if a recipient fails to
                                                                                                  Yes. A complainant may file a
submit requested data, records, and/or          show cause?
                                                                                               complaint by completing and
information, or fails to provide CRC with the     If the recipient fails to show cause
required access?                                                                               submitting CRC’s Complaint
                                                why enforcement proceedings should             Information and Privacy Act Consent
   The Director may issue a Notice to           not be initiated, the Director must            Forms, which may be obtained either
Show Cause to a recipient failing to            follow the enforcement procedures              from the recipient’s EO Officer, or from
comply with the requirements of this            outlined in §§ 37.99 and 37.100.               CRC at the address listed in the notice
part, where such failure results in the                                                        contained in § 37.30.
                                                Complaint Processing Procedures
inability of the Director to make a
finding. Such a failure includes, but is        § 37.70 Who may file a complaint               § 37.75 Is there a right of representation in
not limited to, the recipient’s failure or      concerning discrimination connected with       the complaint process?
refusal to:                                     WIA Title I?                                     Yes. Both the complainant and the
   (a) Submit requested information,              Any person who believes that either          respondent have the right to be
records, and/or data within 30 days of          he or she, or any specific class of            represented by an attorney or other
receiving a Notification Letter;                individuals, has been or is being              individual of their choice.
              Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                             61733

§ 37.76 What are the required elements of       (i) The non-breaching party may file          complainant or his/her representative
a recipient’s discrimination complaint        a complaint with the Director within 30         may file a complaint with the Director
processing procedures?                        days of the date on which the non-              within 30 days of the expiration of the
   (a) The procedures that a recipient        breaching party learns of the alleged           90-day period. In other words, the
adopts and publishes must provide that        breach;                                         complaint must be filed with the
the recipient will issue a written Notice       (ii) The Director must evaluate the           Director within 120 days of the date on
of Final Action on discrimination             circumstances to determine whether the          which the complaint was filed with the
complaints within 90 days of the date         agreement has been breached. If he or           recipient.
on which the complaint is filed.              she determines that the agreement has
   (b) At a minimum, the procedures           been breached, the complainant may file         § 37.81 Are there any circumstances under
must include the following elements:          a complaint with CRC based upon his/            which the Director may extend the time limit
   (1) Initial, written notice to the                                                         for filing a complaint with him or her?
                                              her original allegation(s), and the
complainant that contains the following       Director will waive the time deadline              Yes. The Director may extend the 30-
information:                                  for filing such a complaint.                    day time limit:
   (i) An acknowledgment that the               (3) If the parties do not reach an               (a) If the recipient does not include in
recipient has received the complaint,         agreement under ADR, the complainant            its Notice of Final Action the required
and                                           may file a complaint with the Director          notice about the complainant’s right to
   (ii) Notice that the complainant has       as described in §§ 37.71 through 37.74.         file with the Director, as described in
the right to be represented in the                                                            § 37.76(b)(5)(ii); or
complaint process;                            § 37.77 Who is responsible for developing
   (2) A written statement of the issue(s),   and publishing complaint processing                (b) For other good cause shown.
provided to the complainant, that             procedures for service providers?                  The complainant has the burden of
includes the following information:             The Governor or the LWIA grant                proving to the Director that the time
   (i) A list of the issues raised in the     recipient, as provided in the State’s           limit should be extended.
complaint, and                                Methods of Administration, must                 § 37.82 Does the Director accept every
   (ii) For each such issue, a statement      develop and publish, on behalf of its           complaint for resolution?
whether the recipient will accept the         service providers, the complaint
issue for investigation or reject the                                                           No. The Director must determine
                                              processing procedures required in
issue, and the reasons for each rejection;                                                    whether CRC will accept a particular
                                              § 37.76. The service providers must then
   (3) A period for fact-finding or                                                           complaint for resolution. For example, a
                                              follow those procedures.
investigation of the circumstances                                                            complaint need not be accepted if:
underlying the complaint;                     § 37.78 Does a recipient have any special         (a) It has not been timely filed;
   (4) A period during which the              obligations in cases in which the recipient       (b) CRC has no jurisdiction over the
recipient attempts to resolve the             determines that it has no jurisdiction over     complaint; or
complaint. The methods available to           a complaint?
                                                                                                (c) CRC has previously decided the
resolve the complaint must include               Yes. If a recipient determines that it       matter.
alternative dispute resolution (ADR), as      does not have jurisdiction over a
described in paragraph (c) of this            complaint, it must notify the                   § 37.83 What happens if a complaint does
section                                       complainant, in writing, immediately.           not contain enough information?
