which have or may have the effect of defeating or substantially impairing accomplishment of the objectives of the program or activity with respect to individuals of a particular race, color, or national origin.

(3) In any program receiving financial assistance in the form, or for acquisition, of real property or an interest in real property, to the extent that rights to space on, over, or under any such property are included as part of the program receiving that assistance, the nondiscrimination requirement of this part shall extend to any facility located wholly or in part in that space during the period of time stated in § 7.6(a)(2).

(4) The enumeration of specific forms of prohibited discrimination in this paragraph does not limit the generality of the prohibition in paragraph (a) of this section.

(c) Employment practices. (1) Where a primary objective of a program receiving Federal financial assistance to which this part applies is to provide employment, a recipient or other person or entity subject to this part shall not discriminate, directly or indirectly, on the ground of race, color, or national origin in its employment practices under such program. Employment practices include recruitment, recruitment advertising, employment, layoff, termination, firing, upgrading, demotion, transfer, rates of pay, or other forms of compensation or benefits, selection for training or apprenticeship, use of facilities, and treatment of employees. Each recipient shall take affirmative steps to insure that applicants are employed and employees are treated during employment without regard to race, color, or national origin. Where this part applies to construction employment, the applicable requirements shall be those specified in or pursuant to Part III of Executive Order 11246, as amended, or any Executive order which may supersede 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.

(d) Site selection. A recipient may not make a selection of a site or location of a facility if the purpose of that selection, or its effect when made, is to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program or activity to which this rule applies, on the ground of race, color, or national origin.

(e) Construction projects. An EPA grantee of funds for the location, design, or construction of a demonstration facility or sewage treatment plant may not deny access to, or use of, the facility being constructed or the system of which it is a part of, to any person on the basis of race, color, or national origin. [38 FR 17968, July 5, 1973, as amended at 41 FR 20655, May 20, 1976]

(a) Each applicant or recipient must take reasonable steps to remove or overcome the consequences of prior discrimination and to accomplish the purposes of the Act where previous practice or usage has in purpose or effect tended to exclude individuals from participation in, deny them the benefits of, or subject them to discrimination under any program or activity to which this part applies, on the ground of race, color, or national origin.

(b) 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, or denying benefits to, persons of a particular race, color, or national origin.

(a) General-(1) Form of assurance. Every application for Federal financial assistance to a program to which this part 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 part, and that the applicant shall take affirmative steps to insure equal opportunity and shall periodically evaluate its perform

ance. 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 express consent to judicial enforcement by the United States.

(2) Duration of assurance. In cases where the Federal financial assistance is to provide or is in the form of either personal property or real property or any interest therein or structure thereon, the assurance shail obligate the recipient or in the case of a subsequent transfer, the transferee, for the period during which the property is used for any purpose for which the Federal financial assistance is or was 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 the assurance shall obligate the recipient for the period during which Federal financial assistance is extended to the program.

(3) Assistance for construction. In the case where the assistance is sought for the construction of a facility, or a part of a facility, the assurance shall in any event extend to the entire facility and to facilities operated in connection therewith. In particular, if a facility to be constructed is part of a larger system, the assurance shall extend to the larger system.

(4) Assistance through transfer of real property. Where Federal financial assistance is provided in the form of a transfer from the Federal Government of real property, structures, any improvements thereon, or any interest therein, the instrument effecting or recording the transfer shall contain a covenant running with the land assuring nondiscrimination for the period for which the real property is used for a purpose for which the Federal financial assistnace is or was extended or for another purpose involving the provision of similar services or benefits. Where no transfer of property or an interest therein from the Federal Government is involved, but property is acquired or improved under a program of Federal financial assistance, the recipient shall agree to include such a covenant in any subsequent transfer of such property. When the property is obtained from the Federal Government, the covenant may also include a condition coupled with a right to be reserved

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by the Agency to revert title to the property in the event of a breach of the covenant. Such a condition and right of reverter may be included in covenants for any grants or other assistance that the Administrator in his discretion deems appropriate for such treatment. In such event if a transferee of real property proposes to mortgage or otherwise encumber the real property as security for financing construction of new, or improvement of existing, facilities on such property for the purposes for which the property was transferred, the Administrator may agree, upon request of the transferee and if necessary to accomplish such financing, and upon such conditions as he deems appropriate, to subordinate such right of reversion to the lien of such mortgage or other encumbrance.

