Citations Reported in WIA Section 188 Disability Checklist

Title II- Sect. 188

Reference to 64 FR 61699 (November 12, 1999)




These provisions have been modeled upon the ADA Title II 

regulations in order to ensure that requirements under Section 188 of 

WIA follow generally the requirements of ADA Title II. Many recipients 

of WIA Title I financial assistance are also subject to the 

requirements of Title II, which applies to public entities including 

State and local governments and their departments, agencies, and 

instrumentalities. See 42 U.S.C. 12131. Modeling the WIA regulations on 

the ADA Title II regulations ensures that these recipients are subject 

to similar obligations and responsibilities under both laws.

Reference to 65 FR 51984-51990




[Federal Register: August 25, 2000 (Volume 65, Number 166)]



[[Page 51984]]



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DEPARTMENT OF LABOR



Office of the Secretary



 

State Guidance for Developing Methods of Administration (MOA) 

Required by Regulations Implementing Section 188 of the Workforce 

Investment Act of 1998 (WIA)



AGENCY: Office of the Secretary.



ACTION: Notice.



-----------------------------------------------------------------------



SUMMARY: The purpose of this notice is to provide interested parties 

with the final approved Guidance for use by States in submitting their 

Methods of Administration as required by 29 CFR part 37. That part 

implements the nondiscrimination and equal opportunity provisions of 

the Workforce Investment Act of 1998.



FOR FURTHER INFORMATION CONTACT: Ms. Annabelle T. Lockhart, Director, 

Civil Rights Center, U.S. Department of Labor, 200 Constitution Ave., 

N.W., Room N-4123 FPB, Washington, DC 20210, telephone number (202) 

219-8927 (voice)(this is not a toll-free number), or (800) 326-2577 

(TTY/TDD).



SUPPLEMENTARY INFORMATION: The Workforce Investment Act of 1998 (WIA), 

Public Law 105-220 (August 7, 1998), provides the framework for a 

reformed national workforce preparation and employment system designed 

to meet the needs of the nation's employers, its job seekers, and those 

who want to further their careers. While WIA makes many programmatic 

changes in the workforce development system authorized under the Job 

Training Partnership Act of 1982 (JTPA), one constant has been the 

prohibition against discrimination. The nondiscrimination and equal 

opportunity provisions of JTPA (section 167) prohibit discrimination 

against applicants, beneficiaries and employees on the bases of race, 

color, national origin, age, disability, sex, religion, and political 

affiliation or belief. Further, section 167 prohibits discrimination 

against beneficiaries on the bases of citizenship and participation in 

JTPA. The nondiscrimination and equal opportunity provisions of WIA 

(section 188) prohibit discrimination against applicants, beneficiaries 

and employees on the same bases.

    Methods of Administration (MOA), designed to assure the Secretary 

of Labor that State programs financially assisted by the Department 

operate in a nondiscriminatory manner, have been required of States 

since 1984. This requirement was codified when, on January 15, 1993, 

the Department of Labor issued 29 CFR part 34, the regulations that 

implement section 167 of JTPA. (See 29 CFR 34.33.)

    Section 188(e) of WIA requires the Secretary to issue regulations 

implementing section 188. An interim final rule implementing that 

section was published on November 12, 1999, at 29 CFR part 37. As with 

part 34, part 37 includes the requirement that States develop, 

implement and maintain, for each of their State programs, an MOA. (See 

29 CFR 37.54 and 37.55.) The MOA standards contained in part 37 are 

substantially the same as those contained in part 34. States that have 

faithfully implemented and maintained their MOAs under JTPA will find 

that the time and effort needed to update their MOA to meet WIA 

requirements will be minimal.



    Signed at Washington, D. C., this 21st day of August, 2000.

Alexis M. Herman,

Secretary of Labor.



ATTACHMENT: State Guidance for Developing Methods of Administration 

(MOA) Required by Regulations Implementing Section 188 of the 

Workforce Investment Act of 1998 (WIA)



OMB Control No. 1225-0077

Expires January 31, 2003



    The regulations that implement the nondiscrimination and equal 

opportunity provisions of the Workforce Investment Act of 1998 (WIA), 

published at 29 CFR part 37, require that each Governor establish and 

adhere to a Methods of Administration (MOA) for his/her State programs. 

This document provides Guidance for Governors and States in meeting the 

regulatory requirements regarding MOAs.

    An MOA is a document that describes the actions an individual State 

will take to ensure that its WIA Title I-financially assisted programs, 

activities, and recipients are complying, and will continue to comply, 

with the nondiscrimination and equal opportunity requirements of WIA 

and its implementing regulations. States were first required to prepare 

and submit MOAs in 1984, under the Job Training Partnership Act (JTPA). 

The requirement was continued in 1993, under the regulations 

implementing the nondiscrimination and equal opportunity provisions of 

JTPA. The JTPA MOA requirements were set forth in 29 CFR 34.33. The 

form and content of the MOAs required under 29 CFR part 37 remain 

substantially the same as those of the MOAs required under JTPA.

    Title 29 CFR 37.54(a) provides that each Governor must establish 

and maintain an MOA for State programs. 29 CFR 37.54(d) describes the 

required elements of an MOA. Finally, 29 CFR 37.55 addresses 

requirements related to submitting and updating the MOA.

    By submitting an MOA, the Governor agrees to fully follow its 

provisions. Failure to do so may result in a finding of noncompliance. 

See 29 CFR 37.65(a).

    This Guidance specifically discusses the requirements of 29 CFR 

37.54(b) and 37.55, and is intended to explain, not to add to, the 

requirements contained in those regulatory provisions. The Guidance is 

based upon materials the Civil Rights Center (CRC) prepared in 1993 to 

train Equal Opportunity (EO) Officers regarding the requirements of 

MOAs under JTPA. This Guidance does not create new legal requirements 

or change current legal requirements. Instead, it reflects the view of 

CRC and is intended to serve as a basic resource document on CRC-

administered laws. The legal requirements related to nondiscrimination 

and equal opportunity that apply to recipients of financial assistance 

under WIA are contained in the statutes and regulations cited in this 

Guidance. Every effort has been made to ensure that the information 

contained in the Guidance is accurate and up to date.



I. Guidance on Meeting the Requirements of 29 CFR 37.54(b) Section 

37.54(b) Requires That Each MOA Shall be:



{time}  In writing, addressing each requirement of 29 CFR 37.54(d) with 

narrative and documentation;

{time}  Reviewed and updated as required by 29 CFR 37.55; and

{time}  Signed by the Governor.

    The MOA should be organized in the nine elements listed below, with 

both a narrative and a documention section for each element.



Section A. Narrative



    The first section of each element should be a narrative description 

of how the State and its recipients, as that term is defined in 29 CFR 

37.4, are meeting and will continue to meet the requirements of part 

37. The narrative should be specific. CRC regards the narrative as the 

more important section, since it contains the description of what the 

State and its recipients are doing and will continue to do to fulfill 

their obligations under WIA section 188 and 29 CFR part 37.



Section B. Documentation



    The second section of each element should include documentation 

that shows how the State is carrying out that element of the MOA. When 

reviewing the adequacy of and/or performance under an MOA, CRC may request 

additional supporting documentation pursuant to 29 CFR 37.65.

[[Page 51985]]



   Element 1. Designation of State-and local-level Equal Opportunity (EO) 

Officers (29 CFR 37.54(d)(1)(ii))

In this element, the State should address how it and its recipients 

are complying and will continue to comply with the requirements of 29 

CFR 37.23 through 37.28. The intent of this section is to ensure that 

any individual the recipient appoints as EO Officer has the education, 

training and experience, and is provided the necessary ongoing training 

and qualified staff, to perform his or her duties assigned under 29 CFR 

part 37. Additionally, the EO Officer should not be in a position that 

would constitute, or appear to constitute, a conflict of interest. 

Further, the State should ensure that he or she reports, on EO matters, 

directly to the appropriate official in the organization (see 29 CFR 

37.25(e). In summary, any individual appointed as EO Officer should 

have the skill, ability, knowledge and authority to properly oversee 

and direct the EO program to which that individual has been assigned.

    (a) The narrative section of this element should identify, at a 

minimum:



{time}  Each individual designated as a State-level Equal Opportunity 

Officer and each individual designated as a local-level Equal 

Opportunity Officer, by name, position title, business address 

(including e-mail address if applicable) and telephone number 

(including TDD/TTY number). (See 29 CFR 37.23.)



{time}  The level within the organization (described in such terms as 

the individual's authority and position relative to the top of the 

hierarchy) occupied by the EO Officer(s). (See 29 CFR 37.24.)

{time}  The duties of the EO Officer(s), and the manner in which those 

duties are carried out. (At a minimum, duties assigned to the EO 

Officer must include those listed in 29 CFR 37.25.) Describe both the 

EO duties, responsibilities and activities associated with the 

implementation of 29 CFR part 37, and all other duties, 

responsibilities and activities.



    Note: The EO Officer may not be assigned duties, 

responsibilities or activities that would constitute a conflict of 

interest or the appearance of such a conflict; see 29 CFR 37.24.)



{time}  The manner in which the recipient makes the identity of the EO 

Officer(s) known to applicants, registrants, eligible applicants/

registrants, participants, employees, and applicants for employment, as 

well as interested members of the public. (See 29 CFR 37.26.)

{time}  The level of staff and other resources available to State- and 

local-level EO Officer(s) to ensure that WIA Title I-financially 

assisted programs and activities operate in a nondiscriminatory way. 

(See 29 CFR 37.26(c).)

{time}  The State's plan for ensuring that State- and local-level EO 

Officers and their staffs are sufficiently trained to maintain 

competency. (See 29 CFR 37.26(d).)

{time}  The identity, by name, title and organization, of the 

individual to whom each State- and local-level EO Officer reports on 

equal opportunity matters.

{time}  A description of the professional and support staffing levels 

and resources provided to each State- and local-level EO Officer to 

assist him or her in ensuring compliance with WIA section 188 and part 

37.

{time}  The type and level of training each State- and local-level EO 

Officer has received and will receive to ensure that he or she is 

capable of fulfilling his or her responsibilities as an EO Officer.

{time}  The means by which the State makes public the names, position 

titles and telephone numbers (including TDD/TTY numbers) of each State- 

and local-level EO Officer.

{time}  A description of any duties, other than WIA equal opportunity 

responsibilities, assigned to each State- and local-level EO Officer.



    (b) Documentation for this element to be submitted as part of the 

MOA should include, but need not be limited to:



{time}  Examples of each document (e.g., notices, directives, 

memoranda, letters to community groups, flyers, and relevant pages of 

handbooks and manuals) that communicates, either internally or 

externally, the EO Officer's name and other required information to 

registrants, applicants, eligible applicants/registrants, participants, 

applicants for employment, employees, and interested members of the 

public.

{time}  Examples of each communication (e.g., directives) that 

instructs the State's recipients as to the actions they are to take to 

comply with 29 CFR 37.23 through 28 with regard to EO Officers.

{time}  A copy of the State EO Officer's position description, showing 

those duties specifically related to WIA equal opportunity activities, 

and other duties.

{time}  A representative sample of local-level EO Officer position 

descriptions. NOTE: If a single, standard position description has been 

adopted for all local-level EO Officers, then a single copy of that 

description is sufficient.

{time}  Copies of organization chart(s) showing the organizational 

location of each EO Officer.

{time}  The identity of any staff who perform duties that support WIA 

EO activities (e.g., clerical, data analysis), a position description 

for each such staff member, and average hours per week spent on EO-

related activities by each such staff member (if positions are not 

devoted to WIA equal opportunity activities on a full-time basis).

{time}  EO budget and source of funds.

{time}  Summary of EO-related training that staff (EO staff and others) 

have received and a schedule of EO training to be delivered in the 

future. This may be training delivered by the State- or local-level EO 

Officer to recipient staff, or training delivered to EO Officers or 

recipient staff by outside sources, such as CRC.

Element 2. Notice and Communication (29 CFR 37.54(d)(1)(iii))

    In this element, the State should address how it and its recipients 

are complying and will continue to comply with the requirements of 29 

CFR 37.29 through 37.36. States should ensure the establishment of a 

notice and communication system that makes all registrants, applicants, 

eligible applicants/registrants, applicants for employment, employees 

and interested members of the public aware of both the recipient's 

obligation to operate its programs and activities in a 

nondiscriminatory manner, and the extent of the rights of members of 

these groups to file complaints of discrimination.



    (a) The narrative section of this element should describe, at a 

minimum:



{time}  The methods and frequency of dissemination of the notice, 

including initial dissemination. (See 29 CFR 37.29.)

{time}  The means by which the notice is made available to individuals 

with disabilities. (See 29 CFR 37.31(b).)

{time}  The means by which the State ensures that recipients post the 

notice. (See 29 CFR 37.33.)

{time}  The means by which a copy of the notice is placed in the 

participant's file (see 29 CFR 37.31(a)), or where
[[Page 51986]]



the files are maintained electronically, how the requirement of 

37.31(a) is and will continue to be met.