   (5) A written Notice of Final Action,      This Notice of Lack of Jurisdiction must           (a) If a complaint does not contain
provided to the complainant within 90         include:                                        enough information, the Director must
days of the date on which the complaint          (a) A statement of the reasons for that      try to get the needed information from
was filed, that contains the following        determination, and                              the complainant.
information:                                     (b) Notice that the complainant has a
                                                                                                 (b) The Director may close the
   (i) For each issue raised in the           right to file a complaint with CRC
                                                                                              complainant’s file, without prejudice, if:
complaint, a statement of either:             within 30 days of the date on which the
                                              complainant receives the Notice.                   (1) The Director makes reasonable
   (A) The recipient’s decision on the
                                                                                              efforts to try to find the complainant,
issue and an explanation of the reasons
                                              § 37.79 If, before the 90-day period has        but is unable to reach him or her; or
underlying the decision, or                   expired, a recipient issues a Notice of Final
   (B) A description of the way the                                                              (2) The complainant does not provide
                                              Action with which the complainant is            the needed information to CRC within
parties resolved the issue; and               dissatisfied, how long does the complainant
   (ii) Notice that the complainant has a                                                     the time specified in the request for
                                              have to file a complaint with the Director?
right to file a complaint with CRC                                                            more information.
                                                If, during the 90-day period, the                (c) If the Director closes the
within 30 days of the date on which the       recipient issues its Notice of Final
Notice of Final Action is issued if he or                                                     complainant’s file, he or she must send
                                              Action, but the complainant is                  written notice to the complainant’s last
she is dissatisfied with the recipient’s      dissatisfied with the recipient’s decision
final action on the complaint.                                                                known address.
                                              on the complaint, the complainant or
   (c) The procedures the recipient           his/her representative may file a               § 37.84 What happens if CRC does not
adopts must provide for alternative           complaint with the Director within 30           have jurisdiction over a complaint?
dispute resolution (ADR). The                 days after the date on which the
recipient’s ADR procedures must                                                                 If CRC does not have jurisdiction over
                                              complainant receives the Notice.                a complaint, the Director must:
provide that:
   (1) The choice whether to use ADR or       § 37.80 What happens if a recipient fails to      (a) Notify the complainant and
the customary process rests with the          issue a Notice of Final Action within 90        explain why the complaint falls outside
complainant;                                  days of the date on which a complaint was       the coverage of the nondiscrimination
   (2) A party to any agreement reached       filed?                                          and equal opportunity provisions of
under ADR may file a complaint with              If, by the end of 90 days from the date      WIA or this part; and
the Director in the event the agreement       on which the complainant filed the                (b) Where possible, transfer the
is breached. In such circumstances, the       complaint, the recipient has failed to          complaint to an appropriate Federal,
following rules will apply:                   issue a Notice of Final Action, the             State or local authority.
61734         Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

§ 37.85 Are there any other circumstances       must notify the complainant and the            § 37.91 What notice must the Director
in which the Director will send a complaint     respondent about the referral.                 issue if he or she finds reasonable cause
to another authority?                                                                          to believe that a violation has taken place?
   Yes. The Director refers complaints to       § 37.86 What must the Director do if he or       If the Director finds reasonable cause
other agencies in the following                 she determines that a complaint will not be
                                                                                               to believe that the respondent has
                                                accepted?
circumstances:                                                                                 violated the nondiscrimination and
   (a) Where the complaint alleges                If a complaint will not be accepted,         equal opportunity provisions of WIA or
discrimination based on age, and the            the Director must notify the                   this part, he or she must issue an Initial
complaint falls within the jurisdiction         complainant, in writing, about that fact,      Determination. The Initial
of the Age Discrimination Act of 1975,          and provide the complainant his/her
                                                                                               Determination must include:
as amended, then the Director must              reasons for making that determination.
