10 C.F.R. Subpart C—Regulations Implementing the Age Discrimination Act of 1975, as Amended
Title 10 - Energy
Source: 52 FR 25358, July 7, 1987, unless otherwise noted.
The purpose of this subpart is to set forth NRC policies and procedures under the Age Discrimination Act of 1975 which prohibits discrimination on the basis of age in programs or activities receiving Federal financial assistance. (a) The Age Discrimination Act of 1975 and these regulations apply to any program or activity receiving Federal financial assistance from NRC. (b) The Age Discrimination Act of 1975 and these regulations do not apply to— (1) An age distinction contained in that part of a Federal, State, or local statute or ordinance adopted by an elected, general purpose legislative body that— (i) Provides any benefits or assistance to persons based on age; or (ii) Establishes criteria for participation in age-related terms; or (iii) Describes intended beneficiaries or target groups in age-related terms. (2) Any employment practice of any employer, employment agency, labor organization, or any labor-management joint apprenticeship training program, except for any program or activity receiving Federal financial assistance for public service employment under the Comprehensive Employment and Training Act of 1974 (CETA) (29 U.S.C. 801 et seq.). As used in this subpart: (a) Act means the Age Discrimination Act of 1975, as amended, (title III of Pub. L. 94–135; 89 Stat. 713; 42 U.S.C. 3001 note). (b) Action means any act, activity, policy, rule, standard, or method of administration; or the use of any policy, rule, standard, or method of administration. (c) Age means how old a person is, or the number of elapsed years from the date of a person's birth. (d) Age distinction means any action using age or an age-related term. (e) Age-related term means a word or words which necessarily imply a particular age or range of ages (for example, “children,” “adult,” “older persons,” but not “student”). (f) Subrecipient means any of the entities in the definition of “recipient” to which a recipient extends or passes on Federal financial assistance. A subrecipient is generally regarded as a recipient of Federal financial assistance and has all the duties of a recipient in these regulations.
Title 10: Energy
PART 4—NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE FROM THE COMMISSION
Subpart C—Regulations Implementing the Age Discrimination Act of 1975, as Amended
General
§ 4.301 Purpose and scope.
§ 4.302 Application of this subpart.
§ 4.303 Definitions.
Standards for Determining Age Discrimination
§ 4.311 Rules against age discrimination.
The rules stated in this section are limited by the exceptions contained in §§4.313 and 4.314 of this subpart.
(a) General rule. No person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance.
(b) Specific rules. A recipient may not, in any program or activity receiving Federal financial assistance, directly or through contractual, licensing, or other arrangements use age distinctions or take any other actions which have the effect, on the basis of age, of—
(1) Excluding individuals from, denying them the benefits of, or subjecting them to discrimination under, a program or activity receiving Federal financial assistance, or
(2) Denying or limiting individuals in their opportunity to participate in any program or activity receiving Federal financial assistance.
(c) The specific forms of age discrimination listed in paragraph (b) of this section do not necessarily constitute a complete list.
§ 4.312 Definitions of “normal operation” and “statutory objective”.
For purposes of §§4.313 and 4.314, the terms “normal operation” and “statutory objective” have the following meaning:
(a) Normal operation means the operation of a program or activity without significant changes that would impair its ability to meet its objectives.
(b) Statutory objective means any purposes of a program or activity expressly stated in any Federal statute State statute, or local statute or ordinance adopted by an elected general purpose legislative body.
§ 4.313 Exceptions to the rules against age discrimination. Normal operation or statutory objective of any program or activity.
A recipient is permitted to take an action, otherwise prohibited by §4.311, if the action reasonably takes into account age as a factor necessary to the normal operation or the achievement of any statutory objective of a program or activity. An action reasonably takes into account age as a factor necessary to the normal operation or the achievement of any statutory objective of a program or activity, if—
(a) Age is used as a measure or approximation of one or more other characteristics; and
(b) The other characteristic(s) must be measured or approximated in order for the normal operation of the program or activity to continue, or to achieve any statutory objective of the program or activity; and
(c) The other characteristic(s) can be reasonably measured or approximated by the use of age; and
(d) The other characteristic(s) are impractical to measure directly on an individual basis.
[52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]
§ 4.314 Exceptions to the rule against age discrimination. Reasonable factors other than age.