{time}  The means by which the State ensures that recruitment brochures 

and other materials routinely made available to the public include the 

statements ``equal opportunity employer/program'' and ``auxiliary aids 

and services are available upon request to individuals with 

disabilities.'' (See 29 CFR 37.34(a).)

{time}  Where a telephone number is included on recruitment brochures 

and other materials, the means by which the State ensures that the 

materials indicate a TDD/TTY number or provide for an equally effective 

means of communication with individuals with hearing impairments. (See 

29 CFR 37.34(a).)

{time}  The means by which program-related information is published or 

broadcast in the news media (e.g., publication of Requests for 

Proposal) and the means by which the State ensures that publications/

broadcasts state that the program is an equal opportunity employer/

program and that auxiliary aids and services are available upon request 

to individuals with disabilities. (See 29 CFR 37.34(b).)

{time}  The manner in which and extent to which information in 

languages other than English is provided, and the manner in which the 

State ensures that persons of limited English-speaking ability have 

access to its programs and activities on a basis equal to that of those 

who are proficient in English. (See 29 CFR 37.35.)

{time}  The manner in which and extent to which orientations for 

registrants, applicants, eligible applicants/registrants, employees, 

applicants for employment, and members of the public include a 

discussion of the rights of such persons under WIA section 188 and 29 

CFR part 37. (See 29 CFR 37.36.)

{time}  The steps taken to ensure that communications with individuals 

with disabilities are as effective as communications with others. (See 

29 CFR 37.29(b).)

{time}  The process the State has used and will continue using to 

develop and communicate policy and conduct training regarding 

nondiscrimination and equal opportunity. (See 29 CFR 37.25(c), and 

37.54(d)(2)(iii), and 37.54(d)(2)(vi).)



    (b) Documentation for this element to be submitted as part of the 

MOA should include, but need not be limited to:



{time}  A copy of each communication that instructs the State's 

recipients on how they are to comply with the requirements of 37.29 

through 37.36 regarding notice and communication.

{time}  A copy of the posted notice required by 29 CFR 37.29 and 37.30.

{time}  A copy of any checklist of the contents of participant and 

employee files, indicating that the notice requirement has been met. 

(See 29 CFR 37.31(a)(4).)

{time}  A copy of any orientation agendas that include, as an agenda 

item, a discussion of equal opportunity and nondiscrimination under WIA 

section 188 and 29 CFR part 37. (See 29 CFR 37.36.)

{time}  A copy of each item of material, distributed at orientation 

sessions, that addresses the rights of individuals under WIA section 

188 and 27 CFR part 37. (See 29 CFR 37.36.)

{time}  Copies of agendas (and a list of dates) of past and proposed EO 

policy briefings and EO training. (See 29 CFR 37.25(f), 37.26(d) and 29 

CFR 37.54(d)(2)(vi).)

{time}  A copy of each policy issuance or instruction that relates to 

WIA section 188 or 29 CFR part 37. (See 29 CFR 37.25(c), 37.54(d)(iii), 

29 CFR 54(d)(vi) and 37.54(d)(viii).)

{time}  A copy of each recruitment brochure and other item of material 

distributed to the public by a WIA Title I-financially assisted 

recipient, showing that each includes:

{time}  The statements ``equal opportunity employer/program'' and 

``auxiliary aids and services are available upon request to individuals 

with disabilities''; and

{time}  The telephone numbers for TDD/TTY access and/or telephone relay 

services. (See 29 CFR 37.34(a).)



[page 51986-Element 3]

Element 3. Review assurances, job training plans, contracts, and 

policies and procedures (29 CFR 37.54(d)(1)(i) and (d)(2)(i), (iii) and 

(iv))

    In this element, the State should address how it and its recipients 

are complying and will continue to comply with the requirements of 29 

CFR 37.20 and 37.54(d)(1)(i) and (d)(2)(i), (iii) and (iv) regarding 

the review of assurances, job training plans, contracts, and policies 

and procedures. Additionally, this element should address the 

procedures the State and its recipients are following and will continue 

to follow in assessing the ability of grant applicants, if funded, or 

training providers, if declared eligible, to comply with WIA section 

188 and 29 CFR part 37.

    (a) The narrative section of this element should describe, at a 

minimum, how the State ensures that:



{time}  Each grant applicant, and each training provider seeking 

eligibility, includes in its application for financial assistance under 

Title I of WIA the required EO assurance. (See 29 CFR 37.20(a)(1).)

{time}  The required assurance is incorporated into each grant, 

cooperative agreement, contract, or other arrangement whereby Federal 

financial assistance under Title I of WIA is made available. (See 29 

CFR 37.20(a)(2).) NOTE: 29 CFR 37.20(a)(2) provides that the assurance 

may be incorporated by reference into these documents.

{time}  Each grant applicant, and each training provider seeking 

eligibility, is able to provide programmatic and architectural 

accessibility for individuals with disabilities. (See subpart C of 29 

CFR part 32.)

{time}  Job training plans, contracts, assurances, and other similar 

agreements entered into by recipients are both nondiscriminatory and 

contain the required language regarding nondiscrimination and equal 

opportunity. (See 29 CFR 37.54(b)(2)(iv).)

{time}  State- and local-level policy issuances, or issuances from 

other recipients, are not discriminatory either in intent or effect. 

(See 29 CFR 37.54(d)(2)(iii).)

{time}  Policies on WIA Title I nondiscrimination and/or equal 

opportunity issues are developed and implemented in a timely manner.



    (b) Documentation for this element to be submitted as part of the 

MOA should include, but need not be limited to:



{time}  A copy of each directive that instructs individuals at the 

State and/or local level who are responsible for reviewing assurances, 

job training plans, contracts, and policies and procedures as to the 

requirements of, and their duties under, 29 CFR 37.20, 37.54(d)(1)(i), 

and (d)(2)(i), (iii) and (iv).

{time}  Copies of assurance pages of plans, contracts, and other 

agreements.

{time}  Copies of memos or directives to contract managers advising 

them to include the required assurance in the appropriate documents.

{time}  Copies of checklists or other guidelines used by contract 

specialists, attorneys, or others who review contracts and agreements 

that indicate that nondiscrimination
[[Page 51987]]



and equal opportunity are considered in the evaluation of such 

documents.

{time}  A copy of procedures developed to review the ability of grant 

applicants, and training providers seeking eligibility, to comply with 

the nondiscrimination and equal opportunity provisions of WIA and 29 

CFR part 37.

{time}  A copy of each WIA EO issuance (e.g., the general EO policy 

statement, the policy statement on sexual harassment and the policy 

statement on religious accommodation).

[Page 51987 Element 4]

Element 4. Universal Access (29 CFR 37.54(d)(1)(vi)

    In this element, the State should address how it and its recipients 

are complying and will continue to comply with the requirements of 29 

CFR 37.42 relating to the provision of universal access to programs and 

activities.

    (a) The narrative section of this element should describe, at a 

minimum, how:



{time}  The State has communicated the obligation of recipients 

(including, e.g., LWIAs, one-stop operators and service providers) to 

make efforts (including outreach) to broaden the composition of the 

pool of those considered for participation or employment in their 

programs and activities in an effort to include members of both sexes, 

of the various racial and ethnic groups and of various age groups, as 

well as individuals with disabilities.

{time}  Recipients have made and will continue to make efforts to 

broaden the composition of those considered for participation or 

employment in their programs and activities, as described above.

{time}  The State monitors and evaluates the success of recipient 

efforts to broaden the composition of those considered for 

participation and employment in their programs and activities, as 

described above.



    (b) Documentation for this element to be submitted as part of the 

MOA should include, but need not be limited to:



{time}  Copies of targeting, outreach and recruitment plans.

{time}  Criteria for determining priority of service.

{time}  Copies of plans for One-Stop delivery systems to expand the 

pool of those considered for participation or employment in their 

programs and by race/ethnicity, sex, disability status, and age.

{time}  Samples of brochures, posters, public-service announcements, 

computer screens displaying related information, and other publicity 

materials.

Element 5. Compliance with section 504 of the Rehabilitation Act of 

1973, as amended and 29 CFR part 37 (29 CFR 37.54(d)(2)(v))

    In this element, the State should address how it and its recipients 

are complying and will continue to comply with the requirements of the 

disability related requirements of WIA section 188; Section 504 of the 

Rehabilitation Act of 1973, as amended; and their implementing 

regulations, including but not limited to 29 CFR 37.7, 37.8, and 37.9 

and Subparts B and C of 29 CFR Part 32.

    (a) The narrative section of this element should describe, at a 

minimum how the State ensures that recipients:



{time}  Meet their obligation not to discriminate on the basis of 

disability. (See 29 CFR 32.12 (a), 32.26, and 37.7.)

{time}  Provide reasonable accommodation for individuals with 

disabilities (See 29 CFR 32.13 and 29 CFR 37.8);

{time}  Provide reasonable modification of policies, practices and 

procedures, as required (See 29 CFR 37.8);

{time}  Provide architectural accessibility for individuals with 

disabilities (See 29 CFR 32.28); and

{time}  Provide programmatic accessibility for persons with 

disabilities (See 29 CFR 32.27).

{time}  Provide for and adhere to a schedule to evaluate job 

qualifications to ensure that the qualifications do not discriminate on 

the basis of disability. (See 29 CFR 32.14.)

{time}  Limit preemployment/employment medical inquiries to those 

permitted by and in accordance with WIA section 188, Section 504, the 

Americans with Disabilities Act of 1990, and their implementing 

regulations. (See 29 CFR 32.15.)

{time}  Ensure the confidentiality of medical information provided by 

registrants, applicants, eligible applicants/registrants, participants, 

employees, and applicants for employment. (See 29 CFR 32.15.)

{time}  Administer their WIA Title I-financially assisted programs and 

activities so that each individual with a disability participates in 

the most integrated setting appropriate to that individual. (See 29 CFR 

37.7(d).)

{time}  Are able to communicate with persons with disabilities as 

effectively as with others. (See 29 CFR 37.9.)



    (b) Documentation for this element to be submitted as part of the 

MOA should include, but need not be limited to:



{time}  Copies of policies/procedures issued by the State or any of its 

WIA Title I recipients, such as:

{time}  The procedures by which persons with disabilities are assured 

of participation in programs and activities in as integrated setting as 

possible;

{time}  The procedures by which the availability of reasonable 

accommodation and reasonable modification are made known to persons 

with disabilities, and the procedures for making and resolving such 

requests;

{time}  The procedures by which the State ensures that communication 

with persons with disabilities is as effective as communication with 

others; and

{time}  The procedures by which the State ensures that the programs and 

activities operated by its WIA Title I recipients are architecturally 

and programmatically accessible to individuals with disabilities.

{time}  Any evaluation conducted to determine the programmatic or 

architectural accessibility of a WIA Title I-financially assisted 

program or activity and the status of any corrective actions taken by 

the recipient involved.

{time}  Copies of publications and agendas for any training conducted 

for recipient staff that is intended to raise awareness of disability 

issues.

Element 6. Data and Information Collection and Maintenance (29 CFR 

37.54(d)(1)(iv) and (vi))

    In this element, the State should address how it and its recipients 

are complying and will continue to comply with the requirements of 29 

CFR 37.37 through 37.41 related to data and information collection and 

maintenance. The State must ensure that a data and information 

collection and maintenance system for its WIA Title I-financially 

assisted State programs is established and maintained. (See 29 CFR 

37.53.)

    The most important purposes of the equal opportunity data and 

information collection and maintenance system required by 29 CFR part 

37 are to assist CRC and those assigned by the State (e.g., State- and/

or local-level EO Officers) in:



{time}  Monitoring recipient equal opportunity performance;

{time}  Identifying instances or areas of discrimination; and

{time}  Identifying individuals or groups of individuals who have been



[[Page 51988]]



discriminated against on a basis prohibited by WIA section 188 and 29 

CFR part 37.

    A vital element of any system designed to fulfill these purposes is 

a way to permit the reviewer to correlate aggregate data to individual 

records. For example, 29 CFR part 37 requires that recipient's collect 

four pieces of demographic information about each registrant, 

applicant, eligible applicant, participant, employee, and applicant for 

employment: Race/ethnicity, sex, age, and disability status. This 

information must be kept separate from the recipient's individual 

records about such persons. However, the system for data and 

information collection and maintenance must be designed in such a way 

to allow cross referencing of data to individual records.

    It is CRC's policy that existing systems for data and information 

collection and maintenance that meet all the requirements of 29 CFR 

37.37 through 37.41 are acceptable. These systems may be designed by 

the recipient or some other entity. However, to the extent that a 

system does not meet all the requirements of these regulatory sections, 

that system must be modified so that it does meet those requirements.

