Law/Statute

§ 42.2

28 CFR Ch. I (7–1–98 Edition)

§ 42.2 Designation of Director of Equal
Employment Opportunity and Complaint Adjudication Officer.
(a) In compliance with the regulations of the Equal Employment Opportunity Commission (29 CFR 1613.204(c)),
the Assistant Attorney General for Administration is hereby designated as
Director of Equal Employment Opportunity for the Department of Justice
with responsibilities for administration of the Equal Employment Opportunity Program within the Department. The Director of Equal Employment Opportunity shall publish and
implement the Department of Justice
regulations, which shall include a positive action program to eliminate
causes of discrimination and shall include procedures for processing complaints of discrimination within the
Department.
(b) The Assistant Attorney General
in charge of the Civil Rights Division
shall appoint a Complaint Adjudication
Officer, who shall render final decisions
for the Department of Justice on complaints of discrimination filed by employees and applicants for employment
in the Department pursuant to the Department’s Equal Employment Opportunity Regulations. In rendering decisions, the Complaint Adjudication Officer shall order such remedial action as
may be appropriate, whether or not
there is a finding of discrimination, but
in cases where no discrimination is
found any remedial action ordered
shall have the prior approval of the Assistant Attorney General in charge of
the Civil Rights Division, who shall
consult with the Deputy Attorney General on the matter.
[Order No. 420–69, 34 FR 12281, July 25, 1969,
as amended by Order No. 721–77, 42 FR 25725,
May 19, 1977; Order No. 731–77, 42 FR 35646,
July 11, 1977; Order No. 899–80, 45 FR 43703,
June 30, 1980; Order No. 960–81, 46 FR 52357,
Oct. 27, 1981]

§ 42.3 Responsibility for Department of
Justice Equal Opportunity Recruitment Program.
The Assistant Attorney General for
Administration shall be responsible for
establishing and implementing the Department of Justice Equal Opportunity

Recruitment Program under 5 U.S.C.
7201.
[Order No. 865–79, 44 FR 77157, Dec. 31, 1979, as
amended by Order No. 960–81, 46 FR 52357,
Oct. 27, 1981]

Subpart B [Reserved]
Subpart C—Nondiscrimination in
Federally Assisted Programs—
Implementation of Title VI of
the Civil Rights Act of 1964 1
AUTHORITY: 42 U.S.C. 2000d–2000d–4; E.O.
12250, 45 FR 72995, 3 CFR, 1980 Comp., p. 298.
SOURCE: Order No. 365–66, 31 FR 10265, July
29, 1966, unless otherwise noted.

§ 42.101

Purpose.

The purpose of this subpart is to implement the provisions of title VI of
the Civil Rights Act of 1964, 78 Stat. 252
(hereafter referred to as the ‘‘Act’’), to
the end that no person in the United
States shall, on the ground of race,
color, or national origin, be excluded
from participation in, be denied the
benefits of, or otherwise be subjected
to discrimination under any program
or activity receiving Federal financial
assistance from the Department of Justice.
§ 42.102

Definitions.

As used in this subpart—
(a) The term responsible Department
official with respect to any program receiving Federal financial assistance
means the Attorney General, or Deputy Attorney General, or such other official of the Department as has been assigned the principal responsibility
within the Department for the administration of the law extending such assistance.
(b) The term United States includes
the several States of the United States,
the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake
Island, the Canal Zone, and all other
territories and possessions of the
United States, and the term State includes any one of the foregoing.
1 See also 28 CFR 50.3. Guidelines for enforcement of Title VI, Civil Rights Act.

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Department of Justice

§ 42.103

(c) The term Federal financial assistance includes:
(1) Grants and loans of Federal funds,
(2) The grant or donation of Federal
property and interests in property,
(3) The detail of Federal personnel,
(4) The sale and lease of, and the permission to use (on other than a casual
or transient basis), Federal property or
any interest in such property without
consideration or at a nominal consideration, or at a consideration which is reduced for the purpose of assisting the
recipient, or in recognition of the public interest to be served by such sale or
lease to the recipient, and
(5) Any Federal agreement, arrangement, or other contract which has as
one of its purposes the provision of assistance.
(d) The term program includes any
program, project, or activity for the
provision of services, financial aid, or
other benefits to individuals (including
education or training, rehabilitation,
or other services or disposition, whether provided through employees of the
recipient of Federal financial assistance or provided by others through
contracts or other arrangements with
the recipient, and including work opportunities and cash or loan or other
assistance to individuals), or for the
provision of facilities for furnishing
services, financial aid, or other benefits to individuals. The disposition,
services, financial aid, or benefits provided under a program receiving Federal financial assistance shall be
deemed to include any disposition,
services, financial aid, or benefits provided with the aid of Federal financial
assistance or with the aid of any nonFederal funds, property, or other resources required to be expended or
made available for the program to
meet matching requirements or other
conditions which must be met in order
to receive the Federal financial assistance, and to include any disposition,
services, financial aid, or benefits provided in or through a facility provided
with the aid of Federal financial assistance or such non-Federal resources.
(e) The term facility includes all or
any portion of structures, equipment,
or other real or personal property or
interests therein, and the provision of
facilities includes the construction, ex-