                                                                                                 (a) The specific findings of the
refer the complaint, in accordance with         § 37.87 What must the Director do if he or     investigation;
the provisions of 45 CFR 90.43(c)(3).           she determines that a complaint will be          (b) The corrective or remedial action
   (b) Where the only allegation in the         accepted?                                      that the Department proposes to the
complaint is a charge of individual                If the Director accepts the complaint       respondent, under § 37.94;
employment discrimination that is               for resolution, he or she must notify the        (c) The time by which the respondent
covered both by WIA or this part and by         complainant, the respondent, and the           must complete the corrective or
one or more of the laws listed below,           grantmaking agency. The notice must:           remedial action;
then the complaint is a ‘‘joint                    (a) State that the complaint will be          (d) Whether it will be necessary for
complaint,’’ and the Director may refer         accepted,                                      the respondent to enter into a written
it to the EEOC for investigation and               (b) Identify the issues over which CRC      agreement under § 37.95 and 37.96; and
conciliation under the procedures               has accepted jurisdiction; and                   (e) The opportunity to engage in
described in 29 CFR part 1640 or 1691,             (c) Explain the reasons why any             voluntary compliance negotiations.
as appropriate. The relevant laws are:          issues were rejected.
   (1) Title VII of the Civil Rights Act of                                                    § 37.92 What notice must the Director
                                                § 37.88 Who may contact CRC about a            issue if he or she finds no reasonable cause
1964, as amended (42 U.S.C. 2000e to
                                                complaint?                                     to believe that a violation has taken place?
2000e–17);
   (2) The Equal Pay Act of 1963, as              Both the complainant and the                   If the Director determines that there is
amended (29 U.S.C. 206(d));                     respondent, or their authorized                no reasonable cause to believe that a
   (3) The Age Discrimination in                representatives, may contact CRC for           violation has taken place, he or she
Employment Act of 1976, as amended              information about the complaint. The           must issue a Final Determination under
(29 U.S.C. 621, et seq.); and                   Director will determine what                   § 37.100. The Final Determination
   (4) Title I of the Americans with            information, if any, about the complaint       represents the Department’s final agency
Disabilities Act of 1990, as amended (42        will be released.                              action on the complaint.
U.S.C. 12101 et seq.).                          § 37.89 May the Director offer the parties
   (c) Where the complaint alleges                                                             § 37.93 What happens if the Director finds
                                                to a complaint the option of mediation?        that a violation has taken place, and the
discrimination by an entity that operates         Yes. The Director may offer the              recipient fails or refuses to take the
a program or activity financially assisted      parties to a complaint the option of           corrective action listed in the Initial
by a Federal grantmaking agency other           mediating the complaint. In such               Determination?
than the Department, but that                   circumstances, the following rules               Under such circumstances, the
participates as a partner in a One-Stop         apply:                                         Department must take the actions
delivery system, the following                    (a) Mediation is voluntary; the parties      described in § 37.99 of this part.
procedures apply:                               must consent before the mediation
   (1) Where the complaint alleges              process will proceed.                          § 37.94 What corrective or remedial
discrimination on a basis that is                 (b) The mediation will be conducted          actions may be imposed where, after a
prohibited both by Section 188 of WIA           under guidance issued by the Director.         compliance review or complaint
and by a civil rights law enforced by the         (c) If the parties are unable to reach       investigation, the Director finds a violation
Federal grantmaking agency, then CRC            resolution of the complaint through            of the nondiscrimination and equal
and the grantmaking agency have dual            mediation, CRC will investigate and            opportunity provisions of WIA or this part?
jurisdiction over the complaint, and the        process the complaint under §§ 37.82              (a) A Letter of Findings, Notice to
Director will refer the complaint to the        through 37.88 of this part.                    Show Cause, or Initial Determination,
grantmaking agency for processing. In                                                          issued under §§ 37.62 or 37.63, 37.66
                                                Determinations                                 and 37.67, or 37.91 respectively, must
such circumstances, the grantmaking
agency’s regulations will govern the            § 37.90 If a complaint is investigated, what   include the specific steps the grant
processing of the complaint.                    must the Director do when the investigation    applicant or recipient, as applicable,
   (2) Where the complaint alleges              is completed?                                  must take within a stated period of time
discrimination on a basis that is                 At the conclusion of the investigation       in order to achieve voluntary
prohibited by Section 188 of WIA, but           of the complaint, the Director must take       compliance.