    (a) The narrative section of this element should describe, at a 

minimum, how the State ensures that:



{time}  Recipients:

{time}  Collect and maintain records on applicants, registrants, 

eligible applicants/registrants, participants, terminees, employees, 

and applicants for employment;

{time}  Record the race/ethnicity, sex, age and, disability status of 

each applicant, registrant, eligible applicant/registrant, participant, 

terminee, employee, and applicant for employment (See 29 CFR 

37.37(b)(2).);

{time}  Treat records, particularly those containing medical 

information, in a manner that ensures their confidentiality (See 29 CFR 

32.15; 29 CFR 37.37(b)(2); and 29 CFR 37.41.);

{time}  Maintain a log of complaints filed that allege discrimination 

on one or more of the bases prohibited by WIA section 188 (See 29 CFR 

37.37(c).); and

{time}  Maintain such records for a period of three years. (See 29 CFR 

37.39.)

{time}  Grant applicants and recipients notify the CRC Director of 

administrative enforcement actions and lawsuits brought against them 

that allege discrimination on one or more of the bases prohibited by 

WIA section 188. (See 29 CFR 37.37(a).)



    (b) Documentation for this element to be submitted as part of the 

MOA should include, but need not be limited to, copies of:



{time}  Instructions to recipients within the State regarding 

information collection, access to records, and maintenance of records. 

(See 29 CFR 37.37.)

{time}  Samples of each policy issuance that discusses ensuring the 

confidentiality of demographic information regarding individuals.

{time}  Samples of reports regarding the above demographic information.

{time}  Samples of formats and instructions, in hard copy and 

electronic file forms, for complaint logs used by the State and its 

recipients to track complaints that allege a violation of WIA section 

188 or 29 CFR part 37.

Element 7. Monitor Recipients for Compliance (29 CFR 37.54(d)(2)(ii))

    In this element, the State should address how it and its recipients 

are complying and will continue to comply with the requirements of 29 

CFR 37.54(d)(1)(iii). The State is required to establish procedures to 

monitor periodically all aspects of the recipient's compliance with WIA 

section 188 and 29 CFR part 37.

    Each EO monitoring review must include a review of each 

recipient's:



{time}  Compliance with its administrative obligations under WIA 

section 188 and 29 CFR part 37 (e.g., assurances, notice and 

communication, EO Officers);

{time}  Compliance with responsibilities it has been assigned through 

the MOA;

{time}  Programs and activities, to determine whether discrimination is 

occurring. This activity is the most important part of the monitoring 

review.



    Monitoring recipients to ensure their programs and activities are 

operating in a nondiscriminatory manner must involve, at a minimum:

    (1) Analysis of the data and records collected by the recipient 

pursuant to 29 CFR 37.37 through 41, to determine whether any 

differences based upon race/ethnicity or sex have practical or 

statistical significance; and

    (2) Where significant differences are found, follow-up 

investigations to determine, through records review, interviews, and 

other appropriate investigative techniques, whether the differences are 

due to discrimination.

    The analyses mentioned in section (1) above may include those that 

may reveal practical significance, such as the ``80% rule'' (see 41 CFR 

60-3, the DOL regulation regarding the Uniform Employee Selection 

Guidelines), and those that reveal statistical significance, such as 

the two-standard deviation test.

    (a) The narrative section of this element must describe, at a 

minimum, the system for evaluating the extent to which recipients are:



{time}  Complying with the administrative obligations of 29 CFR part 

37, including, but not limited to:

{time}  Assurances. (See 29 CFR 37.20 through 37.22.)

{time}  Equal Opportunity Officers. (See 29 CFR 37.23 through 37.28.)

{time}  Notice and communication. (See 29 CFR 37.29 through 37.36.)

{time}  Data and information collection and maintenance. (See 29 CFR 

37.37 through 37.41.)

{time}  Universal access. (See 29 CFR 37.42.)

{time}  Complaint processing procedures. (See 29 CFR 37.70 through 

37.80.)

{time}  Performing the responsibilities assigned such recipients by the 

State through the MOA, such as:

{time}  Conducting equal opportunity monitoring/evaluation reviews of 

applicants for and recipients of WIA Title I financial assistance 

(including monitoring assurances and programmatic and architectural 

accessibility).

{time}  Imposing sanctions and corrective actions for violations noted 

by a recipient during its monitoring reviews.

{time}  Ensuring policy development, communication, and training are 

carried out.

{time}  Ensuring that their programs and activities are operating in a 

nondiscriminatory manner and ensuring equal opportunity, including but 

not limited to:

{time}  Conducting analyses, by race/ethnicity and sex, of program and 

employment activity, including but not limited to rates of application, 

placement, and termination, to determine if significant differences 

exist, and

{time}  Conducting follow-up monitoring to determine the cause of any 

such differences, through the analysis of the records of individual 

registrants, applicants, eligible applicants/registrants, employees and 

applicants for employment; interviews; and other appropriate 

techniques.



Additionally, the narrative should describe:



{time}  The procedure for reviewing recipients' policies and 

procedures, to ensure that the policies and procedures do not violate 

the prohibitions contained in 29 CFR 37.5 through 37.10.



[[Page 51989]]



{time}  The written reports prepared for each review. These reports 

must provide, among other things, that the results of the monitoring 

review will be made available to the recipient(s) reviewed.

{time}  The involvement of the State- and local-level EO Officer(s) in 

conducting reviews. Where EO monitoring is carried out by individuals 

other than the State- or local-level EO Officer, the narrative should 

provide the names, titles, and organizations of those persons.

{time}  The procedure for determining which recipients are to be 

reviewed, the frequency of reviews of recipients, and the number of 

recipients to be reviewed per year.



    (b) Documentation for this element to be submitted as part of the 

MOA should include, but need not be limited to, copies of:



{time}  Schedules of reviews and criteria for targeting recipients for 

review.

{time}  Monitoring instrument(s) used by State- and/or local-level 

staff to monitor recipient EO activities.

{time}  Policy issuances and procedural guidance regarding monitoring 

reviews and recipient evaluations.

{time}  A representative sample of reports of monitoring reviews, 

including findings resulting from reviews and the status of follow-up 

actions.

Element 8. Complaint Processing Procedures (29 CFR 37.54(d)(1)(v))

    In this element, the State should address how it and its recipients 

are complying and will continue to comply with the requirements of 29 

CFR 37.76 through 37.79 regarding complaint processing procedures.

    (a) The narrative section of this element should describe, at a 

minimum, how the State ensures that:



{time}  Recipients that are required to do so (see 29 CFR 37.77) have 

developed and published complaint procedures. (See 29 CFR 37.76.) At a 

minimum, such procedures must:

{time}  Provide for the issuance of a written Notice of Final Action 

within 90 days of the date on which the complaint is filed . (See 29 CFR 

37.76(a).)

{time}  Contain the elements listed in 29 CFR 37.76(b), which include:

{time}  Initial, written notice to the complainant that contains an 

acknowledgment that the recipient has received the complaint, and a 

notice that the complainant has the right to be represented in the 

complaint process (see 29 CFR 37.76(b)(1));

{time}  A written statement, provided to the complainant, that contains 

a list of the issues raised in the complaint and, for each issue, a 

statement whether the recipient will accept the issue for investigation 

or reject the issue, and the reasons for each rejection (see 29 CFR 

37.76(b)(2));

{time}  A period for fact-finding or investigation of the circumstances 

underlying the complaint (see 29 CFR 37.76(b)(3));

{time}  A period during which the recipient attempts to resolve the 

complaint. The methods available to resolve the complaint must include 

alternative dispute resolution (ADR) (see 29 CFR 37.76(b)(4) and (c)); 

and,

{time}  A written Notice of Final Action, provided to the complainant 

within 90 days of the date on which the complaint was filed , that 

contains, for each issue raised in the complaint:

{time}  Either a statement of the recipient's decision on the issue and 

an explanation of the reasons underlying the decision, or a description 

of the way the parties resolved the issue; and

{time}  Notice that the complainant has a right to file a complaint 

with CRC within 30 days of the date on which the Notice of Final Action 

is issued if he or she is dissatisfied with the recipient's final 

action on the complaint. (See 29 CFR 37.76(b)(5).)

{time}  Describe the procedures to be followed if the complaint is filed 

more than 180 days after the date of the alleged violation. (See 

29 CFR 37.78.)

{time}  Provide that, if the complainant is dissatisfied with the 

outcome of the investigation, or if there is no final resolution of the 

complaint within 90 days of the date the complaint is filed , the 

complainant is notified that he or she may file his or her complaint 

with the Civil Rights Center.

{time}  Recipients follow the established procedures.



    (b) Documentation for this element to be submitted as part of the 

MOA should include, but need not be limited to, a copy of:



{time}  The State's discrimination complaint procedures developed 

pursuant to 29 CFR 37.76 through 37.79.

{time}  The instrument (e.g., directive, memorandum) used to inform 

recipients of the complaint procedures and directing recipients as to 

their use.

{time}  The ADR procedures, if not included with complaint processing 

procedures.

Element 9. Corrective Actions/Sanctions (29 CFR 37.54(d)(2)(vii))

    In this element, the State should address how it and its recipients 

are complying and will continue to comply with the requirements of 29 

CFR 37.54(d)(2)(vii).



    (a) The narrative section of this element should describe, at a 

minimum:



{time}  The standard for corrective and remedial actions to be applied 

when violations of WIA section 188 or 29 CFR part 37 are found. 

Corrective and remedial actions must be designed to completely correct 

each violation. For each corrective action, a time frame should be 

established that sets the minimum time necessary to completely correct 

the violation. In the case of a finding of discrimination, the 

procedures must provide, where appropriate, for retroactive relief 

(including but not limited to back pay) and prospective relief (e.g., 

training, policy development and communication) to ensure that the 

discrimination does not recur.

{time}  The procedures for follow-up monitoring to ensure that 

commitments to take corrective action and remedial action are 

fulfilled.

{time}  Reports required from the violating recipient regarding actions 

to correct the violation(s).

{time}  Sanction procedures to be followed where voluntary compliance 

cannot be achieved.



    (b) Documentation for this element to be submitted as part of the 

MOA should include, but need not be limited to:



{time}  A copy of any policy memorandum/directive explaining corrective 

actions/sanctions. The sanction procedures described in Subpart E of 29 

CFR part 37 may be used as a model for States in the preparation of 

their procedures.

{time}  A copy of each instrument (e.g., directives, memoranda) used to 

inform recipients of the State's procedures regarding corrective 

actions and sanctions.



II. Guidance on Meeting the Requirements of 29 CFR 37.55



Section 37.55 requires that each State's MOA must be: Developed and 

implemented, and a copy submitted to the CRC 

Director within 180 days of the effective date of 29 CFR part 37, or 

within 180 days of the Department of Labor's approval of that State's 

Strategic Five-year Plan, whichever is later;



[[Page 51990]] Updated when necessary, and the Director notified of any 

updates at the time of the update; and Reviewed every two years from 

the date on which the initial 

MOA is submitted to the Director under 29 CFR 37.55(a)(2); for each 

such review, either the changes made to the MOA as a result of the 

review, or a certification that no changes are necessary, must be 

submitted to the Director.



Initial Submission of MOA



    Title 29 CFR 37.55(a) requires that each Governor develop and 

implement an MOA, and submit to the Director a copy of that State's 

MOA, within 180 days after the State becomes subject to WIA section 188 

and 29 CFR part 37. The date on which the 180-day clock begins running 

is contingent upon the date upon which DOL gave final approval to the 

State's Five-year Strategic Plan (Plan). MOAs of States whose Plan 

received final approval on or before November 12, 1999, the effective 

date of 29 CFR part 37 we due to be submitted to the Director within 

180 days of that effective date, in other words, by May 10, 2000.

    On the other hand, MOAs of States whose Plan received final 

approval after November 12, 1999, must be submitted 180 days after the 

date the Plan received final approval by DOL. For example, State A is 

delaying its transition to WIA until July 1, 2000, and does not submit 

its Plan to DOL until February 1, 2000. State A's Plan receives final 

approval on May 1, 2000. Given this scenario, State A is required to 

submit its MOA on or before the date that falls 180 days after May 1. 

The final date for the submission of State A's MOA, therefore, is 

October 28, 2000.



    Note: The 180-day timeframe described above applies only to the 

submission of the MOA. In general, States and their WIA Title I-

financially assisted recipients are subject to the requirements of 

WIA section 188 and 29 CFR part 37 on November 12, 1999 or on the 

date they begin operating WIA Title I programs and activities, 

whichever is later. The provisions of JTPA section 167 and its 

implementing regulations, 29 CFR part 34 continue to apply to 

programs and activities that are implemented under and authorized by 

JTPA.



Updating the MOA



    Title 29 CFR 37.55(b) requires the Governor to (1) update the MOA 

as necessary and (2) notify the Director of those updates. The 

requirements regarding updating were not part of the JTPA MOA 

regulations at 29 CFR 34.33. CRC deemed these new requirements 

necessary as a result of reviews of MOAs developed under JPTA. Those 

reviews indicated that the procedures to which a State originally 

committed in its MOA were not necessarily those in effect at the time 

of CRC's review. The purpose of an MOA is to describe to DOL how a 

State will ensure that WIA Title I financial assistance will be 

administered in a nondiscriminatory way. Further, the MOA is intended 

to be a document that State-and local-level staff and management, 

through the EO Officer, can consult when determining appropriate steps 

to take when confronted with an EO issue. Therefore, the MOA should be 

kept current and the Director notified of any changes.