A recipient is permitted to take an action otherwise prohibited by §4.311 which is based on a factor other than age, even though that action may have a disproportionate effect on persons of different ages. An action may be based on a factor other than age only if the factor bears a direct and substantial relationship to the normal operation of the program or activity or to the achievement of a statutory objective.
§ 4.315 Burden of proof.
The burden of proving that an age distinction or other action falls within the exceptions outlined in §§4.313 and 4.314 is on the recipient of Federal financial assistance.
Duties of NRC Recipients
§ 4.321 Assurance of compliance.
Each NRC recipient has primary responsibility to ensure that its programs or activities are in compliance with the Act and these regulations. Each recipient will sign an assurance of compliance that its programs or activities will be conducted in compliance with all the requirements imposed by the Act and these regulations. A recipient also has responsibility to maintain records, provide information, and to afford access to its records to NRC, to the extent required to determine whether it is in compliance with the Act and these regulations.
[52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]
§ 4.322 Written notice, technical assistance, and educational materials.
(a) NRC will provide written notice to each recipient of its obligations under the Act and these regulations, including its obligation under paragraph (b) of this section.
(b) Where a recipient makes available Federal financial assistance from NRC to a subrecipient, the recipient shall provide the subrecipient written notice of the subrecipient's obligations under the Act and these regulations.
(c) NRC will provide technical assistance, where necessary, to recipients to aid them in complying with the Act and these regulations.
(d) NRC will make available educational materials which set forth the rights and obligations of recipients and beneficiaries under the Act and these regulations.
§ 4.324 Information requirements.
Each recipient shall:
(a) Make available upon request to NRC information necessary to determine whether the recipient is complying with the Act and these regulations.
(b) Permit reasonable access by NRC to the recipient's books, records, accounts, facilities, and other sources of information to the extent necessary to determine whether the recipient is in compliance with the Act and these regulations.
Investigation, Conciliation, and Enforcement Procedures
§ 4.331 Compliance reviews.
(a) NRC may conduct compliance reviews and preaward reviews of recipients or use other similar procedures that will permit it to investigate and correct violations of the Act and these regulations. NRC may conduct these reviews even in absence of a complaint against a recipient. The review may be as comprehensive as necessary to determine whether a violation of these regulations has occurred.
(b) If a compliance review or preaward review indicates a violation of the Act or these regulations, NRC will attempt to achieve voluntary compliance with the Act. If voluntary compliance cannot be achieved, NRC will arrange for enforcement as described in §4.336.
§ 4.332 Complaints.
(a) Any person, individually or as a member of a class or on behalf of others, may file a complaint with NRC, alleging discrimination prohibited by the Act or these regulations based on an action occurring on or after July 1, 1979. A complainant shall file a complaint within 180 days from the date the complainant first had knowledge of the alleged act of discrimination. However, for good cause shown, NRC may extend this time limit.
(b) NRC will attempt to facilitate the filing of complaints wherever possible, including taking the following measures:
(1) Accepting a complaint as sufficient for further processing that—
(i) Is made in writing;
(ii) Alleges a violation of the Act;
(iii) Identifies the parties involved and the date the complainant first had knowledge of the alleged violation;
(iv) Describes generally the action or practice complained of; and
(v) Is signed by the complainant.
(2) Freely permitting a complainant to add information to the complaint to meet the requirements of a sufficient complaint.
(3) Notifying the complainant and the recipient of their rights and obligations under the complaint procedure, including the right to have a representative at all stages of the complaint procedures.
(4) Notifying the complainant and the recipient (or their representatives) of their right to contact NRC for information and assistance regarding the complaint resolution process.
(c) Each recipient and complainant shall participate actively in efforts toward speedy resolution of the complaint.
(d) NRC will return to the complainant any complaint outside the jurisdiction of these regulations, and will state the reason(s) why it is outside the jurisdiction of these regulations.
§ 4.333 Mediation.
(a) Referral of complaints for mediation. NRC will refer to a mediation agency designated by the Secretary of the Department of Health and Human Services all complaints that—
(1) Fall within the jurisdiction of the Act and these regulations; and
(2) Contain all information necessary for further processing.