pansion, renovation, remodeling, alteration, or acquisition of facilities.
(f) The term recipient means any
State, political subdivision of any
State, or instrumentality of any State
or political subdivision, any public or
private agency, institution, or organization, or other entity, or any individual, in any State, to whom Federal financial assistance is extended, directly
or through another recipient, for any
program, including any successor, assign, or transferee thereof, but such
term does not include any ultimate
beneficiary under any such program.
(g) The term primary recipient means
any recipient which is authorized or required to extend Federal financial assistance to another recipient for the
purpose of carrying out a program.
(h) The term applicant means one
who submits an application, request, or
plan required to be approved by a responsible Department official, or by a
primary recipient, as a condition to
eligibility for Federal financial assistance, and the term application means
such an application, request, or plan.
(i) The term academic institution includes any school, academy, college,
university, institute, or other association, organization, or agency conducting or administering any program,
project, or facility designed to educate
or train individuals.
(j) The term disposition means any
treatment, handling, decision, sentencing, confinement, or other prescription
of conduct.
(k) The term governmental organization means the political subdivision for
a prescribed geographical area.
[Order No. 365–66, 31 FR 10265, July 29, 1966,
as amended by Order No. 699–77, 42 FR 15315,
Mar. 21, 1977; Order No. 960–81, 46 FR 52357,
Oct. 27, 1981]

§ 42.103 Application of this subpart.
This subpart applies to any program
for which Federal financial assistance
is authorized under a law administered
by the Department. It applies to money
paid, property transferred, or other
Federal financial assistance extended
under any such program after the date
of this subpart pursuant to an application whether approved before or after
such date. This subpart does not apply
to:

685

§ 42.104

28 CFR Ch. I (7–1–98 Edition)

(a) Any Federal financial assistance
by way of insurance or guaranty contracts, or
(b) Employment practices except to
the extent described in § 42.104(c).
[Order No. 365–66, 31 FR 10265, July 29, 1966,
as amended by Order No. 519–73, 38 FR 17955,
July 5, 1973]

§ 42.104 Discrimination prohibited.
(a) General. No person in the United
States shall, on the ground of race,
color, or national origin be excluded
from participation in, be denied the
benefits of, or be otherwise subjected
to discrimination under any program
to which this subpart applies.
(b) Specific discriminatory actions prohibited. (1) A recipient under any program to which this subpart applies
may not, directly or through contractual or other arrangements, on the
ground of race, color, or national origin:
(i) Deny an individual any disposition, service, financial aid, or benefit
provided under the program;
(ii) Provide any disposition, service,
financial aid, or benefit to an individual which is different, or is provided in
a different manner, from that provided
to others under the program;
(iii) Subject an individual to segregation or separate treatment in any matter related to his receipt of any disposition, service, financial aid, or benefit
under the program;
(iv) Restrict an individual in any way
in the enjoyment of any advantage or
privilege enjoyed by others receiving
any disposition, service, financial aid,
or benefit under the program;
(v) Treat an individual differently
from others in determining whether he
satisfies any admission, enrollment,
quota, eligibility, membership, or
other requirement or condition which
individuals must meet in order to be
provided any disposition, service, financial aid, function or benefit provided under the program; or
(vi) Deny an individual an opportunity to participate in the program
through the provision of services or
otherwise or afford him an opportunity
to do so which is different from that afforded others under the program (including the opportunity to participate
in the program as an employee but

only to the extent set forth in paragraph (c) of this section).
(vii) Deny a person the opportunity
to participate as a member of a planning or advisory body which is an integral part of the program.
(2) A recipient, in determining the
type of disposition, services, financial
aid, benefits, or facilities which will be
provided under any such program, or
the class of individuals to whom, or the
situations in which, such will be provided under any such program, or the
class of individuals to be afforded an
opportunity to participate in any such
program, may not, directly or through
contractual or other arrangements,
utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination
because of their race, color, or national
origin, or have the effect of defeating
or substantially impairing accomplishment of the objectives of the program
as respects individuals of a particular
race, color, or national origin.
(3) In determining the site or location of facilities, a recipient or applicant may not make selections with the
purpose or effect of excluding individuals from, denying them the benefits
of, or subjecting them to discrimination under any program to which this
subpart applies, on the ground of race,
color, or national origin; or with the
purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or
this subpart.
(4) For the purposes of this section
the disposition, services, financial aid,
or benefits provided under a program
receiving Federal financial assistance
shall be deemed to include any portion
of any program or function or activity
conducted by any recipient of Federal
financial assistance which program,
function, or activity is directly or indirectly improved, enhanced, enlarged, or
benefited by such Federal financial assistance or which makes use of any facility, equipment or property provided
with the aid of Federal financial assistance.
(5) The enumeration of specific forms
of prohibited discrimination in this
paragraph and in paragraph (c) of this
section does not limit the generality of