State-level MOA Review



    Title 29 CFR 37.55(c) requires that, every two years from the date 

on which the initial MOA is submitted to the Director under 29 CFR 

37.55(a)(2), the Governor must review the MOA and its implementation to 

determine if any changes are necessary , either to the document or the 

way in which it is implemented. At the time of the review, the Governor 

must either (1) provide the Director with any changes that are made or 

(2) certify to the Director, in writing, that no changes are necessary. 

This requirement is also a change from the MOA requirements under JTPA. 

It has been CRC's intent that the MOA be a living document, a guide 

describing how the State will ensure that its WIA Title I-financially 

assisted programs operate in a nondiscriminatory manner. Through these 

modest regulatory changes, CRC hopes to convey that the MOA is to be a 

document that serves as a guide in fulfilling the recipient's 

obligations of nondiscrimination and equal opportunity.



[FR Doc. 00 -21740 Filed 8-24- 00 ; 8:45 am]

BILLING CODE 4510-23-P 

Reference to 64 FR 61692-61738




[Federal Register: November 12, 1999 (Volume 64, Number 218)]



[[ Page 61692 ]]





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DEPARTMENT OF LABOR



Office of the Secretary



29 CFR Part 37



RIN 1291-AA29



 

Implementation of the Nondiscrimination and Equal Opportunity 

Provisions of the Workforce Investment Act of 1998



AGENCY: Office of the Secretary, Labor.



ACTION: Interim final rule; Request for comments.



-----------------------------------------------------------------------



SUMMARY: This Interim Final Rule implements Section 188 of the 

Workforce Investment Act of 1998 (WIA), which contains the statute's 

equal opportunity and nondiscrimination provisions. The Workforce 

Investment Act supersedes the Job Training Partnership Act (JTPA) as 

the Department of Labor's primary mechanism for providing financial 

assistance for a comprehensive system of job training and placement 

services for adults and eligible youth. With limited substantive 

changes described in Section III of this preamble, this rule generally 

carries over the policies and procedures found in 29 CFR part 34, which 

implements the nondiscrimination and equal opportunity provisions of 

JTPA. Section 188(e) of WIA mandates that the Department issue 

regulations implementing the section within one year of the passage of 

WIA.



DATES: Effective Date: This Interim Final Rule will become effective on 

November 12, 1999.

    Comment Period: Comments must be received on or before December 13, 

1999.



ADDRESSES: Comments should be sent to Annabelle T. Lockhart, Director 

of the Civil Rights Center (CRC), by regular mail at the US Department 

of Labor, 200 Constitution Avenue NW, Room N-4123, Washington, DC 

20210, or by e-mail at CRC-WIA@dol.gov. Brief comments (maximum of five 

pages) may be submitted by facsimile machine (FAX) to (202) 219-5658. 

Receipt of submissions, whether by U.S. mail, e-mail, or FAX 

transmittal, will not be acknowledged; however, the sender may request 

confirmation that a submission has been received, by telephoning the 

Civil Rights Center at (202) 219-8927 (VOICE) or (202) 219-6118 or 

(800) 326-2577 (TTY/TDD).

    Comments will be available for public inspection during normal 

business hours at the above address. Persons who need assistance to 

review the comments will be provided with appropriate aids such as 

readers or print magnifiers. Copies of this Interim Final Rule will be 

made available in the following formats: large print, electronic file 

on computer disk, and audio tape. To schedule an appointment to review 

the comments and/or to obtain the Interim Final Rule in an alternate 

format, contact CRC at the telephone numbers and addresses listed 

above.



FOR FURTHER INFORMATION CONTACT: Bud West, Senior Policy Advisor, Civil 

Rights Center, US Department of Labor, 200 Constitution Avenue NW, Room 

N-4123, Washington, DC 20210, CRC-WIA@dol.gov, telephone (202) 219-8927 

(VOICE), or (202) 219-6118 or (800) 326-2577 (TTY/TDD).



SUPPLEMENTARY INFORMATION: The preamble to these regulations is 

organized as follows:



I. Background--provides a brief description of the development of 

these proposed regulations.

II. Authority--cites the statutory provisions supporting these 

regulations, Departmental redelegation authority, and Interagency 

coordination authority.

III. Overview of the Regulations--summarizes pertinent aspects of 

the regulatory text and describes its purposes and application.

IV. Regulatory Procedure--sets forth the applicable regulatory 

requirements and requests comments on specific issues.



I. Background



    On August 7, 1998, President Clinton signed the Workforce 

Investment Act of 1998 (WIA), comprehensive reform legislation that 

supersedes JTPA. Both WIA and JTPA contain nondiscrimination and equal 

opportunity provisions. The JTPA nondiscrimination provisions are 

contained in Section 167 of that statute, and in its implementing 

regulations codified in 29 CFR part 34. These regulatory provisions 

generally are carried over in the nondiscrimination and equal 

employment opportunity provisions of WIA's implementing regulations. 

The latter regulations are contained in this Interim Final Rule, to be 

codified in 29 CFR part 37.

    This Interim Final Rule prohibits WIA Title I-financially assisted 

grant applicants and recipients, as defined in Section 37.4, from 

discriminating on the basis of race, color, religion, sex, national 

origin, age, disability, or political affiliation or belief. It also 

protects any beneficiary (person intended by Congress to receive WIA 

Title I-financially assisted aid, benefits, services, or training) from 

discrimination based on either that beneficiary's citizenship, or his 

or her participation in any WIA Title I-financially assisted program or 

activity. The rule provides procedures for determining and enforcing 

compliance.

    Although the Department wishes to emphasize that it considers the 

reforms embodied in WIA to be significant, and not ``business as 

usual,'' the nondiscrimination and equal employment opportunity 

principles embodied in this Act are substantially similar to those 

contained in JTPA. Accordingly, there are only limited substantive 

differences between 29 CFR part 34, implementing the nondiscrimination 

and equal opportunity provisions of JTPA, and 29 CFR part 37, 

implementing the similar provisions of WIA. Those substantive changes 

that have been made are based on the experience of the Civil Rights 

Center (CRC), the Departmental agency responsible for administering the 

nondiscrimination provisions of JTPA and WIA, and on feedback provided 

to CRC by grant applicants and recipients regarding their work with the 

nondiscrimination and equal opportunity provisions of JTPA and part 34. 

These substantive changes are described in detail in Section III of 

this preamble.

    Most of the changes the Department has made to the provisions 

contained in part 34 have been structural, stylistic, and phrasing 

changes. The changes have been made to enhance the readability of the 

rule for, and its utility to, recipients who receive financial 

assistance under WIA Title I; grant applicants who wish to receive such 

assistance; individuals who wish to file discrimination complaints 

under WIA Section 188; and other interested parties. The Department 

seeks specific comments on the enhancements to the rule, and 

suggestions for improving the rule.

    The alterations to the rule fall into two categories: (1) Changes 

making the rule's obligations consistent with other regulatory 

obligations WIA Title I recipients might be under; and (2) Changes 

reducing the ``legalese'' of the JTPA regulations. Generally, neither 

type of modification is meant to change the substantive content of the 

underlying rule.

    As an example of the first category, the section of the rule 

regarding recipients' obligations to individuals with disabilities has 

been amended to follow generally the regulations implementing Title II 

of the Americans with Disabilities Act of 1990, as amended (ADA). These 

regulations are found at 28 CFR part 35. This change is not intended to 

provide a substantive change from the regulations implementing JTPA. It 

is intended only to clarify the regulations.



[[ Page 61693]]



    The second category of changes was prompted by the June 1, 1998, 

Presidential Memorandum on Plain Language, which instructed Federal 

Departments and Agencies to write new regulations in language 

understandable to most people. The Department has met the intent of the 

President's memorandum by incorporating stylistic changes into the 

language and format of these regulations to facilitate their 

readability without changing their substantive content. An example of 

such a change is the rewording of subsection topic header statements 

into the form of questions.

    Other examples:

     Some sections have been subdivided, to make the content of 

individual sections more homogeneous.

     Some sections have been more logically reordered.

     Terminology has been adjusted to use plain language terms. 

As a result, the term ``shall'' has been replaced in this rule by the 

terms ``must,'' ``will,'' ``is/are,'' or similar terms, as appropriate. 

The term ``must'' connotes an obligation, while the term ``will'' 

indicates a future action. Similarly, the term ``prior to'' has been 

replaced by the term ``before''; ``pursuant to'' has been replaced, as 

appropriate, by ``under,'' ``by,'' or ``authorized by''; and ``is 

deemed'' or ``will be deemed'' has been replaced, as appropriate, by 

``is/are considered'' or ``become(s).''

    Again, these changes are not intended to alter the meaning of the 

regulations. Rather, the changes are intended to create a more readable 

document.

    CRC maintains a close relationship and regular contact with the 

regulated community. The agency holds an annual national conference on 

equal opportunity, attended by several hundred officials and staff of 

the State and local agencies that are responsible for ensuring 

nondiscrimination in the programs receiving financial assistance under 

JTPA and/or WIA Title I. At this conference, and through other in-

person and telephone contacts with CRC, these officials and staff have 

discussed directly with CRC staff members the effect that the JTPA 

nondiscrimination regulations have had upon their agencies' operations. 

Many of the changes, both substantive and stylistic, that were 

incorporated in this Interim Final Rule resulted from this input. For 

example, because some of these officials told CRC that the 60-day 

period provided in the JTPA regulations for recipients to process 

discrimination complaints was insufficient, the rule extends the 

relevant time period to 90 days.

    The Department is particularly interested in receiving comments 

regarding any aspects of the Rule that affect the relationship between 

the Federal government and the States.



II. Authority



A. Statutory Authority



    The statutory authorities for this Interim Final Rule are: Sections 

134(b), 136(d)(2)(F), 136(e), 172(a), 183(c), 185(c)(2), 185(d)(1)(E), 

186, 187 and 188 of the Workforce Investment Act of 1998, Pub. L. 105-

220, 12 Stat. 936 (29 U.S.C. 2801 et seq.); Title VI of the Civil 

Rights Act of 1964, as amended, Pub. L. 88-352, 78 Stat. 252 (42 U.S.C. 

2000d, et seq.); Section 504 of the Rehabilitation Act of 1973, as 

amended, Pub. L. 93-112, 87 Stat. 390 (29 U.S.C. 794); the Age 

Discrimination Act of 1975, as amended, Pub. L. 94-135, 89 Stat. 728 

(42 U.S.C. 6101); and Title IX of the Education Amendments of 1972, as 

amended, Pub. L. 92-318, 86 Stat. 373 (20 U.S.C. 1681).



B. Departmental Authorization



    Secretary's Order 2-81, Section 5a(2), authorized the Assistant 

Secretary for Administration and Management, working through the 

Director, Office of Civil Rights, to establish and formulate all 

policies, standards, and procedures for, as well as to issue rules and 

regulations governing, the enforcement of statutes applying 

nondiscrimination and equal opportunity requirements to programs and 

activities receiving financial assistance from DOL. On October 12, 

1986, the Office of Civil Rights was redesignated the Directorate of 

Civil Rights by the Assistant Secretary. Effective December 12, 1995, 

the Assistant Secretary redesignated the Directorate of Civil Rights as 

the Civil Rights Center (CRC). CRC is authorized to monitor and enforce 

all nondiscrimination and equal opportunity regulations regarding 

programs receiving financial assistance from DOL, including Section 188 

of WIA.



C. Interagency Coordination



    The Department of Justice (DOJ), under Section 1-201 of Executive 

Order 12250 (45 FR 72995, November 4, 1980), is responsible for 

coordinating Federal enforcement of most nondiscrimination laws that 

apply to federally-assisted programs and activities. Executive Order 

12067 (43 FR 28967, July 5, 1978) requires consultation with the Equal 

Employment Opportunity Commission (EEOC) about regulations that involve 

equal employment opportunity. The Age Discrimination Act of 1975, as 

amended, assigns the Secretary of Health and Human Services the 

responsibility for coordinating the Federal enforcement effort of that 

Act. This Interim Final Rule has been coordinated with the Department 

of Justice and the Equal Employment Opportunity Commission, as well as 

the Department of Health and Human Services.

    In addition, the Rule has been coordinated with other appropriate 

Federal grantmaking agencies, including the Departments of Education 

and Housing and Urban Development.



III. Overview of the Rule



Subpart A--(a) outlines the purpose and application of part 37; (b) 

provides definitions; (c) outlines prohibited grounds for and forms of 

discrimination; and (d) establishes enforcement authority and 

obligations.

Subpart B--sets forth the affirmative obligations of recipients of, and 

grant applicants for, financial assistance under WIA Title I.