(b) Both the complainant and the recipient shall participate in the mediation process to the extent necessary to reach an agreement or make an informed judgment that an agreement is not possible. There must be at least one meeting with the mediator before NRC will accept a judgment that an agreement is not possible. However, the recipient and the complainant need not meet with the mediator at the same time.
(c) If the complainant and the recipient reach an agreement, the mediator shall prepare a written statement of the agreement and have the complainant and recipient sign it. The mediator shall send a copy of the agreement to NRC. NRC will take no further action on the complaint unless the complainant or recipient fails to comply with the agreement.
(d) The mediator shall protect the confidentiality of all information obtained in the course of the mediation process. No mediator shall testify in any adjudicative proceeding, produce any document, or otherwise disclose any information obtained in the course of the mediation process without prior approval of the head of the agency appointing the mediator.
(e) NRC will use the mediation process for a maximum of 60 days after receiving a complaint. Mediation ends if—
(1) From the time NRC receives the complaint 60 days elapse; or
(2) Prior to the end of that 60-day period, the mediator determines an agreement is reached; or
(3) Prior to the end of that 60-day period, the mediator determines that an agreement cannot be reached.
(f) The mediator shall return unresolved complaints to NRC.
§ 4.334 Investigation.
(a) Informal investigation. (1) NRC will investigate complaints that are unresolved after mediation or are reopened because of a violation of a mediation agreement.
(2) As part of the initial investigation, NRC will use informal fact-finding methods, including joint or separate discussions with the complaint and recipient to establish the facts and, if possible, settle the complaint on terms that are mutually agreeable to the parties. NRC may seek the assistance of any involved State agency.
(3) NRC will put any agreement in writing and have it signed by the parties and an authorized official at NRC.
(4) The settlement shall not affect the operation of any other enforcement effort of NRC, including compliance reviews and investigation of other complaints which may involve the recipient.
(5) Settlement of a complaint under this section will not constitute a finding of discrimination by the NRC against a recipient or an admission of discrimination by the recipient.
(b) Formal investigation. If NRC cannot resolve the complaint through informal investigation, it will begin to develop formal findings through further investigation of the complaint. If the investigation indicates a violation of these regulations, NRC will attempt to obtain voluntary compliance. If NRC cannot obtain voluntary compliance, it will begin enforcement as described in §4.336.
[52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]
§ 4.335 Prohibition against intimidation or retaliation.
A recipient may not engage in acts of intimidation or retaliation against any person who—
(a) Attempts to assert a right protected by the Act or these regulations; or
(b) Cooperates in any mediation, investigation, hearing, or other part of NRC's investigation, conciliation, and enforcement process.
§ 4.336 Compliance procedure.
(a) NRC may enforce the Act and these regulations through—
(1) Termination of a recipient's Federal financial assistance from NRC under the program or activity involved where the recipient has violated the Act or these regulations. The determination of the recipient's violation may be made only after a recipient has had an opportunity for a hearing on the record before an administrative law judge. Therefore, cases that are settled in mediation, or prior to a hearing, will not involve termination of a recipient's Federal fiancial assistance from NRC.
(2) Any other means authorized by law including but not limited to—
(i) Referral to the Department of Justice for proceedings to enforce any rights of the United States or obligations of the recipients created by the Act or these regulations.
(ii) Use of any requirement of or referral to any Federal, State, or local government agency that will have the effect of correcting a violation of the Act or these regulations.
(b) NRC will limit any termination under §4.336(a)(1) to the particular recipient and particular program or activity NRC finds in violation of Act or these regulations. NRC will not base any part of a termination on a finding with respect to any program or activity of the recipient that does not receive Federal financial assistance from NRC.
(c) NRC will take no action under paragraph (a) until—
(1) The Commission, or designee, has advised the recipient of its failure to comply with the Act or these regulations and has determined that voluntary compliance cannot be obtained.
(2) 30 days have elapsed after the Commission, or designee, has sent a written report of the circumstances and grounds of the action to the committees of the Congress having legislative jurisdiction over the program or activity involved. A report will be filed whenever any action is taken under paragraph (a) of this section.
(d) NRC also may defer granting new Federal financial assistance to a recipient when termination proceedings under §4.336(a)(1) are initiated.
(1) New Federal financial assistance includes all assistance for which NRC requires an application or approval, including renewal or continuation of existing activities or authorization of new activities, during the deferral period. New Federal financial assistance does not include increases in funding as a result of change computation of formula awards or assistance approved prior to the beginning of termination proceedings under §4.336(a)(1).