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Department of Justice

§ 42.105

the prohibition in paragraph (a) of this
section.
(6)(i) In administering a program regarding which the recipient has previously discriminated against persons
on the ground of race, color, or national origin, the recipient must take
affirmative action to overcome the effects of prior discrimination.
(ii) Even in the absence of such prior
discrimination, a recipient in administering a program may take affirmative action to overcome the effects of
conditions which resulted in limiting
participation by persons of a particular
race, color, or national origin.
(c) Employment practices. (1) Whenever
a primary objective of the Federal financial assistance to a program to
which this subpart applies, is to provide employment, a recipient of such
assistance may not (directly or
through contractual or other arrangements) subject any individual to discrimination on the ground of race,
color, or national origin in its employment practices under such program (including recruitment or recruitment advertising, employment, layoff, or termination, upgrading, demotion, or
transfer, rates of pay or other forms of
compensation, and use of facilities).
That prohibition also applies to programs as to which a primary objective
of the Federal financial assistance is (i)
to assist individuals, through employment, to meet expenses incident to the
commencement or continuation of
their education or training, or (ii) to
provide work experience which contributes to the education or training of the
individuals involved. The requirements
applicable to construction employment
under any such program shall be those
specified in or pursuant to part III of
Executive Order 11246 or any Executive
order which supersedes it.
(2) In regard to Federal financial assistance which does not have providing
employment as a primary objective,
the provisions of paragraph (c)(1) of
this section apply to the employment
practices of the recipient if discrimination on the ground of race, color, or national origin in such employment practices tends, on the ground of race,
color, or national origin, to exclude
persons from participation in, to deny
them the benefits of or to subject them

to discrimination under the program
receiving Federal financial assistance.
In any such case, the provisions of
paragraph (c)(1) of this section shall
apply to the extent necessary to assure
equality of opportunity to and nondiscriminatory treatment of beneficiaries.
[Order No. 365–66, 31 FR 10265, July 29, 1966,
as amended by Order No. 519–73, 38 FR 17955,
July 5, 1973]

§ 42.105 Assurance required.
(a) General. (1) Every application for
Federal financial assistance to carry
out a program to which this subpart
applies, and every application for Federal financial assistance to provide a
facility shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to
the application, contain or be accompanied by an assurance that the program will be conducted or the facility
operated in compliance with all requirements imposed by or pursuant to
this subpart. In the case where the
Federal financial assistance is to provide or is in the form of personal property, or real property or interest therein or structures thereon, such assurance shall obligate the recipient, or, in
the case of a subsequent transfer, the
transferee, for the period during which
the property is used for a purpose for
which the Federal financial assistance
is extended or for another purpose involving the provision of similar services or benefits, or for as long as the recipient retains ownership or possession
of the property, whichever is longer. In
all other cases, such assurance shall
obligate the recipient for the period
during which Federal financial assistance is extended pursuant to the application. The responsible Department official shall specify the form of the foregoing assurances for each program, and
the extent to which like assurances
will be required of subgrantees, contractors, and subcontractors, transferees, successors in interest, and other
participants in the program. Any such
assurance shall include provisions
which give the United States a right to
seek its judicial enforcement.
(2) In the case of real property, structures or improvements thereon, or interest therein, which was acquired

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§ 42.105

28 CFR Ch. I (7–1–98 Edition)

through a program of Federal financial
assistance, or in the case where Federal financial assistance is provided in
the form of a transfer of real property
or interest therein from the Federal
Government, the instrument effecting
or recording the transfer shall contain
a convenant running with the land assuring nondiscrimination for the period
during which the real property is used
for a purpose for which the Federal financial assistance is extended or for
another purpose involving the provision of similar services or benefits.
Where no transfer of property is involved, but property is improved under
a program of Federal financial assistance, the recipient shall agree to include such a covenant in any subsequent transfer of such property. Where
the property is obtained from the Federal Government, such covenant may
also include a condition coupled with a
right to be reserved by the Department
to revert title to the property in the
event of a breach of the covenant
where, in the discretion of the responsible Department official, such a condition and right of reverter are appropriate to the program under which the
real property is obtained and to the nature of the grant and the grantee.
(b) Assurances from government agencies. In the case of any application from
any department, agency, or office of
any State or local government for Federal financial assistance for any specified purpose, the assurance required by
this section, shall extend to any other
department, agency, or office of the
same governmental unit if the policies
of such other department, agency, or
office will substantially affect the
project for which Federal financial assistance is requested. That requirement may be waived by the responsible
Department official if the applicant establishes, to the satisfaction of the responsible Department official, that the
practices in other agencies of parts or
programs of the governmental unit will
in no way affect:
(1) Its practices in the program for
which Federal financial assistance is
sought, or
(2) The beneficiaries of or participants in or persons affected by such
program, or