Subpart C--describes a Governor's responsibilities to implement the 

nondiscrimination and equal opportunity provisions of WIA and this 

part.

Subpart D--describes procedures for compliance reviews and complaint 

processing.

Subpart E--describes the procedures for effecting compliance, including 

(a) actions the Department will take upon making a finding of 

noncompliance for which voluntary compliance cannot be achieved; (b) 

the rights of parties upon such a finding; and (c) hearing procedures, 

sanctions, and post-termination procedures.



Subpart A--General Provisions



    The individual sections in this subpart are largely identical to 

their corresponding sections within the same subpart in part 34. 

Consistent with plain-language guidelines, one section has been 

subdivided into separate sections treating different topics. These 

changes are not intended to alter the overall meaning of this subpart, 

or the meaning of any of its component sections.



Section 37.1  What is the purpose of this part?



    This section is identical to 29 CFR 34.1(a), except that references 

to JTPA, and to its Section 167, have been changed to refer to WIA and 

its Section 188.



[[ Page 61694]]



Section 37.2  To whom does this part apply, and what is the scope of 

this part?



    This section contains requirements similar to those in 29 CFR 

34.1(b) and (d). The references to other regulatory sections within 

part 34 have been changed to reflect the numbering of this Interim 

Final Rule, and references to JTPA have been changed to refer to WIA. 

Also, some of the material has been presented in outline form to 

improve its readability. None of these changes is intended to alter the 

meaning of the section.

    Language has been added to paragraph 37.2(a) to clarify that the 

requirements in this part apply to programs and activities that are 

part of the One-Stop delivery system and that are operated by One-Stop 

partners listed in WIA Section 121(b), including those partners 

financially assisted by grantmaking agencies other than the Department 

of Labor, to the extent that the programs and activities are being 

conducted as part of the One-Stop delivery system. The requirements in 

29 CFR part 34 continue to apply to programs and activities that are 

implemented under and authorized by JTPA.

    In those cases in which States that have opted to implement WIA 

before July 1, 2000, are operating WIA Title I programs and activities 

simultaneously with programs and activities under JTPA, the WIA Title I 

programs and activities must comply with the requirements in this part, 

while the JTPA programs and activities must comply with the 

requirements in 29 CFR part 34.



Section 37.3  How does this part affect a recipient's other 

obligations?



    This section generally contains the same requirements as 29 CFR 

34.1(c). The language of 29 CFR 34.1(c)(6), which dealt with 

retroactivity, is inapplicable to this Interim Final Rule, and has been 

omitted; in addition, references to JTPA have been changed to refer to 

WIA. Other differences between this section and the corresponding 

paragraphs of the JTPA regulations are listed below.

    Paragraph 37.3(b): This paragraph has been amended to incorporate 

by reference the provisions of Subparts B and C and Appendix A of 29 

CFR part 32, which implement the requirements of Section 504 pertaining 

to employment practices, employment-related training, program 

accessibility, and accommodations. As a result, the language from 29 

CFR 34.1(c)(2) that stated that part 34 did not affect recipients' 

obligations to comply with those provisions has been omitted.

    It is important to understand the distinction between the concept 

of ``program accessibility,'' referred to in this paragraph, and the 

separate concept of architectural accessibility, both of which a 

recipient is required to provide under Subpart C.

    The requirement of program accessibility means that when viewed in 

its entirety, the program or activity provided by the recipient must be 

readily accessible to qualified individuals with disabilities. 29 CFR 

32.27. The recipient must ensure that participants with various 

physical and mental disabilities will have access to the program or 

activity. This obligation to make the program or activity accessible in 

advance exists independent of a request for a particular accommodation 

by a specific individual. Therefore, even if an individual with a 

disability requests an accommodation that would impose an undue 

hardship on the recipient, the recipient still has an overall 

obligation to make the program or activity accessible.

    Architectural accessibility, by contrast, relates to the 

construction and design of facilities. 29 CFR 32.28. Architectural 

accessibility standards are similar to building codes. A recipient must 

comply with the architectural accessibility standards whether or not a 

particular individual with a disability has requested a reasonable 

accommodation. 29 CFR 32.13(d). A recipient's obligation to comply with 

the architectural accessibility standards is also independent of its 

program accessibility obligations.

    Paragraph 37.3(d): This paragraph has been added to parallel 

Paragraph 37.3(c), and to emphasize that recipients that are also 

employers, employment agencies, or other entities covered by Title I of 

the ADA have additional obligations imposed by that title.

    Paragraph 37.3(e)(9): This paragraph, which refers to the anti-

discrimination provision of the Immigration and Nationality Act, has 

been added at the request of the Department of Justice. This provision 

prohibits: (a) Discrimination on the basis of citizenship status and 

national origin with respect to hiring, firing, or recruitment or 

referral for employment for a fee; and (b) unfair documentary practices 

with respect to verification of employment eligibility.



Section 37.4  What definitions apply to this part?



    To the extent possible, the definitions contained in this section 

are consistent with similar terms used in regulations implementing 

other civil rights legislation that applies to recipients of Federal 

financial assistance. Similarly, where feasible, this Interim Final 

Rule uses the terms contained in the proposed WIA program regulations 

issued by the Department's Employment and Training Administration 

(ETA). However, because this regulation must be compatible with civil 

rights enforcement on a broad scale as well as with ETA's WIA program, 

this rule defines and uses certain terms, such as ``qualified 

interpreter,'' ``recipient,'' ``registrant,'' and ``applicant,'' as 

terms of art, not necessarily identical to the definitions that are 

used elsewhere for the same terms.

    The following list explains the definitions that differ in 

substantive ways, either from their counterparts in 29 CFR 34.2, from 

ETA's program regulations, or from regulations that implement the 

nondiscrimination provisions of other legislation providing Federal 

financial assistance. It also lists definitions that have been borrowed 

from other civil rights regulations, and explains certain definitions 

that might appear to differ substantively from their counterparts in 29 

CFR 34.2, but that have not been substantively changed. Definitions 

that obviously would not be substantively different from those in 

Section 34.2, but that simply would substitute references to WIA for 

references to JTPA, are not listed.

    This list also contains definitions of terms that are not defined 

in the regulations implementing other civil rights legislation that 

applies to recipients of Federal financial assistance, or in WIA's 

program regulations. Generally, these terms either are used solely 

within this part, or have greater significance within this part than 

they do within other regulatory systems. With regard to these terms, 

the list explains the reason each term has been defined, and/or the 

source of the definition.

    Aid, benefits, services, or training: In 29 CFR 34.5, this phrase 

is used to convey to the reader the comprehensive nature of the areas 

in which a JTPA-assisted program or activity could not discriminate on 

the basis of disability. For consistency, the phrase has been adopted 

throughout part 37; generally, it replaces the phrase ``financial aid, 

service, or benefit,'' which was used intermittently in part 34, and 

which has a similar meaning. No substantive change is intended by the 

use of the phrase.

    Section (1) of this definition uses the phrase ``core and intensive 

services.'' These terms are used in WIA to describe



[[ Page 61695]]



two of the three general types of employment and training services that 

are provided to participants under the WIA program (the third type is 

training services). The terms are defined at length in the WIA statute: 

a list of ``core services'' is provided in Section 134(d)(2), and a 

similar list of ``intensive services'' is provided in Section 

134(d)(3)(C). Briefly, ``core services'' are those services available 

at a baseline level to all participants, while ``intensive services'' 

are those services available to individuals who are assessed as needing 

additional assistance in order to find or retain employment. Compare 

Section 134(d)(2) with Section 134(d)(3)(A).

    Section (4) of this definition refers to ``work opportunities.'' 

This term is intended to encompass On-the-Job Training, subsidized 

work, internships, or work experience that a participant obtains 

through a WIA Title I-financially assisted program or activity. See the 

discussion of the definition of ``On-the-Job Training'' later in this 

section.

    Applicant: The passage of WIA has altered the method by which 

individuals seeking federally-assisted aid, benefits, services, or 

training enter the system. The definition of the term ``applicant'' has 

been changed accordingly, to signify that, for purposes of this part, 

an individual is considered an ``applicant'' at the point at which s/he 

submits personal information in response to a request by the recipient 

for such information. Because ETA's program regulations that implement 

other provisions of WIA refer to the ``registration'' process, rather 

than the application process, this part uses the term ``registrant'' 

interchangeably with ``applicant.'' CRC is particularly interested in 

receiving comments on this definition and its effect, if any, on the 

data collection obligations of recipients.

    Departmental grantmaking agency: This definition was added in order 

to help readers distinguish between the meaning of this term and of the 

terms ``grantmaking agency'' and ``Federal grantmaking agency'' as used 

in this part. See the discussion of the definitions of the latter terms 

elsewhere in this section of the preamble.

    Discrimination on the ground of citizenship: This definition is 

identical to the definition of the same term in Section 34.2, except 

that the term ``asylee'' has been inserted into the list of immigration 

statuses that are protected against discrimination. In addition, the 

phrase ``other individuals authorized by the Attorney General to work 

in the United States'' has been amended to ``other immigrants 

authorized * * *.'' These changes have been made for consistency with 

the language of Section 188(a)(5) of WIA.

    These regulations are concerned with nondiscrimination and equal 

opportunity only. They do not limit eligibility or impose preferences 

for services on the basis of citizenship.

    Employment practices: This definition has been moved to the 

definition section from 29 CFR 34.7(a). Consistent with plain-language 

guidelines, the definition also has been slightly rewritten, and has 

been presented in outline form to improve its readability. None of 

these changes is intended to alter the meaning of the definition.

    Employment-related training: This definition has been included in 

response to questions from a number of recipients who were familiar 

with the term as it was defined under the Comprehensive Employment and 

Training Act (CETA), the predecessor statute to JTPA. Under WIA, the 

term is defined more broadly than it was under CETA.

    Entity: This definition is expanded from the definition in 29 CFR 

34.2, to encompass current and potential changes in business 

structures, and to emphasize that such entities as Indian tribes or 

tribal organizations and Native Hawaiian organizations, all of which 

are eligible to receive financial assistance under WIA Title I, are 

included within the definition. See WIA Section 166, ``Native American 

Programs.''

    Facility: This definition is expanded from the definition in 29 CFR 

34.2, in order to follow generally the definition of the same term set 

forth in 28 CFR 35.104, in the regulations implementing Subtitle A of 

Title II of the ADA. That subtitle prohibits discrimination on the 

basis of disability by public entities.

    The reference to ``indoor constructs'' such as office cubicles and 

computer kiosks has been added in order to clarify that recipients may 

be required to alter such constructs to make them accessible to and 

usable by individuals with disabilities. See paragraph (2)(i) of the 

definition of ``reasonable accommodation'' in Section 37.4.

    Federal grantmaking agency: This definition was added in order to 

help readers distinguish between the meaning of this term and of the 

terms ``grantmaking agency'' and ``Departmental grantmaking agency'' as 

used in this part. See the discussion of the definitions of the latter 

terms elsewhere in this section of the preamble.

    Financial assistance and Financial assistance under Title I of WIA: 

As with the term ``applicant,'' the passage of WIA has altered the type 

of financial assistance that will be provided under the WIA program, 

and the way in which that assistance will be provided. The definitions 

of ``financial assistance'' and ``financial assistance under WIA Title 

I'' have been drafted accordingly. The Department is particularly 

interested in receiving comments on these new definitions.

    The new definitions have been modeled on the definitions of the 

term ``financial assistance'' provided in various Federal regulations 

that also deal with nondiscrimination in programs and activities 

receiving Federal financial assistance. Examples include the Office of 

Personnel Management regulations at 5 CFR 900.403(c); the Department of 

Justice regulations at 28 CFR 42.613(e); and the Department of Health 

and Human Services regulations at 45 CFR 86.2(g) and 1203.3(c).

    Paragraph (5) of the definition of ``financial assistance under WIA 

Title I'' includes ``[a]ny other agreement, arrangement, contract, or 

subcontract * * * or other instrument that has as one of its purposes 

the provision of assistance or benefits under WIA Title I.'' Under this 

paragraph, ``financial assistance under WIA Title I'' includes such 

``agreements or arrangements'' as the Memoranda of Understanding (MOUs) 

required by Section 121(c) of WIA, and inclusion on a list of eligible 

training providers. See the discussion of the definition of 

``recipient'' later in this section.

    Fundamental alteration: This definition is derived from the Supreme 

Court's interpretation of the term in the ADA Title II case of Olmstead 

v. Zimring, 119 S.Ct. 2176, 67 USLW 3683, 67 USLW 4567, 1999 WL 407380 

(U.S., June 22, 1999), at 12-13 and n.16.

    Grantmaking agency: This term replaces the term ``granting agency'' 

that was used in 29 CFR part 34. See the discussion of the definitions 

of ``Departmental grantmaking agency'' and ``Federal grantmaking 

agency'' elsewhere in this section.