(2) NRC will not begin a deferral until the recipient has received a notice of an opportunity for a hearing under §4.336(a)(1). NRC will not continue a deferral for more than 60 days unless a hearing has begun within that time or the time for beginning the hearings has been extended by mutual consent of the recipient and NRC. NRC will not continue a deferral for more than 30 days after the close of the hearing, unless the hearing results in a finding against the recipient.
[52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]
§ 4.337 Hearings, decisions, post-termination proceedings.
Certain NRC procedural provisions applicable to title VI of the Civil Rights Act of 1964 apply to NRC enforcement of these regulations. They are §§4.61 through 4.64 and §§4.71 through 4.75.
§ 4.338 Remedial and affirmative action by recipients.
(a) Where NRC finds a recipient has discriminated on the basis of age, the recipient shall take any remedial action that NRC may require to overcome the effects of the discrimination. If another recipient exercises control over the recipient that has discriminated, NRC may require both recipients to take remedial action.
(b) Even in the absence of a finding of discrimination, a recipient may take affirmative action to overcome the effects of conditions that resulted in limited participation in the recipient's program or activity on the basis of age.
(c) If a recipient, operating a program that serves the elderly or children in addition to persons of other ages, provides special benefits to the elderly or to children, the provision of those benefits shall be presumed to be voluntary affirmative action provided that it does not have the effect of excluding otherwise eligible persons from participation in the program or activity.
[52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]
§ 4.339 Alternate funds disbursal procedure.
(a) When NRC withholds funds from a recipient under these regulations, the Commission, or designee, may disburse the withheld funds directly to an alternate recipient, any public or nonprofit private organization or agency, or State or political subdivision of the State.
(b) Any alternative recipient will be required to demonstrate—
(1) The ability to comply with these regulations; and
(2) The ability to achieve the goals of the Federal statute authorizing the Federal financial assistance.
[52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]
§ 4.340 Exhaustion of administrative remedies.
(a) A complainant may file a civil action following the exhaustion of administrative remedies under the Act. Administrative remedies are exhausted if—
(1) 180 days have elapsed since the complainant filed the complaint and NRC has made no finding with regard to the complaint; or
(2) NRC issues any finding in favor of the recipient.
(b) If NRC fails to make a finding within 180 days or issues a finding in favor of the recipient, NRC will—
(1) Promptly advise the complainant; and
(2) Advise the complainant of his or her right to bring a civil action under section 305(e) of the Act of injunctive relief that will effect the purposes of the Act; and
(3) Inform the complainant that—
(i) The complainant may bring a civil action only in a United States District Court for the district in which the recipient is found or transacts business;
(ii) A complainant prevailing in a civil action has the right to be awarded the costs of the action, including reasonable attorney's fees, but that the complainant must demand these costs in the complaint;
(iii) That before commencing the action, the complainant shall give 30 days notice by registered mail to the Commission, the Secretary of the Department of Health and Human Services, the Attorney General of the United States, and the recipient;
(iv) The notice must state the relief requested, the court in which the complainant is bringing the action, and whether or not attorney's fees are demanded in the event the complainant prevails; and
(v) The complainant may not bring an action if the same alleged violation of the Act by the same recipient is the subject of pending action in any court of the United States.
§ 4.341 Reports.
The NRC shall submit to the Secretary of Health and Human Services, not later than December 31 of each year, a report which—
(a) Describes in detail the steps taken during the preceding fiscal year to carry out the Act; and
(b) Contains data on the frequency, type, and resolution of complaints and on any compliance reviews, sufficient to permit analysis of the agency's progress in reducing age discrimination in programs or activities receiving Federal financial assistance from NRC; and
(c) Contains data directly relevant to the extent of any pattern or practice of age discrimination which NRC has identified in any programs or activities receiving Federal financial assistance from NRC and to progress toward eliminating it; and
(d) Contains evaluative or interpretative information which NRC determines is useful in analyzing agency progress in reducing age discrimination in programs or activities receiving Federal financial assistance from NRC; and
(e) Contains whatever other data the Secretary of HHS may require.
[52 FR 25358, July 7, 1987, as amended at 68 FR 51345, Aug. 26, 2003]
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