(b) Continuing State programs. Every application by a State or a State agency to carry out a program involving continuing Federal financial assistance to which this part applies shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to the application, (1) contain or be accompanied by a statement that that program is (or, in the case of a new program, will be) conducted in compliance with all requirements imposed by or under this part, and (2) provide or be accompanied by provision for such methods of administration for the program as are found by the Administrator to give reasonable assurance that the applicant and all recipients of Federal financial assistance under such program will comply with all requirements imposed by or under this part.

(c) Assurances from educational institutions. In the case of any application for Federal financial assistance to an institution of higher education, the assurance required by this section shall extend to admission practices and to all other practices relating to the treatment of students.

§ 7.7 Compliance information.

(a) Cooperation and assistance. Each responsible Agency official shall seek the cooperation of recipients and applicants in obtaining compliance with this part and shall provide assistance and guidance to recipients and applicants to help them comply voluntarily with this part.

(b) Compliance reports. Each recipient or applicant shall keep such records and submit to the responsible Agency

official or his designee timely, complete. and accurate compliance reports at such times, in such form, and containing such information, as the responsible Agency official or his designee may determine to be necessary or useful to enable the Agency to ascertain whether the recipient or applicant has complied or is complying with this part. Recipients and applicants shall have available for Agency officials on request racial/ethnic and national origin data showing the extent to which minorities are or will be beneficiaries of the assistance. In the case of any program under which a primary recipient extends or will extend Federal financial assistance to any other recipient such other recipient shall submit such compliance reports to the primary recipient as may be necessary or useful to enable the primary recipient to carry out its obligations as a recipient or applicant under this part.

(c) Access to source of information. Each recipient shall permit access by the responsible Agency official or his designee during normal business hours to such of its facilities, books, records, accounts, and other sources of information as may be relevant to a determination of whether or not the recipient is complying with this part. Where any information required of a recipient is in the exclusive possession of any other agency, institution, or person and such agency, institution, or person fails or refuses to furnish this information, the recipient shall so certify in its report and shall set forth what efforts it had made to obtain the information.

(d) Information to beneficiaries and participants. Each recipient shall make available to participants, beneficiaries, and other interested persons any information pertinent to the provisions of this part and its applicability to the program receiving Federal financial assistance which is necessary or useful to apprise such persons of the protections against discrimination assured them by the Act and by this part.

Administrator a written complaint. This complaint should be filed as promptly as possible after the date of the alleged discrimination.

(c) Investigations. The Administrator will make a prompt investigation whenever a compliance review, report, complaint, or any other information indicates a possible failure to comply with this part. The investigation will include, where appropriate, a review of the pertinent practices and policies of the recipient, the circumstances under which the possible noncompliance with this part occurred, and other factors relevant to a determination of whether the recipient has failed to comply with this part.

(d) Resolution of investigations. (1) If an investigation indicates a failure to comply with this part, the Administrator will so inform the recipient and conaplainant, if any, in writing, and the matter will be resolved by informal means whenever possible. If the Administrator determines that the matter cannot be resolved by informal means, action will be taken as provided for in § 7.9.

(2) If an investigation does not warrant action pursuant to paragraph (d) (1) of this section, the Administrator will so inform the recipient and 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 the Act or by this part, or because he or she has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part. The Administrator or his designee may agree to keep confidential the identity of any complainant except to the extent that disclosure would be required by law in proceedings for the enforcement of this part.

[38 FR 17968, July 5, 1973, as amended at 41 FR 20655, May 29, 1976]

§ 7.9 Procedure for obtaining compli

ance.

(a) General. If compliance with this part cannot be assured by informal means, compliance with this part shall be effected by termination of or refusal to grant or to continue Federal assistance in accordance with the procedures of paragraph (b) of this section, or by any other means authorized by law in accordance with the procedures of paragraph (c) of this section. Such other means in

clude, but are not limited to, (1) a referral of the matter to the Department of Justice with a recommendation that appropriate judicial proceedings be brought to enforce any rights of the United States under any law or assurance or contractual undertaking, and (2) any applicable proceeding under State or local law. A decision to take action under this section shall conform with "Guidelines for the enforcement of Title VI, Civil Rights Act of 1964," 28 CFR 50.3.

(b) Procedure for termination or refusal to grant or continue assistance. An order terminating or refusing to grant or continue Federal assistance shall become effective only after:

(1) The Administrator has advised the applicant or recipient of its 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 reciplent to comply with a requirement imposed by or under this part;

(3) The action has been approved by the Administrator pursuant to § 7.11(e); and

(4) The expiration of 30 days after the Administrator has filed with the Committee of the House and the Committee of the Senate having legislative jurisdiction over the program or activity involved, a full written report of the circumstances and the grounds for such action.