not by any civil rights laws enforced by        the following actions:                            (b) Such steps must include:
the Federal grantmaking agency, then              (a) Determine whether there is                  (1) Actions to end and/or redress the
CRC has sole jurisdiction over the              reasonable cause to believe that the           violation of the nondiscrimination and
complaint, and will retain the complaint        respondent has violated the                    equal opportunity provisions of WIA or
and process it pursuant to this part.           nondiscrimination and equal                    this part;
Such bases generally include religion,          opportunity provisions of WIA or this             (2) Make whole relief where
political affiliation or belief, citizenship,   part; and                                      discrimination has been identified,
and/or participation in a WIA Title I-            (b) Notify the complainant, the              including, as appropriate, back pay
financially assisted program or activity.       respondent, and the grantmaking                (which must not accrue from a date
   (d) Where the Director makes a               agency, in writing, of that                    more than 2 years before the filing of the
referral under this section, he or she          determination.                                 complaint or the initiation of a
               Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                          61735

compliance review) or other monetary           such violations have been corrected,           (e) Provide that the violation(s) will
relief; hire or reinstatement; retroactive     under § 37.96;                               not recur; and
seniority; promotion; benefits or other           (B) Entering into a written                 (f) Provide for enforcement for a
services discriminatorily denied; and          Conciliation Agreement under § 37.97;        breach of the agreement.
   (3) Such other remedial or affirmative      or
relief as the Director deems necessary,                                                     § 37.98 When will the Director conclude
                                                  (C) Both.
                                                                                            that compliance cannot be secured by
including but not limited to outreach,            (2) If the Governor determines, at any    voluntary means?
recruitment and training designed to           time during the period described in
ensure equal opportunity.                      paragraph (b)(1)(ii) of this section, that      The Director will conclude that
   (c) Monetary relief may not be paid         a recipient’s compliance cannot be           compliance cannot be secured by
from Federal funds.                            achieved by voluntary means, the             voluntary means under the following
                                               Governor must so notify the Director.        circumstances:
§ 37.95 What procedures apply if the                                                           (a) The grant applicant or recipient
Director finds that a recipient has violated      (3) If the Governor is able to secure
                                                                                            fails or refuses to correct the violation(s)
the nondiscrimination and equal                voluntary compliance under paragraph
                                                                                            within the time period established by
opportunity provisions of WIA or this part?    (b)(1) of this section, he or she must
                                                                                            the Letter of Findings, Notice to Show
   (a) Violations at State level. Where the    submit to the Director for approval, as
                                                                                            Cause or Initial Determination; or
Director has determined that a violation       applicable:
                                                                                               (b) The Director has not approved an
of the nondiscrimination and equal                (i) Written assurance that the required
                                                                                            extension of time for agreement on
opportunity provisions of WIA or this          action has been taken, as described in
                                                                                            voluntary compliance, under
part has occurred at the State level, he       § 37.96;
                                                                                            § 37.95(b)(1)(ii), and he or she either:
or she must notify the Governor through           (ii) A copy of the Conciliation
                                                                                               (1) Has not been notified, under
the issuance of a Letter of Findings,          Agreement, as described in § 37.97; or
                                                                                            § 37.95(b)(3), that the grant applicant or
Notice to Show Cause or Initial                   (iii) Both.
                                                                                            recipient has agreed to voluntary
Determination, as appropriate, under              (4) The Director may disapprove any
                                                                                            compliance;
§ 37.62 or 37.63, 37.66 and 37.67, or          written assurance or Conciliation
                                                                                               (2) Has disapproved a written
37.91, respectively. The Director may          Agreement submitted for approval
                                                                                            assurance or Conciliation Agreement,
secure compliance with the                     under paragraph (b)(3) of this section
                                                                                            under § 37.95(b)(4); or
nondiscrimination and equal                    that fails to satisfy each of the               (3) Has received notice from the
opportunity provisions of WIA and this         applicable requirements provided in          Governor, under § 37.95(b)(2), that the
part through, among other means, the           §§ 37.96 or 37.97.                           grant applicant or recipient will not
execution of a written assurance and/or           (c) Violations in National Programs.      comply voluntarily.
Conciliation Agreement, under                  Where the Director has determined that
paragraph (d) of this section.                 a violation of the nondiscrimination and     § 37.99 If the Director concludes that
   (b) Violations below State level.           equal opportunity provisions of WIA or       compliance cannot be secured by voluntary
Where the Director has determined that         this part has occurred in a National         means, what actions must he or she take?
a violation of the nondiscrimination and       Program, he or she must notify the             If the Director concludes that
equal opportunity provisions of WIA or         Federal grantmaking agency and the           compliance cannot be secured by
this part has occurred below the State         recipient by issuing a Letter of Findings,   voluntary means, he or she must either:
level, the Director must so notify the         Notice to Show Cause, or Initial               (a) Issue a Final Determination;
Governor and the violating recipient(s)        Determination, as appropriate, under           (b) Refer the matter to the Attorney
through the issuance of a Letter of            §§ 37.62 or 37.63, 37.66 and 37.67, or       General with a recommendation that an
Findings, Notice to Show Cause or              37.91, respectively. The Director may        appropriate civil action be instituted; or
Initial Determination, as appropriate,         secure compliance with the                     (c) Take such other action as may be
under §§ 37.62 or 37.63, 37.66 and             nondiscrimination and equal                  provided by law.