    Individual with a disability: The definition of this term is 

identical to the definition of the same term in Section 34.2, with the 

following exceptions:

    (1) The reference to homosexuality or bisexuality has been deleted. 

This change is not a substantive change, since Section 1(ii) of the 

definition of the term ``disability'' retains the explanation that the 

term ``impairment'' does not include homosexuality or bisexuality. The 

deletion was made merely to eliminate unnecessary redundancy in the 

rule.



[[ Page 61696]]



    (2) The list of the individuals to whom the term ``individual with 

a disability'' does not apply has been expanded to clarify that with 

regard to employment, there would exist two circumstances under which 

the term would not apply to an individual who has a currently 

contagious disease or infection. Such an individual would not be an 

``individual with a disability'' either if that disease or infection 

prevents him or her from performing the duties of the job in question, 

or if his or her employment, because of that disease or infection, 

would constitute a direct threat to the health and safety of others. 

This change has been made for consistency with the definition of 

``individual with a disability'' enacted by Congress in Title IV, 

Section 403 of WIA, the Rehabilitation Act Amendments of 1998, 29 

U.S.C. 701, Pub.L. 105-220, Title IV, Section 401 et seq., Aug. 7, 

1998, 112 Stat. 1092.

    Labor market area: The definition of this term, which appears in 

the definition of ``population eligible to be served,'' is taken 

directly from Section 101(18) of WIA.

    Local Workforce Investment Area (LWIA) grant recipient: This term 

is new under WIA. The term describes the entity that receives WIA Title 

I financial assistance from a Governor. It replaces the terms ``SDA 

grant recipient'' and ``substate grantee'' that were used under JTPA.

    National Programs: This definition has been rewritten to encompass 

entities receiving financial assistance under Title I, Subtitle D of 

WIA, and to clarify that Job Corps is a National Program under the 

definition.

    On-the-Job Training: This definition is taken directly from Section 

101(31) of WIA. Three words have been added to the definition in order 

to clarify that such training is ``provided to a paid participant while 

the participant is engaged in productive work.''

    Participant and participation: The definitions of these terms 

contain the same elements as the definition of the single term 

``participant'' in 29 CFR 34.2. The rule defines the term 

``participation'' separately in order to help readers better understand 

both terms. Also, the new definitions of the terms ``participant'' and 

``participation'' clarify that the terms encompass individuals who are 

receiving aid, benefits, or training under WIA Title I, as well as the 

``services'' included in the definition in 29 CFR 34.2. In addition, 

because the term ``aid, benefits, services, or training'' is defined as 

including work opportunities obtained through a WIA Title I--

financially assisted program or activity, an individual who obtains 

such opportunities is a ``participant'' under this definition. See the 

discussion of the definition of ``aid, benefits, services, or 

training'' earlier in this section.

    The definition of ``participant'' in part 34 excluded individuals 

receiving ``post-termination and follow-up services.'' However, Section 

134(d)(2)(K) of the WIA statute includes follow-up services among the 

list of ``core services'' that participants may receive; as a result, 

this language has been deleted from the definition of ``participant'' 

in Section 37.4. It should be noted that this definition differs from 

the definition of the term that is included in ETA's regulations 

implementing other provisions of WIA.

    The definition in Section 37.4 clarifies that the term 

``participant'' includes, but is not limited to, applicants receiving 

any services under state Employment Service programs, and claimants 

receiving any services under state Unemployment Insurance programs. 

Because the definition of the term in the JTPA nondiscrimination 

regulations also encompassed such individuals, this clarification is 

not a substantive change. Rather, the clarifying language was included 

simply to recognize that different recipients may use different 

terminology to refer to individuals who receive benefits or services 

under their programs.

    It is important to recognize that under the One-Stop system 

introduced by WIA, various programs and activities that are authorized 

by Federal laws other than WIA may be part of a One-Stop center that 

also provides WIA Title I--financially assisted programs and 

activities. In such cases, any individual who receives aid, benefits, 

services, or training from the One-Stop center is a participant for 

purposes of the nondiscrimination and equal opportunity provisions of 

WIA and this part.

    For example, a One-Stop center may include an Employment Services 

program authorized and financially assisted under the Wagner-Peyser 

Act, 29 U.S.C. 49, as well as core and intensive service programs 

authorized under WIA Title I. Under these circumstances, an individual 

who receives Wagner-Peyser employment services from the One-Stop center 

will fit the definition of ``participant'' in Section 37.4.

    Parties to a hearing: This definition has been amended to clarify 

that in certain cases, a Governor may be a party to a hearing.

    Population eligible to be served: This term is used in the section 

of this rule that explains recipients' obligations regarding 

individuals with limited English skills. See the discussion of Section 

37.35 in this preamble.

    Qualified individual with a disability: This definition has been 

amended for a number of reasons. First, the definition has been 

restructured in order to incorporate the term of art ``aid, benefits, 

services, or training,'' which is introduced and defined in this 

Interim Final Rule. The term is used in the definition of ``qualified 

individual with a disability'' to encompass most, if not all, of the 

circumstances (other than employment) in which a recipient might need 

to determine the qualifications of an individual with a disability to 

receive WIA Title I--financially assisted services, financial or other 

aid, or benefits. See the definition of ``aid, benefits, services, or 

training'' in Section 37.4, and the discussion in this preamble about 

that definition.

    Second, the definition as amended is intended to underscore the 

distinction between the test for determining whether an individual with 

a disability is qualified for such aid, benefits, services, or 

training--including employment-related training--and the test for 

determining whether such an individual is qualified for employment. 

Under paragraph (1) of the definition, such an individual is qualified 

for employment if, with or without reasonable accommodation, he or she 

is capable of performing ``the essential functions of the job.'' The 

definition of the term in 29 CFR 34.2 applied the same test to 

employment-related training. However, employment-related training 

programs are not ``employment,'' and therefore the focus in determining 

whether an individual with a disability is ``qualified'' for such a 

program should be upon whether the individual meets the essential 

eligibility requirements for the program. Paragraph (2) of the 

definition, which relates to aid, benefits, services, or training, has 

been amended accordingly.

    Third, the amended definition is intended to clarify that an 

individual with a disability who is seeking aid, benefits, services, or 

training is qualified if he or she meets the essential eligibility 

requirements for receiving such aid, benefits, services, or training, 

with or without reasonable accommodation or modification. The reference 

to ``reasonable accommodation or reasonable modification'' has been 

added in order to clarify that the definition is intended to encompass 

``situations where an insistence on continuing past requirements and 

practices might arbitrarily deprive genuinely qualified (individuals 

with disabilities) of an



[[ Page 61697]]



opportunity to participate in a covered program.'' Brennan v. Stewart, 

834 F.2d 1248, 1261 (5th Cir. 1988) (discussing Section 504).

    Qualified interpreter: This definition is based on the definition 

of the same term contained in 28 CFR 35.104, the regulations 

implementing Title II of the ADA. In this Interim Final Rule, however, 

the term is used in a broader context, to implement the prohibition of 

discrimination based on national origin as well as the prohibition of 

discrimination against qualified individuals with disabilities. In this 

Rule, the term encompasses the interpretation of spoken and written 

languages, such as Spanish, for individuals with limited English 

skills, as well as interpretation of spoken and written languages into 

symbolic languages, such as American Sign Language, for individuals 

with disabilities.

    Reasonable accommodation: This definition is based on the 

definition of the same term contained in 29 CFR 1630.2, in the 

regulations implementing Title I of the Americans with Disabilities 

Act. Although Title I and its implementing regulations apply the 

concept of ``reasonable accommodation'' only in the context of 

employment, this Interim Final Rule requires recipients to provide 

``reasonable accommodation'' in the additional contexts of aid, 

benefits, services, and training. See Section 37.8.

    Under the requirements of Section 188 of WIA and this part, as well 

as under other Federal civil rights laws and their implementing 

regulations, a recipient must provide both accessible facilities (that 

is, both program accessibility and architectural accessibility) and 

reasonable accommodation for individuals with disabilities. It is 

important to understand the difference between these two requirements.

    Providing accessible facilities requires a recipient to take 

advance actions, in order to be ready when persons with disabilities 

seek aid, benefits, services, training, or employment from that 

recipient at some point in the future. See the discussion of ``program 

accessibility'' and ``architectural accessibility'' in the discussion 

in this preamble about Paragraph 37.3(b).

    By contrast, providing reasonable accommodation for an individual 

with a disability requires the recipient to make efforts to meet the 

specific needs of the particular individual who is currently seeking 

aid, benefits, services, training, or employment from the recipient. 

Reasonable accommodation may require making specific structural or 

other modifications to meet the needs of a particular individual for 

access.

    Recipient: This definition has been amended to clarify that where a 

Governor operates a program or activity, either directly or through a 

State agency, using discretionary funds apportioned to him/her under 

WIA Title I (rather than disbursing the funds to another recipient), 

the Governor is also a recipient. In addition, JTPA-related terminology 

(such as references to SDA and Substate grant recipients) has been 

replaced by WIA-related terminology (such as references to LWIA grant 

recipients), and the list of examples of recipients has been numbered 

and presented vertically, rather than in paragraph form, for greater 

ease of reading. Finally, paragraphs (10) and (11) of the definition, 

``outreach and admissions agencies'' and ``placement agencies,'' have 

been amended to clarify that Job Corps contractors that perform these 

functions are also recipients.

    For purposes of this part, entities that participate as partners in 

a One-Stop delivery system are treated as ``recipients,'' and are 

subject to the nondiscrimination and equal opportunity obligations of 

this part, to the extent that they participate in the One-Stop system. 

Such partners may include, but are not limited to, mandatory and 

additional partners listed in WIA section 121(b), such as entities 

providing employment and training activities carried out under the 

Community Service Block Grant Act (42 U.S.C. 9901 et seq.), or programs 

authorized under section 6(d)(4) of the Food Stamp Act of 1977 

(7.U.S.C. 2015(d)(4)), if these entities participate as partners in the 

One-Stop delivery system.

    With regard to issues involving nondiscrimination and equal 

opportunity, the One-Stop-related programs and activities operated by 

such partners may fall under the jurisdiction of both CRC and the equal 

opportunity office of the Federal grantmaking agency. See Section 

37.85(c) and the discussion thereof in this preamble. As a result, 

local Workforce Investment Boards, when developing and entering into 

MOUs with One-Stop partners pursuant to the requirements of WIA Section 

121(c), should include attention to equal opportunity issues that may 

affect the One-Stop partners or the delivery system. Such issues 

include how discrimination complaints will be handled and how the cost 

of reasonable accommodations will be shared. For its part, CRC is in 

the process of developing MOUs with other Federal grantmaking agencies 

that provide financial assistance to programs and activities in the 

One-Stop delivery system, to ensure the consistent application of 

Federal civil rights law.

    The Department is particularly interested in receiving comments 

regarding the effect of this part upon One-Stop partners.

    Registrant: See the explanation of the term ``applicant'' in this 

section.

    Sectarian activities: This term appears in Section 37.6(f), which 

implements Section 188(e) of WIA. With certain exceptions, that 

statutory section bars participants from being employed to carry out 

the construction, operation, or maintenance of any part of any facility 

that is or will be used for sectarian instruction or religious worship.

    Service provider: Language has been inserted into this definition 

to clarify that the term encompasses any ``provider of aid, benefits, 

services, or training to'' any WIA Title I--financially assisted 

program or activity. The definition of the same term in 29 CFR 34.2 

referred only to the ``operator'' of a JTPA-funded program or activity. 

This change is not a substantive change; it was made only to clarify 

the definition.

    Additional language has been added to the definition to clarify 

that organizations that are selected and/or certified as eligible 

providers of training services under WIA are service providers under 

this Interim Final Rule, regardless of whether any participants 

actually select the organization to provide them with training.

    Small recipient: This definition contains the same requirements as 

the definition in 29 CFR 34.2. The definition has been rewritten to 

explain that such a recipient both (a) serves a total of fewer than 15 

beneficiaries during the entire grant year, and (b) employs fewer than 

15 employees on any given day during the grant year. Again, this 

alteration is not intended as a substantive change; it was made only to 

clarify the definition.

    State Programs: This definition adds language explaining that the 

term includes State Employment Service agencies, and/or State 

unemployment compensation agencies, that operate independently of a 

SESA. Again, this change has been included solely to clarify the 

definition.

    Supportive services: This definition is taken directly from WIA 

Section 101(46).

    Terminee: This definition has been rewritten to explain that the 

term refers to a participant whose participation in the program 

terminates, voluntarily or involuntarily, during the applicable program 

year. Again, this change has



[[ Page 61698]]



been included solely to clarify the definition.