(3) Full compliance with the subpart
as respects such program.
(c) Assurance from academic and other
institutions. (1) In the case of any application for Federal financial assistance
for any purpose to an academic institution, the assurance required by this
section shall extend to admission practices and to all other practices relating
to the treatment of students.
(2) The assurance required with respect to an academic institution, detention or correctional facility, or any
other institution or facility, insofar as
the assurance relates to the institution’s practices with respect to admission or other treatment of individuals
as students, patients, wards, inmates,
persons subject to control, or clients of
the institution or facility or to the opportunity to participate in the provision of services, disposition, treatment,
or benefits to such individuals, shall be
applicable to the entire institution or
facility unless the applicant establishes, to the satisfaction of the responsible Department official, that the
practices in designated parts or programs of the institution or facility will
in no way affect its practices in the
program of the institution or facility
for which Federal financial assistance
is sought, or the beneficiaries of or participants in such program. If, in any
such case, the assistance sought is for
the construction of a facility or part of
a facility, the assurance shall in any
event extend to the entire facility and
to facilities operated in connection
therewith.
(d) Continuing State programs. Any
State or State agency administering a
program which receives continuing
Federal financial assistance subject to
this regulation shall as a condition for
the extension of such assistance:
(1) Provide a statement that the program is (or, in the case of a new program, will be) conducted in compliance
with this regulation, and
(2) Provide for such methods of administration as are found by the responsible Department official to give
reasonable assurance that the primary
recipient and all other recipients of
Federal financial assistance under such

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Department of Justice

§ 42.107

program will comply with this regulation.
[Order No. 365–66, 31 FR 10265, July 29, 1966,
as amended by Order No. 519–73, 38 FR 17955,
July 5, 1973]

§ 42.106 Compliance information.
(a) Cooperation and assistance. Each
responsible Department official shall,
to the fullest extent practicable, seek
the cooperation of recipients in obtaining compliance with this subpart and
shall provide assistance and guidance
to recipients to help them comply voluntarily with this subpart.
(b) Compliance reports. Each recipient
shall keep such records and submit to
the responsible Department official or
his designee timely, complete, and accurate compliance reports at such
times, and in such form and containing
such information, as the responsible
Department official or his designee
may determine to be necessary to enable him to ascertain whether the recipient has complied or is complying
with this subpart. In general, recipients should have available for the Department racial and ethnic data showing the extent to which members of minority groups are beneficiaries of federally assisted programs. In the case of
any program under which a primary recipient extends Federal financial assistance to any other recipient or subcontracts with any other person or
group, such other recipient shall also
submit such compliance reports to the
primary recipient as may be necessary
to enable the primary recipient to
carry out its obligations under this
subpart.
(c) Access to sources of information.
Each recipient shall permit access by
the responsible Department official or
his designee during normal business
hours to such of its books, records, accounts, and other sources of information, and its facilities, as may be pertinent to ascertain compliance with this
subpart. Whenever any information required of a recipient is in the exclusive
possession of any other agency, institution, or person and that agency, institution, or person fails or refuses to furnish that information, the recipient
shall so certify in its report and set
forth the efforts which it has made to
obtain the information.

(d) Information to beneficiaries and
participants. Each recipient shall make
available to participants, beneficiaries,
and other interested persons such information regarding the provisions of
this subpart and its applicability to the
program under which the recipient receives Federal financial assistance, and
make such information available to
them in such manner, as the responsible Department official finds necessary to apprise such persons of the
protections against discrimination assured them by the Act and this subpart.
[Order No. 365–66, 31 FR 10265, July 29, 1966,
as amended by Order No. 519–73, 38 FR 17955,
July 5, 1973]

§ 42.107

Conduct of investigations.