37.67, or 37.91, respectively.                 opportunity provisions of WIA and this
   (1) Such issuance must:                                                                  § 37.100 What information must a Final
                                               part through, among other means, the         Determination contain?
   (i) Direct the Governor to initiate         execution of a written assurance and/or
negotiations immediately with the                                                              A Final Determination must contain
                                               Conciliation Agreement under §§ 37.96
violating recipient(s) to secure                                                            the following information:
                                               or 37.97, as applicable.
compliance by voluntary means;                                                                 (a) A statement of the efforts made to
   (ii) Direct the Governor to complete        § 37.96 What are the required elements of    achieve voluntary compliance, and a
such negotiations within 30 days of the        a written assurance?                         statement that those efforts have been
Governor’s receipt of the Notice to Show         A written assurance must provide           unsuccessful;
Cause or within 45 days of the                 documentation that the violations listed        (b) A statement of those matters upon
Governor’s receipt of the Letter of            in the Letter of Findings, Notice to         which the grant applicant or recipient
Findings or Initial Determination, as          Show Cause or Initial Determination, as      and CRC continue to disagree;
applicable. The Director reserves the          applicable, have been corrected.                (c) A list of any modifications to the
right to enter into negotiations with the                                                   findings of fact or conclusions that were
recipient at any time during the period.       § 37.97 What are the required elements of    set forth in the Initial Determination,
For good cause shown, the Director may         a Conciliation Agreement?                    Notice to Show Cause or Letter of
approve an extension of time to secure           A Conciliation Agreement must:             Findings;
voluntary compliance. The total time             (a) Be in writing;                            (d) A statement of the grant
allotted to secure voluntary compliance          (b) Address each cited violation;          applicant’s or recipient’s liability, and,
must not exceed 60 days.                         (c) Specify the corrective or remedial     if appropriate, the extent of that
   (iii) Include a determination as to         action to be taken within a stated period    liability;
whether compliance must be achieved            of time to come into compliance;                (e) A description of the corrective or
by:                                              (d) Provide for periodic reporting on      remedial actions that the grant applicant
   (A) Immediate correction of the             the status of the corrective and remedial    or recipient must take to come into
violation(s) and written assurance that        action;                                      compliance;
61736          Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

   (f) A notice that if the grant applicant   within 10 days of the receipt of the         approved before the beginning of
or recipient fails to come into               Notification of Breach of Conciliation       proceedings under § 37.111, or increases
compliance within 10 days of the date         Agreement may result, after opportunity      in funding as a result of changed
on which it receives the Final                for a hearing, in the termination or         computations of formula awards.
Determination, one or more of the             denial of the grant, or discontinuation of
following consequences may result:            assistance, as appropriate, or in referral   § 37.111 What hearing procedures does
   (1) After the grant applicant or                                                        the Department follow?
                                              to the Department of Justice with a
recipient is given the opportunity for a      request from the Department to file suit;       (a) Notice of opportunity for hearing.
hearing, its WIA Title I funds may be            (e) Advise the violating party of the     As part of a Final Determination, or a
terminated, discontinued, or withheld         right to request a hearing, and reference    Notification of Breach of a Conciliation
in whole or in part, or its application for   the applicable procedures in Section         Agreement, the Director must include,
such funds may be denied, as                  37.111; and                                  and serve on the grant applicant or
appropriate;                                     (f) Include a determination as to the     recipient (by certified mail, return
   (2) The Secretary of Labor may refer       Governor’s liability, if any, in             receipt requested), a notice of
the case to the Department of Justice         accordance with the provisions of            opportunity for hearing.
with a request to file suit against the       § 37.52.                                        (b) Complaint; request for hearing;
grant applicant or recipient; or                                                           answer. (1) In the case of
   (3) the Secretary may take any other       § 37.105 Whom must the Director notify if    noncompliance that cannot be
                                              enforcement action under a Notification of   voluntarily resolved, the Final
action against the grant applicant or
                                              Breach of Conciliation Agreement is
recipient that is provided by law;            commenced?                                   Determination or Notification of Breach
   (g) A notice of the grant applicant’s or                                                of Conciliation Agreement is considered
recipient’s right to request a hearing          In such circumstances, the Director
                                                                                           the Department’s formal complaint.