    Undue hardship: As the definition itself notes, the meaning of this 

term differs, depending upon the context in which it is used. The first 

part of the definition explains the meaning of the term in the context 

of reasonable accommodation for individuals with disabilities. This 

part of the definition, like the definition of ``reasonable 

accommodation,'' is based on the definition of ``undue hardship'' 

contained in 29 CFR 1630.2, in the regulations implementing Title I of 

the Americans with Disabilities Act. As explained above in the 

discussion of the definition of ``reasonable accommodation,'' this 

Interim Final Rule requires recipients to provide reasonable 

accommodation to qualified individuals with disabilities with regard to 

aid, benefits, services, and training, as well as employment, except 

where such accommodation would cause undue hardship. See Section 37.7.

    The second part of the definition explains the meaning of the term 

in the context of religious accommodations. This part of the definition 

is based on Supreme Court decisions, most notably the leading case of 

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 81, 84 (1977).

    WIA Title I--financially assisted program or activity: This 

definition contains the same elements as the definition of the term 

``JTPA-funded program or activity'' in 29 CFR 34.2. The definition has 

been presented in outline form to improve its readability.

    The remainder of the definitions in Section 37.4 are either 

unchanged from their counterparts in 29 CFR 34.2, or have been changed 

merely to refer to WIA rather than JTPA.



Section 37.5  What forms of discrimination are prohibited by this part?



    This section is identical to 29 CFR 34.3, except that references to 

JTPA have been changed to refer to WIA.



Section 37.6  What specific discriminatory actions, based on prohibited 

grounds other than disability, are prohibited by this part?



    This section contains the same requirements as 29 CFR 34.4. 

Differences between this regulation and the JTPA regulation are 

explained below.

    Paragraph 37.6(a): This paragraph is identical to the first 

sentence of 29 CFR 34.4(a), except that references to JTPA have been 

changed to refer to WIA.

    Paragraph 37.6(b): This introductory paragraph is identical to the 

second sentence of 29 CFR 34.4(a).

    Paragraphs 37.6(b)(1)-(7): These paragraphs are identical to 29 CFR 

34.4(a)(1)-(7), with the following exceptions:

    (1) references to ``service, financial aid, or benefit'' have been 

changed to ``aid, benefits, services, or training,'' as explained in 

the discussion of the definition of the latter term in Section 37.4 

above; and

    (2) references to JTPA have been changed to refer to WIA.

    Paragraph 37.6(b)(8): This paragraph is identical to 29 CFR 

34.4(a)(10), except that a reference to WIA Title I has been inserted.

    Paragraphs 37.6(c)(1)-(2): These paragraphs contain requirements 

similar to those in 29 CFR 34.4(a)(8) and (9). Paragraph 37.6(c)(1) 

signifies that a recipient must not provide significant assistance 

under any circumstances to any agency, organization, or person that 

discriminates on a prohibited ground. Similarly, Paragraph 37.6(c)(2) 

signifies that except where doing so would cause undue hardship, a 

recipient may not refuse to accommodate an individual's religious 

practices or beliefs, even if the refusal is not based on dislike of or 

disagreement with the individual's religion. Again, this alteration is 

not intended as a substantive change from the regulations implementing 

JTPA; the change was made only to clarify the intent of the 

regulations.

    As in other paragraphs, references to JTPA have been changed to 

refer to WIA.

    Paragraph 37.6(d): This paragraph contains the same requirements as 

29 CFR 34.4(b). Consistent with plain-language guidelines, the 

paragraph has been organized slightly differently from the JTPA 

paragraph, and presented in outline form to improve its readability. 

Also, the word ``outreach'' has been added to the list of examples of 

the types of administrative determinations in which discrimination is 

prohibited. Because the list, both in the corresponding JTPA regulation 

and in this paragraph, is exemplary rather than restrictive, the 

addition of this word makes no substantive change in the paragraph.

    For consistency with the language of Section 37.7, the reference to 

``standards, procedures or criteria'' has been changed to ``standards, 

procedures, criteria, or administrative methods.'' See the discussion 

in this preamble about Paragraph 37.7(e). Similarly, the paragraph has 

been reworded to prohibit practices that defeat or substantially impair 

accomplishment of the objectives of ``the nondiscrimination and equal 

opportunity provisions of WIA and this part,'' as well as those of the 

program or activity in question.

    As in other paragraphs, references to JTPA have been changed to 

refer to WIA.

    Paragraph 37.6(e): This paragraph contains the same requirements as 

29 CFR 34.4(c). Again, consistent with plain-language guidelines, the 

paragraph has been organized slightly differently from the JTPA 

paragraph, and presented in outline form to improve its readability. 

Also, references to JTPA have been changed to refer to WIA.

    Paragraph 37.6(f): This paragraph prohibits participants in a WIA 

Title I--financially assisted program or activity from being employed 

or trained to construct, operate, or maintain any part of a facility 

that is or will be used primarily for sectarian instruction or 

religious worship. This paragraph is directly based on, and implements, 

Section 188(a)(3) of WIA.

    Paragraph 37.6(g): This paragraph is identical to 29 CFR 34.4(d).



Section 37.7  What specific discriminatory actions based on disability 

are prohibited by this part?



    This section contains the same requirements as 29 CFR 34.5, with 

additional material modeled on the regulations implementing Title II of 

the ADA. Differences between this section and the corresponding 

sections of the JTPA nondiscrimination regulations or ADA regulations 

are discussed below.

    Paragraphs 37.7(a)(1)-(3): These paragraphs are identical to 29 CFR 

34.5(a)(1)-(3), except that references to JTPA have been changed to 

refer to Title I of WIA.

    Paragraph 37.7(a)(4): This paragraph is identical to 29 CFR 

34.5(a)(4), with the following exceptions:

    (1) The paragraph specifies that, except when necessary to 

accommodate a qualified individual with a disability, a recipient may 

not provide ``segregated'' aid, benefits, services, or training to 

individuals with disabilities. This addition is intended to clarify and 

emphasize that a recipient may provide special programs or activities 

designed for and limited to individuals with disabilities, but may not 

require that individuals with disabilities attend only such programs or 

activities. In other words, qualified individuals with disabilities 

must be offered the option of participating in the same programs or 

activities that are offered to non-disabled individuals. This change is 

not intended to provide a substantive change from the JTPA



[[ Page 61699]]



nondiscrimination regulations. It was inserted only to clarify the 

intent of the regulations.

    (2) The beginning of 29 CFR 34.5(a)(4) prohibits recipients from 

providing different or separate ``aid, benefits, or services'' to 

individuals with disabilities; the end of the same paragraph refers to 

``aid, benefits, services or training.'' For consistency, the paragraph 

has been modified to refer to ``aid, benefits, services, or training'' 

in both places. Again, this change is not intended to provide a 

substantive change from the meaning of the regulations implementing 

JTPA.

    Paragraphs 37.7(a)(5)-(6): These paragraphs are identical to 29 CFR 

34.5(a)(6)-(7), except that references to JTPA have been changed to 

refer to Title I of WIA.

    Paragraph 37.7(b): This paragraph tracks the language of 29 CFR 

34.5(a)(5). Like Paragraph 37.6(c)(1), it has been placed in a separate 

paragraph to clarify that a recipient must not provide significant 

assistance to any agency, organization, or person that discriminates on 

the basis of disability, even if the recipient has no discriminatory 

motivation in providing the assistance.

    Paragraphs 37.7(c)-(d): These paragraphs are identical to 29 CFR 

34.5(b)-(c), except that references to JTPA have been changed to refer 

to Title I of WIA.

    Paragraph (d) requires recipients to administer WIA Title I-

financially assisted programs and activities in ``the most integrated 

setting appropriate to the needs of qualified individuals with 

disabilities.'' This language means that the recipient must provide 

programs or activities in a setting that enables individuals with 

disabilities to interact with non-disabled persons to the fullest 

extent possible.

    Paragraph 37.7(e): This paragraph contains the same requirements as 

29 CFR 34.5(d). Differences between the paragraph and the corresponding 

paragraphs of the JTPA nondiscrimination regulations are explained 

below.

    (1) Consistent with plain-language guidelines, the word ``utilize'' 

in Paragraph 34.5(d) has been replaced by ``use.''

    (2) For consistency with the language of Section 37.6(d), the 

reference to ``criteria or administrative methods'' has been changed to 

``standards, procedures, criteria, or administrative methods.'' See the 

discussion in this preamble about Paragraph 37.6(d).

    (3) Paragraph 34.5(d)(1) prohibited the use of such methods that 

have ``the effect of'' discriminating against qualified individuals 

with disabilities. This wording has been changed to prohibit methods 

that have ``the purpose or effect of'' such discrimination. This 

addition was made for two reasons:

    (a) because WIA Section 188 makes clear that purposeful 

discrimination against qualified individuals with disabilities is also 

prohibited; and

    (b) to make the language of Paragraph 34.5(d)(1) consistent with 

the language of the remaining paragraphs in the section, which prohibit 

activities that have ``the purpose or effect of'' discrimination.

    (3) References to JTPA have been changed to refer to Title I of 

WIA.

    None of these changes is intended to alter the meaning of the 

paragraphs from the meaning of the corresponding paragraphs in the JTPA 

nondiscrimination regulations.

    Paragraph 37.7(f): This paragraph contains the same requirements as 

29 CFR 34.5(e). Consistent with plain-language guidelines, the 

paragraph has been organized slightly differently from the 

corresponding paragraph in the JTPA nondiscrimination regulations, and 

presented in outline form to improve its readability. Also, references 

to JTPA have been changed to refer to WIA.

    Paragraphs 37.7(g)-(h): These paragraphs are based on 28 CFR 

35.130(b)(5)-(6), from the regulations implementing Title II of the 

ADA. Differences between the paragraphs and the corresponding 

paragraphs of the ADA Title II regulations are explained below.

    (1) Two changes have been made in order to tailor the regulations 

to the requirements of the WIA program:

    (a) The reference in Paragraph 37.7(g) to ``procurement 

contractors'' has been changed to ``contractors'; and

    (b) References to ``public entity'' have been changed to 

``recipient'; and

    (2) References to the ADA have been replaced by references to WIA.

    These provisions have been modeled upon the ADA Title II 

regulations in order to ensure that requirements under Section 188 of 

WIA follow generally the requirements of ADA Title II. Many recipients 

of WIA Title I financial assistance are also subject to the 

requirements of Title II, which applies to public entities including 

State and local governments and their departments, agencies, and 

instrumentalities. See 42 U.S.C. 12131. Modeling the WIA regulations on 

the ADA Title II regulations ensures that these recipients are subject 

to similar obligations and responsibilities under both laws.

    Paragraph 37.7(h), which discusses licensing and certification 

programs, gives CRC jurisdiction only over recipients of WIA Title I 

financial assistance. For example, a state electrician certification 

program run by a State agency that does not benefit from WIA Title I 

financial assistance would not be required to comply with this 

paragraph. Such an agency would, however, be required to comply with 

the similar requirements set forth in 28 CFR 35.130(b)(6), in the ADA 

Title II regulations.

    Paragraphs 37.7(i)-(l): These paragraphs are based on 28 CFR 

35.130(b)(8), (c), (f), and (g), from the regulations implementing 

Title II of the ADA. Differences between the paragraphs and the 

corresponding paragraphs of the ADA Title II regulations are explained 

below.

    (1) References to ``public entity'' have been changed to 

``recipient'; and

    (2) References to ``service(s)'' have been changed to ``aid, 

benefits, services, or training.''

    Both of these changes have been made in order to tailor the 

regulations to the requirements of the WIA program. Neither change is 

intended to alter the meaning of the paragraphs.

    Paragraph 37.7(m): This paragraph is identical to 29 CFR 34.5(g), 

except that additional punctuation has been added to improve the 

material's clarity.

    Paragraph 37.7(n): This paragraph contains the same requirements as 

29 CFR 34.5(h). The paragraph has been presented in outline form to 

improve its readability.

    Paragraph 37.7(o): This paragraph is based on 28 CFR 35.130(e), 

from the regulations implementing Title II of the ADA, except that 

references to the ADA have been replaced by references to WIA. This 

change is not intended to alter the meaning of the paragraph.



Section 37.8  What are a recipient's responsibilities regarding 

reasonable accommodation and reasonable modification for individuals 

with disabilities?



    This section is based on 28 CFR 35.130(b)(7), which requires public 

entities to make ``reasonable modifications'' in ``policies, practices 

or procedures when the modifications are necessary to avoid 

discrimination on the basis of disability.'' To this requirement has 

been added the obligation that in providing aid, benefits, services, 

training, or employment, a recipient must make ``reasonable 

accommodation'' for qualified individuals with disabilities.

    The two concepts are similar in that they both require a recipient 

to consult



[[ Page 61700]]



with each individual with a disability who requests an accommodation(s) 

or modification(s); to make an individual determination about the 

alterations necessary in each case; and to take appropriate action 

based upon that determination. The concepts differ, however, in the 

standards used to determine ``reasonableness.'' An accommodation is 

``reasonable'' unless providing the requested accommodation would cause 

the recipient undue hardship. A modification, by contrast, is 

``reasonable'' unless making the modification would require a 

fundamental alteration in the nature of the service, program, or 

activity that the recipient is providing. See the definitions of 

``fundamental alteration,'' ``reasonable accommodation,'' and ``undue 

hardship'' in Section 37.4.