The termination or refusal to grant or continue assistance shall be limited to the particular political entity, or part thereof, or other recipient as to which a finding of noncompliance with title VI has been made and shall be limited in its effect to the particular program or part thereof in which such noncompliance has been so found.

(c) Other means authorized by law. No action to effect compliance with title VI of the Act by any other means authorized by law shall be taken until:

(1) The Administrator has determined that compliance cannot be secured by voluntary means, and the recipient or other person against whom action will be sought has been notified of such determination; and

(2) The expiration of at least 10 days from the mailing of such notice to the recipient or such other person. During

this period of at least 10 days, additional efforts may be made to persuade the recipient or such other person to take such corrective action as may be appropriate. § 7.10 Hearings.

(a) Opportunity for hearing. Whenever an opportunity for a hearing is required by § 7.9 (b), reasonable notice shall be given by certified mail, return receipt requested, to the affected applicant or recipient. This notice shall fix a date not less than 3 weeks after the date of receipt of such notice within which the applicant or recipient may file with the Administrator a request in writing that the matter be scheduled for 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 under section 602 of th Act and § 7.9 (b) 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 Agency in Washington, D.C., unless the Administrator determines that the convenience of the applicant or recipient or of the Agency requires that another place be selected. Hearings shall be held at a time fixed by the Administrator before an administrative law judge appointed in accordance with section 3105 of title 5, United States Code, or detailed under section 3344 of title 5, United States Code.

(c) Right to counsel. In any proceeding under this section, the applicant or recipient and the Agency 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 (1970).

(2) Technical rules of evidence do not apply to hearings conducted pursuant to this part, 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 where reasonably necessary by the officer conducting the hearing. A transcript shall be made of the oral evi

dence 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.

(e) Consolidated or joint hearings. In cases in which the same or related facts are asserted to constitute either (1) noncompliance with this part with respect to two or more types of Federal financial assistance to which this part applies, or (2) noncompliance with both this part and the regulations of one or more other Federal departments or agencies issued under title VI of the Act, the Administrator may, by agreement where necessary with such other departments or agencies, provide for the conduct of consolidated or joint hearings, and for the application to such hearings of rules or procedures not inconsistent with this part. Final decisions in such cases, insofar as this Agency is concerned, shall be made in accordance with § 7.11. [38 FR 17968, July 5, 1973, as amended at 41 FR 20655, May 20, 1976]

§ 7.11 Decisions and notices.

(a) Procedure on decisions by an administrative law judge. The administrative law judge shall make an initial decision, including his recommended findings and proposed decision, and a copy of such initial decision shall be mailed by certified mail (return receipt requested) to the applicant or recipient. The applicant or recipient may, within 30 days after the receipt of such notice of initial decision, file with the Administrator his exceptions to the initial decision, and his reasons therefor. In the absence of exceptions, the Administrator 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 the filing of such exceptions or of notice of review, the Administrator 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, subject to paragraph (e) of this section, constitute the final decision of the Administrator.

(b) Decisions on record on review by the Administrator. Whenever the Administrator reviews the decision of an administrative law judge pursuant to paragraph (a) of this section, the applicant or recipient, the Agency officials responsible, and the complainant, if any,

shall be given reasonable opportunity to file with him briefs or other written statements of their contentions, and a written copy of the final decision of the Administrator shall be sent to the applicant or recipient and to the complainant, if any.

(c) Decisions on record where a hearing is waived. Whenever a hearing is waived pursuant to § 7.10(a), a decision shall be made by the Administrator on the record and a written copy of such decision shall be sent to the applicant or recipient, and to the complainant, if any.

(d) Rulings required. Each decision of an administrative law judge shall set forth his ruling on each finding, conclusion, or exception presented, and shall identify the requirement or requirements imposed by or pursuant to this part with which it is found that the applicant or recipient has failed to comply.

(e) Approval by Administrator. Any decision by an official of the Agency, other than the Administrator personally, which provides for the termination of, or the refusal to grant or continue, Federal financial assistance, or the imposition of any other sanction available under this part or the Act, shall promptly be transmitted to the Administrator personally, who may approve such decision, vacate it, or remit or mitigate any sanction imposed.

(f) Content of orders. The final decision may provide for termination of, or refusal to grant or continue, Federal financial assistance, in whole or in part, to the program involved and may contain such terms, conditions, and other provisions 83 are consistent with and will effectuate the purpose of the Act and this part, including provisions designed to assure that no Federal financial assistance will thereafter be extended under such program to the applicant or recipient determined by such decision to have failed to comply with requirements imposed by or under this part unless and until it corrects its noncompliance and satisfies the Administrator that it will fully comply with this part.

(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 from the Agency if it satisfies the terms and conditions of