(a) Periodic compliance reviews. The responsible Department official or his
designee shall from time to time review the practices of recipients to determine whether they are complying
with this subpart.
(b) Complaints. Any person who believes himself or any specific class of
individuals to be subjected to discrimination prohibited by this subpart may
by himself or by a representative file
with the responsible Department official or his designee a written complaint. A complaint must be filed not
later than 180 days from the date of the
alleged discrimination, unless the time
for filing is extended by the responsible
Department official or his designee.
(c) Investigations. The responsible Department official or his designee will
make a prompt investigation whenever
a compliance review, report, complaint, or any other information indicates a possible failure to comply with
this subpart. The investigation should
include, whenever appropriate, a review of the pertinent practices and
policies of the recipient, the circumstances under which the possible
noncompliance with this subpart occurred, and other factors relevant to a
determination as to whether the recipient has failed to comply with this subpart.
(d) Resolution of matters. (1) If an investigation pursuant to paragraph (c)
of this section indicates a failure to

689

§ 42.108

28 CFR Ch. I (7–1–98 Edition)

comply with this subpart, the responsible Department official or his designee will so inform the recipient and
the matter will be resolved by informal
means whenever possible. If it has been
determined that the matter cannot be
resolved by informal means, action will
be taken as provided for in § 42.108.
(2) If an investigation does not warrant action pursuant to paragraph
(d)(1) of this section, the responsible
Department official or his designee will
so inform the recipient and the complainant, if any, in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or other person
shall intimidate, threaten, coerce, or
discriminate against any individual for
the purpose of interfering with any
right or privilege secured by section 601
of the Act or this subpart, or because
he has made a complaint, testified, assisted, or participated in any manner
in an investigation, proceeding, or
hearing under this subpart. The identity of complainants shall be kept confidential except to the extent necessary
to carry out the purpose of this subpart, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.
[Order No. 365–66, 31 FR 10265, July 29, 1966,
as amended by Order No. 519–73, 38 FR 17955,
July 5, 1973]

§ 42.108 Procedure for effecting compliance.
(a) General. If there appears to be a
failure or threatened failure to comply
with this subpart and if the noncompliance or threatened noncompliance cannot be corrected by informal means,
the responsible Department official
may suspend or terminate, or refuse to
grant or continue, Federal financial assistance, or use any other means authorized by law, to induce compliance
with this subpart. Such other means
include, but are not limited to:
(1) Appropriate proceedings brought
by the Department to enforce any
rights of the United States under any
law of the United States (including
other titles of the Act), or any assurance or other contractual undertaking,
and
(2) Any applicable proceeding under
State or local law.

(b) Noncompliance with assurance requirement. If an applicant or recipient
fails or refuses to furnish an assurance
required under § 42.105, or fails or refuses to comply with the provisions of
the assurance it has furnished, or otherwise fails or refuses to comply with
any requirement imposed by or pursuant to title VI or this subpart, Federal
financial assistance may be suspended,
terminated, or refused in accordance
with the procedures of title VI and this
subpart. The Department shall not be
required to provide assistance in such a
case during the pendency of administrative proceedings under this subpart,
except that the Department will continue assistance during the pendency of
such proceedings whenever such assistance is due and payable pursuant to a
final commitment made or an application finally approved prior to the effective date of this subpart.
(c) Termination of or refusal to grant or
to continue Federal financial assistance.
No order suspending, terminating, or
refusing to grant or continue Federal
financial assistance shall become effective until:
(1) The responsible Department official has advised the applicant or recipient of his failure to comply and has determined that compliance cannot be
secured by voluntary means,
(2) There has been an express finding
on the record, after opportunity for
hearing, of a failure by the applicant or
recipient to comply with a requirement
imposed by or pursuant to this subpart,
(3) The action has been approved by
the Attorney General pursuant to
§ 42.110, and
(4) The expiration of 30 days after the
Attorney General has filed with the
committee of the House and the committee of the Senate having legislative
jurisdiction over the program involved,
a full written report of the circumstances and the grounds for such
action.
Any action to suspend or terminate or
to refuse to grant or to continue Federal financial assistance shall be limited to the particular political entity,
or part thereof, or other applicant or
recipient as to whom such a finding has
been made and shall be limited in its
effect to the particular program, or