under the procedures described in             must notify:                                    (2) To request a hearing, the grant
                                                (a) The grantmaking agency; and
§§ 37.112 through 37.115; and                   (b) The Governor, recipient or grant       applicant or recipient must file a written
   (h) A determination of the Governor’s                                                   answer to the Final Determination or
                                              applicant, as applicable.
liability, if any, under § 37.52.                                                          Notification of Breach of Conciliation
                                              Subpart E—Federal Procedures For             Agreement, and a copy of the Final
§ 37.101 Whom must the Director notify of
a finding of noncompliance?                   Effecting Compliance                         Determination or Notification of Breach
                                                                                           of Conciliation Agreement, with the
   Where a compliance review or               § 37.110 What enforcement procedures         Office of the Administrative Law Judges,
complaint investigation results in a          does the Department follow to effect         800 K Street N.W., Suite 400,
finding of noncompliance, the Director        compliance with the nondiscrimination and
must notify:                                  equal opportunity provisions of WIA and
                                                                                           Washington, DC 20001.
   (a) The grant applicant or recipient;      this part?                                      (i) The answer must be filed within 30
   (b) The grantmaking agency; and                                                         days of the date of receipt of the Final
                                                 (a) Sanctions; judicial enforcement. If
   (c) Tthe Assistant Attorney General.                                                    Determination or Notification of Breach
                                              compliance has not been achieved after
                                                                                           of Conciliation Agreement.
Breaches of Conciliation Agreements           issuance of a Final Determination under
                                                                                              (ii) A request for hearing must be set
                                              §§ 37.99 and 37.100, or a Notification of
§ 37.102 What happens if a grant applicant                                                 forth in a separate paragraph of the
                                              Breach of Conciliation Agreement under
or recipient breaches a Conciliation                                                       answer.
                                              §§ 37.102 through 37.105, the Secretary
Agreement?                                                                                    (iii) The answer must specifically
                                              may:
   When it becomes known to the                  (1) After opportunity for a hearing,      admit or deny each finding of fact in the
Director that a Conciliation Agreement        suspend, terminate, deny or discontinue      Final Determination or Notification of
has been breached, the Director may           the WIA Title I financial assistance, in     Breach of Conciliation Agreement.
issue a Notification of Breach of             whole or in part;                            Where the grant applicant or recipient
Conciliation Agreement.                          (2) Refer the matter to the Attorney      does not have knowledge or information
                                              General with a recommendation that an        sufficient to form a belief, the answer
§ 37.103 Whom must the Director notify                                                     may so state and the statement will have
about a breach of a Conciliation
                                              appropriate civil action be instituted; or
                                                 (3) Take such action as may be            the effect of a denial. Findings of fact
Agreement?                                                                                 not denied are considered admitted. The
                                              provided by law.
  The Director must send a Notification          (b) Deferral of new grants. When          answer must separately state and
of Breach of Conciliation Agreement to        proceedings under § 37.111 have been         identify matters alleged as affirmative
the Governor, the grantmaking agency,         initiated against a particular recipient,    defenses, and must also set forth the
and/or other party(ies) to the                the Department may defer action on that      matters of fact and law relied on by the
Conciliation Agreement, as applicable.        recipient’s applications for new WIA         grant applicant or recipient.
§ 37.104 What information must a              Title I financial assistance until a Final      (3) The grant applicant or recipient
Notification of Breach of Conciliation        Decision under § 37.112 has been             must simultaneously serve a copy of its
Agreement contain?                            rendered. Deferral is not appropriate        filing on the Office of the Solicitor, Civil
  A Notification of Breach of                 when WIA Title I financial assistance is     Rights Division, Room N–2464, U.S.
Conciliation Agreement must:                  due and payable under a previously           Department of Labor, 200 Constitution
  (a) Specify any efforts made to             approved application.                        Avenue N.W., Washington DC 20210.
achieve voluntary compliance, and                (1) New WIA Title I financial                (4) (i) The failure of a grant applicant
indicate that those efforts have been         assistance includes all assistance for       or recipient to request a hearing under
unsuccessful;                                 which an application or approval,            this paragraph, or to appear at a hearing
  (b) Identify the specific provisions of     including renewal or continuation of         for which a date has been set, waives
the Conciliation Agreement violated;          existing activities, or authorization of     the right to a hearing; and
  (c) Determine liability for the             new activities, is required during the          (ii) Whenever a hearing is waived, all
violation and the extent of the liability;    deferral period.                             allegations of fact contained in the Final
  (d) Indicate that failure of the               (2) New WIA Title I financial             Determination or Notification of Breach
violating party to come into compliance       assistance does not include assistance       of Conciliation Agreement are
              Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations                           61737

considered admitted, and the Final                (iv) Within 45 days of the date of       and/or remedial actions, or referring the
Determination or Notification of Breach        filing such exceptions, a reply, which      matter to the Attorney General for
of Conciliation Agreement becomes the          must be limited to the scope of the         further enforcement action.