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§ 42.109

part thereof, in which such noncompliance has been so found.
(d) Other means authorized by law. No
action to effect compliance by any
other means authorized by law shall be
taken until:
(1) The responsible Department official has determined that compliance
cannot be secured by voluntary means,
(2) The action has been approved by
the Attorney General, and
(3) The recipient or other person has
been notified of its failure to comply
and of the action to be taken to effect
compliance.
§ 42.109 Hearings.
(a) Opportunity for hearing. Whenever
an opportunity for a hearing is required by § 42.108(c), reasonable notice
shall be given by registered or certified
mail, return receipt requested, to the
affected applicant or recipient. That
notice shall advise the applicant or recipient of the action proposed to be
taken, the specific provision under
which the proposed action against it is
to be taken, and the matters of fact or
law asserted as the basis for that action. The notice shall (1) Fix a date,
not less than 20 days after the date of
such notice, within which the applicant
or recipient may request that the responsible Department official schedule
the matter for hearing, or (2) advise
the applicant or recipient that a hearing concerning the matter in question
has been scheduled and advise the applicant or recipient of the place and
time of that hearing. The time and
place so fixed shall be reasonable and
shall be subject to change for cause.
The complainant, if any, shall be advised of the time and place of the hearing. An applicant or recipient may
waive a hearing and submit written information and argument for the record.
The failure of an applicant or recipient
to request a hearing under this paragraph or to appear at a hearing for
which a date has been set shall be
deemed to be a waiver of the right to a
hearing afforded by section 602 of the
Act and § 42.108(c) and consent to the
making of a decision on the basis of
such information as is available.
(b) Time and place of hearing. Hearings shall be held at the offices of the
Department in Washington, DC, at a

time fixed by the responsible Department official, unless he determines
that the convenience of the applicant
or recipient or of the Department requires that another place be selected.
Hearings shall be held before the responsible Department official or, at his
discretion, before a hearing examiner
designated in accordance with 5 U.S.C.
3105 and 3344 (section 11 of the Administrative Procedure Act).
(c) Right to counsel. In all proceedings
under this section, the applicant or recipient and the Department shall have
the right to be represented by counsel.
(d) Procedures, evidence, and record. (1)
The hearing, decision, and any administrative review thereof shall be conducted in conformity with 5 U.S.C. 554–
557 (sections 5–8 of the Administrative
Procedure Act), and in accordance with
such rules of procedure as are proper
(and not inconsistent with this section)
relating to the conduct of the hearing,
giving of notices subsequent to those
provided for in paragraph (a) of this
section, taking of testimony, exhibits,
arguments and briefs, requests for findings, and other related matters. Both
the Department and the applicant or
recipient shall be entitled to introduce
all relevant evidence on the issues as
stated in the notice for hearing or as
determined by the officer conducting
the hearing.
(2) Technical rules of evidence shall
not apply to hearings conducted pursuant to this subpart, but rules or principles designed to assure production of
the most credible evidence available
and to subject testimony to test by
cross-examination shall be applied
whenever reasonably necessary by the
officer conducting the hearing. The
hearing officer may exclude irrelevant,
immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record
shall be open to examination by the
parties and opportunity shall be given
to refute facts and arguments advanced
on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the
record. All decisions shall be based
upon the hearing record and written
findings shall be made.

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§ 42.110

28 CFR Ch. I (7–1–98 Edition)

(e) Consolidated or joint hearings. In
cases in which the same or related
facts are asserted to constitute noncompliance with this subpart with respect to two or more programs to
which this subpart applies, or noncompliance with this subpart and the
regulations of one or more other Federal Departments or agencies issued
under title VI of the Act, the Attorney
General may, by agreement with such
other departments or agencies, whenever appropriate, provide for the conduct of consolidated or joint hearings,
and for the application to such hearings of rules of procedure not inconsistent with this subpart. Final decisions
in such cases, insofar as this subpart is
concerned, shall be made in accordance
with § 42.110.
[Order No. 365–66, 31 FR 10265, July 29, 1966,
as amended by Order No. 519–73, 38 FR 17955,
July 5, 1973]

§ 42.110 Decisions and notices.
(a) Decisions by person other than the
responsible Department official. If the
hearing is held by a hearing examiner,
such hearing examiner shall either
make an initial decision, if so authorized, or certify the entire record, including his recommended findings and
proposed decision, to the responsible
Department official for a final decision, and a copy of such initial decision
or certification shall be mailed to the
applicant or recipient. Whenever the
initial decision is made by the hearing
examiner, the applicant or recipient
may, within 30 days of the mailing of
such notice of initial decision, file with
the responsible Department official his
exceptions to the initial decision, with
his reasons therefor. In the absence of
exceptions, the responsible Department
official may on his own motion, within
45 days after the initial decision, serve
on the applicant or recipient a notice
that he will review the decision. Upon
filing of such exceptions, or of such notice of review, the responsible Department official shall review the initial
decision and issue his own decision
thereon including the reasons therefor.
In the absence of either exceptions or a
notice of review the initial decision
shall constitute the final decision of
the responsible Department official.

(b) Decisions on the record or on review
by the responsible Department official.
Whenever a record is certified to the
responsible Department official for decision or he reviews the decision of a
hearing examiner pursuant to paragraph (a) of this section, or whenever
the responsible Department official
conducts the hearing, the applicant or
recipient shall be given a reasonable
opportunity to file with him briefs or
other written statements of its contentions, and a copy of the final decision
of the responsible Department official
shall be given in writing to the applicant or recipient and to the complainant, if any.
(c) Decisions on the record whenever a
hearing is waived. Whenever a hearing
is waived pursuant to § 42.109(a), a decision shall be made by the responsible
Department official on the record and a
copy of such decision shall be given in
writing to the applicant or recipient,
and to the complainant, if any.
(d) Rulings required. Each decision of
a hearing officer or responsible Department official shall set forth his ruling
on each findings, conclusion, or exception presented, and shall identify the
requirement or requirements imposed
by or pursuant to this subpart with
which it is found that the applicant or
recipient has failed to comply.
(e) Approval by Attorney General. Any
final decision of a responsible Department official (other than the Attorney
General) which provides for the suspension or termination of, or the refusal to
grant or continue Federal financial assistance, or the imposition of any other
sanction available under this subpart
or the Act, shall promptly be transmitted to the Attorney General, who may
approve such decision, vacate it, or
remit or mitigate any sanction imposed.
(f) Content of orders. The final decision may provide for suspension or termination of, or refusal to grant or continue, Federal financial assistance, in
whole or in part, under the program involved, and may contain such terms,
conditions, and other provisions as are
consistent with, and will effectuate the
purposes of, the Act and this subpart,
including provisions designed to assure
that no Federal financial assistance
will thereafter be extended under such

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§ 42.112

program to the applicant or recipient
determined by such decision to be in
default in its performance of an assurance given by it pursuant to this subpart, or to have otherwise failed to
comply with this subpart, unless and
until, it corrects its noncompliance
and satisfies the responsible Department official that it will fully comply
with this subpart.
(g) Post-termination proceedings. (1) An
applicant or recipient adversely affected by an order issued under paragraph (f) of this section shall be restored to full eligibility to receive Federal financial assistance if it satisfies
the terms and conditions of that order
for such eligibility or if it brings itself
into compliance with this subpart and
provides reasonable assurance that it
will fully comply with this subpart.
(2) Any applicant or recipient adversely affected by an order entered
pursuant to paragraph (f) of this section may at any time request the responsible Department official to restore fully its eligibility to receive
Federal financial assistance. Any such
request shall be supported by information showing that the applicant or recipient has met the requirements of
paragraph (g)(1) of this section. If the
responsible Department official denies
any such request, the applicant or recipient may submit a request for a
hearing in writing, specifying why it
believes such official to have been in
error. It shall thereupon be given an
expeditious hearing, with a decision on
the record, in accordance with rules of
procedure issued by the responsible Department official. The applicant or recipient will be restored to such eligibility if it proves at such a hearing
that it satisfied the requirements of
paragraph (g)(1) of this section. While
proceedings under this paragraph are
pending, sanctions imposed by the
order issued under paragraph (f) of this
section shall remain in effect.
[Order No. 365–66, 31 FR 10265, July 29, 1966,
as amended by Order No. 519–73, 38 FR 17956,
July 5, 1973]

§ 42.111

Judicial review.

Action taken pursuant to section 602
of the Act is subject to judicial review
as provided in section 603 of the Act.
§ 42.112 Effect on other regulations;
forms and instructions.
(a) Effect on other regulations. Nothing
in this subpart shall be deemed to supersede any provision of subpart A or B
of this part or Executive Order 11114 or
11246, as amended, or of any other regulation or instruction which prohibits
discrimination on the ground of race,
color, or national origin in any program or situation to which this subpart is inapplicable, or which prohibits
discrimination on any other ground.
(b) Forms and instructions. Each responsible Department official, other
than the Attorney General or Deputy
Attorney General, shall issue and
promptly make available to interested
persons forms and detailed instructions
and procedures for effectuating this
subpart as applied to programs to
which this subpart applies and for
which he is responsible.
(c) Supervision and coordination. The
Attorney General may from time to
time assign to officials of the Department, or to officials of other departments or agencies of the Government,
with the consent of such departments
or agencies, responsibilities in connection with the effectuation of the purposes of title VI of the Act and this
subpart (other than responsibility for
final decision as provided in § 42.110(e)),
including the achievement of the effective coordination and maximum uniformity within the Department and
within the Executive Branch of the
Government in the application of title
VI of the Act and this subpart to similar programs and in similar situations.
Any action taken, determination made,
or requirement imposed by an official
of another Department or agency acting pursuant to an assignment of responsibility under this subsection shall

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28 CFR Ch. I (7–1–98 Edition)

have the same effect as though such action had been taken by the Attorney
General.
[Order No. 365–66, 31 FR 10265, July 29, 1966,
as amended by Order No. 519–73, 38 FR 17956,
July 5, 1973; Order No. 568–74, 39 FR 18646,
May 29, 1974]