Final Decision of the Secretary as of the      exceptions, may be filed and served by        (3) Final agency action. A Final
day following the last date by which the       any other party to the proceeding.          Decision and Order issued under
grant applicant or recipient was                  (v) Requests for extensions for the      § 37.112(b) constitutes final agency
required to request a hearing or was to        filing of exceptions or replies must be     action.
appear at a hearing. See § 37.112(b)(3).       received by the Secretary no later than
                                               3 days before the exceptions or replies     § 37.113 What procedure does the
  (c) Time and place of hearing.
                                               are due.                                    Department follow to suspend, terminate,
Hearings will be held at a time and                                                        withhold, deny or discontinue WIA Title I
place ordered by the Administrative               (vi) If no exceptions are filed, the
                                                                                           financial assistance?
Law Judge upon reasonable notice to all        Secretary may, within 30 days of the
                                               expiration of the time for filing              Any action to suspend, terminate,
parties and, as appropriate, the
                                               exceptions, on his or her own motion        deny or discontinue WIA Title I
complainant. In selecting a place for the
                                               serve notice on the parties that the        financial assistance must be limited to
hearing, due regard must be given to the
                                               Secretary will review the decision.         the particular political entity, or part
convenience of the parties, their
                                                  (vii) Final Decision and Order.          thereof, or other recipient (or grant
counsel, and witnesses, if any.
                                                  (A) Where exceptions have been filed,    applicant) as to which the finding has
  (d) Judicial process; evidence. (1) The                                                  been made, and must be limited in its
                                               the initial decision and order of the
Administrative Law Judge may use                                                           effect to the particular program, or part
                                               Administrative Law Judge becomes the
judicial process to secure the attendance                                                  thereof, in which the noncompliance
                                               Final Decision and Order of the
of witnesses and the production of                                                         has been found. No order suspending,
                                               Secretary unless the Secretary, within
documents authorized by Section 9 of                                                       terminating, denying or discontinuing
                                               30 days of the expiration of the time for
the Federal Trade Commission Act (15                                                       WIA Title I financial assistance will
                                               filing exceptions and replies, has
U.S.C. 49).                                                                                become effective until:
                                               notified the parties that the case is
  (2) Evidence. In any hearing or              accepted for review.                           (a) The Director has issued a Final
administrative review conducted under             (B) Where exceptions have not been       Determination under § 37.100 or
this part, evidentiary matters will be         filed, the initial decision and order of    Notification of Breach of Conciliation
governed by the standards and                  the Administrative Law Judge becomes        Agreement under § 37.104;
principles set forth in the Uniform Rules      the Final Decision and Order of the            (b) There has been an express finding
of Evidence issued by the Department of        Secretary unless the Secretary has          on the record, after opportunity for a
Labor’s Office of Administrative Law           served notice on the parties that he or     hearing, of failure by the grant applicant
Judges, 29 CFR part 18.                        she will review the decision, as            or recipient to comply with a
§ 37.112 What procedures for initial and       provided in paragraph (b)(1)(vi) of this    requirement imposed by or under the
final decisions does the Department follow?    section.                                    nondiscrimination and equal
                                                  (viii) Any case reviewed by the          opportunity provisions of WIA or this
   (a) Initial Decision. After the hearing,
                                               Secretary under this paragraph must be      part;
the Administrative Law Judge must
                                               decided within 180 days of the                 (c) A Final Decision has been issued
issue an initial decision and order,
                                               notification of such review. If the         by the Secretary, the Administrative
containing findings of fact and
                                               Secretary fails to issue a Final Decision   Law Judge’s decision and order has
conclusions of law. The initial decision
                                               and Order within the 180-day period,        become the Final Decision of the
and order must be served on all parties
                                               the initial decision and order of the       Secretary, or the Final Determination or
by certified mail, return receipt
                                               Administrative Law Judge becomes the        Notification of Conciliation Agreement
requested.
                                               Final Decision and Order of the             has been deemed the Final Decision of
   (b) Exceptions; Final Decision. (1)         Secretary.
Final decision after a hearing. The                                                        the Secretary, under § 37.112(b); and
                                                  (2) Final Decision where a hearing is       (d) The expiration of 30 days after the
initial decision and order becomes the         waived.
Final Decision and Order of the                                                            Secretary has filed, with the committees
                                                  (i) If, after issuance of a Final        of Congress having legislative
Secretary unless exceptions are filed by       Determination under § 37.100 or
a party or, in the absence of exceptions,                                                  jurisdiction over the program involved,
                                               Notification of Breach of Conciliation      a full written report of the
the Secretary serves notice that he or         Agreement under § 37.104, voluntary
she will review the decision.                                                              circumstances and grounds for such
                                               compliance has not been achieved            action.
   (i) A party dissatisfied with the initial   within the time set by this part and the
decision and order may, within 45 days         opportunity for a hearing has been          § 37.114 What procedure does the
of receipt, file with the Secretary and        waived as provided for in § 37.111(b)(4),   Department follow to distribute WIA Title I
serve on the other parties to the              the Final Determination or Notification     financial assistance to an alternate
proceedings and on the Administrative          of Breach of Conciliation Agreement         recipient?
Law Judge, exceptions to the initial           becomes the Final Decision of the              When the Department withholds
decision and order or any part thereof.        Secretary.                                  funds from a recipient or grant applicant
   (ii) Upon receipt of exceptions, the           (ii) When a Final Determination or       under these regulations, the Secretary
Administrative Law Judge must index            Notification of Breach of Conciliation      may disburse the withheld funds
and forward the record and the initial         Agreement becomes the Final Decision        directly to an alternate recipient. In
decision and order to the Secretary            of the Secretary, the Secretary may,        such case, the Secretary will require any
within three days of such receipt.             within 45 days, issue an order              alternate recipient to demonstrate:
   (iii) A party filing exceptions must        terminating or denying the grant or            (a) The ability to comply with these
specifically identify the finding or           continuation of assistance or imposing      regulations; and
conclusion to which exception is taken.        other appropriate sanctions for the grant      (b) The ability to achieve the goals of
Any exception not specifically urged is        applicant or recipient’s failure to         the nondiscrimination and equal
waived.                                        comply with the required corrective         opportunity provisions of WIA.
61738         Federal Register / Vol. 64, No. 218 / Friday, November 12, 1999 / Rules and Regulations

§ 37.115 What procedures does the            Title I financial assistance. A copy of      brought itself into compliance, he or she
Department follow for post-termination       the petition must be served on the           must issue a decision denying the
proceedings?                                 parties to the original proceeding that      petition.
   (a) A grant applicant or recipient        led to the Final Decision and Order. The       (2) Within 30 days of its receipt of the
adversely affected by a Final Decision       petition must be supported by                Director’s decision, the recipient or
and Order issued under § 37.112(b) will      information showing the actions taken        grant applicant may file a petition for
be restored, where appropriate, to full      by the grant applicant or recipient to       review of the decision by the Secretary,
eligibility to receive WIA Title I           bring itself into compliance. The grant      setting forth the grounds for its
financial assistance if the grant            applicant or recipient has the burden of     objection to the Director’s decision.
applicant or recipient satisfies the terms   demonstrating that it has satisfied the        (3) The petition must be served on the
and conditions of the Final Decision         requirements of paragraph (a) of this        Director and on the Office of the
and Order and brings itself into             section. While proceedings under this        Solicitor, Civil Rights Division.
compliance with the nondiscrimination        section are pending, sanctions imposed         (4) The Director may file a response
and equal opportunity provisions of          by the Final Decision and Order under        to the petition within 14 days.
WIA and this part.                           § 37.112(b) (1) and (2) must remain in         (5) The Secretary must issue the final
                                             effect.                                      agency decision denying or granting the
   (b) A grant applicant or recipient
                                                (c) The Director must issue a written     recipient’s or grant applicant’s request
adversely affected by a Final Decision
                                             decision on the petition for restoration.    for restoration to eligibility.
and Order issued under § 37.112(b) may
at any time petition the Director to            (1) If the Director determines that the   [FR Doc. 99–28202 Filed 11–10–99; 8:45 am]
restore its eligibility to receive WIA       grant applicant or recipient has not         BILLING CODE 4510–23–P

				
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