APPENDIX A TO SUBPART C—FEDERAL
FINANCIAL ASSISTANCE ADMINISTERED BY THE DEPARTMENT OF JUSTICE TO WHICH THIS SUBPART APPLIES

NOTE: Failure to list a type of Federal assistance in appendix A shall not mean, if
title VI is otherwise applicable, that a program is not covered.
1. Assistance provided by the Office of Justice Programs (OJP), the Bureau of Justice
Assistance (BJA), the National Institute of
Justice (NIJ), the Bureau of Justice Statistics (BJS), and the Office of Juvenile Justice
and Delinquency Prevention (OJJDP), including block, formula, and discretionary
grants, victim compensation payments, and
victim assistance grants (title I of the Omnibus Crime Control and Safe Streets Act of
1968, 42 U.S.C. 3701–3796, as amended (Pub. L.
90–351, as amended by Pub. L. 93–83, Pub. L.
93–415, Pub. L. 94–430, Pub. L. 94–503, Pub. L.
95–115, Pub. L. 96–157, and Pub. L. 98–473); the
Juvenile Justice and Delinquency Prevention Act of 1974, 42 U.S.C. 5601–5751, as
amended (Pub. L. 93–415, as amended by Pub.
L. 94–503, Pub. L. 95–115, Pub. L. 96–509, and
Pub. L. 98–473); the Victims of Crime Act of
1984, 42 U.S.C. 10601–10604, (Pub. L. 98–473)).
2. Assistance provided by the Bureau of
Prisons (BOP) including technical assistance
to State and local governments for improvement of correctional systems; training of law
enforcement personnel, and assistance to
legal services programs (18 U.S.C. 4042).
3. Assistance provided by the National Institute of Corrections (NIC) including training, grants, and technical assistance to State
and local governments, public and private
agencies, educational institutions, organizations and individuals, in the area of corrections (18 U.S.C. 4351–4353).
4. Assistance provided by the Drug Enforcement Administration (DEA) including
training, joint task forces, information sharing agreements, cooperative agreements, and
logistical support, primarily to State and
local government agencies (21 U.S.C. 871–886).
5. Assistance provided by the Community
Relations Service (CRS) in the form of discretionary grants to public and private agencies under the Cuban-Haitian Entrant Program (title V of the Refugee Education Assistance Act of 1980, Pub. L. 96–422).
6. Assistance provided by the U.S. Parole
Commission in the form of workshops and

training programs for State and local agencies and public and private organizations (18
U.S.C. 4204).
7. Assistance provided by the Federal Bureau of Investigation (FBI) including field
training, training through its National Academy, National Crime Information Center,
and laboratory facilities, primarily to State
and local criminal justice agencies (Omnibus
Crime Control and Safe Streets Act of 1968,
as amended 42 U.S.C. 3701–3796).
8. Assistance provided by the Immigration
and Naturalization Service (INS) including
training and services primarily to State and
local governments under the Alien Status
Verification Index (ASVI); and citizenship
textbooks and training primarily to schools
and public and private service agencies (8
U.S.C. 1360, 8 U.S.C. 1457).
9. Assistance provided by the United States
Marshals Service through its Cooperative
Agreement Program for improvement of
State and local correctional facilities (Pub.
L. 99–180, 99 Stat. 1142).
10. Assistance provided by the Attorney
General through the Equitable Transfer of
Forfeited Property Program (Equitable
Sharing) primarily to State and local law enforcement agencies (21 U.S.C. 881(e)).
11. Assistance provided by the Department
of Justice participating agencies that conduct specialized training through the National Center for State and Local Law Enforcement Training, a component of the Federal Law Enforcement Training Center
(FLETC), Glenco, Georgia (Pursuant to
Memorandum Agreement with the Department of Treasury).
[Order No. 1204–87, 52 FR 24449, July 1, 1987]

Subpart D—Nondiscrimination in
Federally Assisted Programs—
Implementation of Section
815(c)(1) of the Justice System Improvement Act of 1979
AUTHORITY: Secs. 802(a), 815(c), and 817(d) of
the Justice System Improvement Act of 1979,
42 U.S.C. 3701, et seq., as amended (Pub. L. 90–
351, as amended by Pub. L. 93–83, Pub. L. 93–
415, Pub. L. 94–503, and Pub. L. 96–157 (December 27, 1979) (JSIA) and Sec. 262 of the
Juvenile Justice and Delinquency Prevention Act of 1974, as amended, 42 U.S.C. 5672
(Pub. L. 93–415, as amended by Pub. L. 95–
115)).
SOURCE: 45 FR 28705, Apr. 30, 1980, unless
otherwise noted.

§ 42.201

Purpose and application.

(a) The purpose of this subpart is to
implement the provisions of section

694