    The EEOC's Enforcement Guidance on Reasonable Accommodation and 

Undue Hardship Under the Americans with Disabilities Act may help 

recipients and others understand these concepts, particularly as 

applied in the employment context. The Guidance is available from EEOC 

or through EEOC's web site at www.eeoc.gov.

    The procedures, set forth in paragraphs 37.8(a)(1)-(2) and (b)(1)-

(2), that a recipient must follow in determining whether a requested 

accommodation would cause undue hardship, or a requested modification 

would result in a fundamental alteration, are derived from the 

procedures set forth in 29 CFR 34.6(f)(1)-(3) for making similar 

determinations with regard to communications with individuals with 

disabilities. See the discussion in this preamble about Paragraphs 

37.9(f)(1)-(3).



Section 37.9  What are a recipient's responsibilities to communicate 

with individuals with disabilities?



    Generally, this section contains the same requirements as 29 CFR 

34.6. Differences between the section and the corresponding section of 

the JTPA nondiscrimination regulations are described below.

    Paragraph 37.9(a): This paragraph requires recipients to ensure 

that communication with certain groups of individuals with disabilities 

are as effective as communications with others. The paragraph is 

identical to Paragraph 34.6(a), except that the term ``registrants'' 

has been added to the list of such groups. The addition is necessary in 

order to tailor the regulations to the requirements of the WIA program. 

This change is not intended to alter the meaning of the paragraph.

    Paragraph 37.9(b): Two words have been added to this paragraph in 

order to clarify its meaning. The first sentence of the paragraph 

requires a recipient to ``furnish appropriate auxiliary aids or 

services when necessary'' to give individuals with disabilities an 

equal opportunity to participate in the program or activity that 

receives Federal financial assistance. However, the second sentence of 

29 CFR 34.6(b) referred only to a recipient's obligation to determine 

what auxiliary aids or services are ``necessary.'' In order to 

eliminate confusion, the phrase ``appropriate and'' has been added to 

the second sentence, so that it now refers to a recipient's obligation 

to determine what auxiliary aids or services are ``appropriate and 

necessary.''

    Paragraph 37.9(c): The JTPA counterpart to this paragraph is 29 CFR 

34.6(c). That paragraph was written in the passive voice. The paragraph 

has been shifted to the active voice, to clarify that the recipient has 

the responsibility of using telecommunications devices for individuals 

with hearing impairments, or other equally effective communications 

systems, in order to communicate by telephone with such individuals. 

Additionally, the acronym ``TTY,'' which is occasionally used as an 

alternative to the acronym ``TDD'' for such communications systems, has 

been added.

    The phrase ``telephone relay services,'' which has been added as an 

example of an ``equally effective communications system,'' refers to 

services established under Title IV of the ADA to permit communications 

between individuals who communicate by TDD/TTY and individuals who 

communicate by the telephone alone. These relay services involve a 

relay operator using both a standard telephone and a TDD/TTY to type 

the voice messages to the TDD/TTY user and read the TDD/TTY messages to 

the standard telephone user. Where such relay services are available, a 

recipient may use these services to meet the requirements of this 

section. However, where the recipient has extensive telephone contact 

with the public, or where the provision of telephone services is a 

major function of the recipient, the recipient should use TDDs/TTYs to 

ensure more immediate access.

    Paragraph 37.9(d): This paragraph is identical to 29 CFR 34.6(d), 

except that, consistent with plain language principles, the term 

``shall'' has been replaced by ``must.''

    Paragraphs 37.9(e)(1) and (2): These paragraph generally contain 

the same information as 29 CFR 34.6(e). The information has been 

presented in outline form to improve its readability. In addition, two 

sentences have been added to Paragraph 37.9(e)(1) to emphasize that 

``signage'' is a term of art and to explain the standards that signage 

must meet under the regulations.

    Paragraphs 37.9(f)(1)-(3): These paragraphs, which deal with 

circumstances in which a recipient believes that a particular action 

would result in a fundamental alteration to the nature of a service, 

program, or activity, contain the same requirements as 29 CFR 

34.6(f)(1)-(3). Because the Interim Final Rule (unlike the JTPA 

nondiscrimination regulations) includes a definition of ``fundamental 

alteration'' that incorporates the concept of ``undue financial and 

administrative burdens,'' that phrase is now redundant, and has been 

omitted from the paragraphs. See the discussion in this preamble about 

the definition of ``fundamental alteration'' in Section 37.4. In 

addition, references to JTPA have been changed to refer to WIA. None of 

these changes is intended to alter the meaning of these paragraphs.



Section 37.10  To what extent are employment practices covered by this 

part?



    This section contains information similar to that in 29 CFR 

34.7(b)-(g). References to JTPA have been changed to refer to WIA. In 

addition, the reference to Equal Employment Opportunity Commission 

``guidelines'' has been changed to ``guidance,'' and the material in 29 

CFR 34.7(a), which defines the term ``employment practices,'' has been 

moved to the definition section (Section 37.4) in this Interim Final 

Rule. These changes are not intended to alter the meaning of the 

section.

    Paragraph 37.10(a)(1) and (2): These paragraphs contain information 

similar to that in 29 CFR 34.7(b). Language has been added to this 

paragraph to clarify that the section applies to the employment 

practices of any program or activity that is part of the One-Stop 

delivery system and is operated by a One-Stop partner listed in Section 

121(b) of WIA, to the extent that the program or activity is being 

conducted as part of the One-Stop delivery system. In addition, the 

information has been presented in outline form to improve its 

readability.

    Paragraph 37.10(d): The corresponding paragraph in the JTPA 

nondiscrimination regulations, 29 CFR



[[ Page 61701]]



34.7(e), stated that part 34 did not affect recipients' obligations to 

comply with the provisions of Subparts B and C and Appendix A of 29 CFR 

part 32. As noted in the discussion in this preamble about Paragraph 

37.3(b), that paragraph has been amended to incorporate the cited 

provisions by reference. This paragraph has been amended accordingly.

    Paragraph 37.10(f): This paragraph, which notes that recipients 

should be aware of their obligations to comply with the anti-

discrimination provisions of the Immigration and Nationality Act, has 

been added at the request of the Department of Justice. See the 

discussion in this preamble about Paragraph 37.3(c)(9).



Section 37.11  To what extent are intimidation and retaliation 

prohibited by this part?



    This section contains the same requirements as 29 CFR 34.8. 

Consistent with plain-language guidelines, the section has been 

organized slightly differently from the JTPA section, and presented in 

outline form to improve its readability. Also, references to JTPA have 

been changed to refer to WIA. None of these changes is intended to 

alter the meaning of the section.



Section 37.12  What Department of Labor office is responsible for 

administering this part?



    This section contains the same requirements as 29 CFR 34.9(a). The 

section refers to the Civil Rights Center, or CRC, which was known as 

the Directorate of Civil Rights, or DCR, at the time the JTPA 

nondiscrimination regulations were promulgated. Also, references to 

JTPA in the previous section have been changed in this section, where 

appropriate, to refer to WIA. Neither of these changes is intended to 

alter the meaning of this section.

    Some recipients have expressed confusion about which Department of 

Labor agency they should contact for answers to questions about the 

nondiscrimination and equal opportunity requirements of the JTPA and 

WIA programs. This confusion is understandable: the Department's 

Employment and Training Administration (ETA) is responsible for, and 

has expertise about, most aspects of the JTPA and WIA programs. As a 

result, recipient staff members are accustomed to approaching ETA 

personnel for answers to JTPA- and WIA-related questions. However, CRC, 

rather than ETA, is responsible for, and has expertise about, the 

particular aspects of the JTPA and WIA programs relating to 

nondiscrimination and equal opportunity. Recipients will therefore be 

able to receive more expeditious answers to questions about these 

aspects of the programs by contacting CRC directly.



Section 37.13  Who is responsible for providing interpretations of this 

part?



    This section is identical to 29 CFR 34.9(b), except that the 

reference to JTPA has been changed to refer to WIA. This change is not 

intended to alter the meaning of this section. See the discussion of 

Section 37.12 above.



Section 37.14  Under what circumstances may the Secretary delegate 

responsibility under this part?



    This section is identical to 29 CFR 34.12(a) and (b), with the 

following exceptions:

    (1) The references to other regulatory sections within part 34 have 

been changed to reflect the numbering of this Interim Final Rule; and

    (2) References to JTPA have been changed to refer to WIA.

    Neither of these changes is intended to alter the meaning of this 

section.



Section 37.15  What are the Director's responsibilities to coordinate 

with other civil rights agencies?



    This section generally contains the same requirements as 29 CFR 

34.12(c). At the request of the Department of Justice, a reference to 

the anti-discrimination provision of the Immigration and Nationality 

Act has been added to the list of laws with regard to which the 

Director must coordinate with other Federal civil rights agencies. See 

the discussion in this preamble about Paragraph 37.3(c)(9).

    In addition, consistent with plain-language guidelines, this 

section has been organized slightly differently from the JTPA section, 

and presented in outline form to improve its readability. Also, 

references to JTPA have been changed to refer to WIA. Neither of the 

latter changes is intended to alter the meaning of this section.



Section 37.16  What is this part's effect on a recipient's obligations 

under other laws, and what limitations apply?



    Paragraphs (a) and (b) of this section are identical to the 

corresponding paragraphs in 29 CFR 34.11, except that references to 

JTPA have been changed to refer to WIA. This change is not intended to 

alter the meaning of the paragraphs.

    Paragraph (a) of this section means that a recipient is not excused 

from complying with the nondiscrimination and equal opportunity 

provisions of WIA and this part, even if a State or local law requires 

the recipient to discriminate on a prohibited ground.

    Similarly, paragraph (b) of this section means that no rule or 

regulation of a private organization, club, league, or association that 

requires a recipient to discriminate on a prohibited ground excuses a 

recipient from complying with the nondiscrimination and equal 

opportunity provisions of WIA and this part.

    Paragraph (c) of this section contains the same requirements as 29 

CFR 34.11(c). It has been rewritten to improve its clarity. The 

paragraph bars recipients, while recruiting, selecting, or placing 

individuals in programs or activities, from considering whether job 

opportunities in any particular occupation or profession will be open 

to qualified individuals with disabilities, or to persons of a certain 

race, color, religion, sex, national origin, age, political affiliation 

or belief, or citizenship. For example, a recipient operating a WIA 

Title I--financially assisted training program must not steer women 

away from training programs for construction work because the recipient 

believes that women will have difficulty finding jobs in construction. 

This paragraph does not change the recipient's general obligation under 

WIA to assure that training is focused on occupations that are in 

demand.



Subpart B--Recordkeeping and Other Affirmative Obligations of 

Recipients



    The requirements in this subpart are generally similar to the 

requirements in Subpart B of part 34. Consistent with plain-language 

guidelines, some of the sections within the subpart have been 

rearranged in a more logical order, and lengthy sections have been 

divided into shorter sections treating narrower topics. These changes 

are not intended to alter the overall meaning of this subpart, or the 

meaning of any of its component sections.



Assurances



Section 37.20  What is a recipient's obligation to provide a written 

assurance?



    This section contains the same requirements as 29 CFR 34.20(a) and 

(b). Differences between this section and the corresponding section of 

the JTPA nondiscrimination regulations are described below.

    Paragraph 37.20(a)(1): In this paragraph, the introductory 

paragraph has been rewritten to eliminate redundancy, and the required 

assurance has been rewritten consistent with plain-language guidelines. 

These



[[ Page 61702]]



changes are not intended to alter the meaning of the assurance or the 

paragraph.

    The rewritten assurance states that the recipient must not 

discriminate on the basis of ``citizenship/status as a lawfully 

admitted immigrant authorized to work in the United States.'' This 

change has been made to convey more accurately the definition of 

``discrimination on the ground of citizenship'' contained in Section 

37.4.

    Paragraphs 37.20(a)(2): These paragraphs are identical to 29 CFR 

34.20(a)(2) and (b), with the following exceptions:

    (1) The references to other regulatory sections within part 34 have 

been changed to reflect the numbering of this Interim Final Rule; and

    (2) References to JTPA have been changed to refer to WIA.

    Neither of these changes is intended to alter the meaning of these 

paragraphs.



Section 37.21  How long will the recipient's obligation under the 

assurance last, and how broad is the obligation?



    This section contains the same general requirements as 29 CFR 

34.20(c). References to JTPA have been changed to refer to Title I of 

WIA, and the material has been presented in outline form to improve its 

clarity. In addition, two new clauses have been added. The first clause 

extends the obligation for the period during which the property is used 

``for another purpose involving the provision of * * * services or 

benefits'' that are similar to those provided under WIA Title I. This 

clause has been added for consistency with other Federal regulations 

involving Federally-assisted programs. See, e.g., 28 CFR 42.105(a)(1) 

(implementing Title VI); 34 CFR 100.4(a)(1) (applying Title VI to 

programs assisted through the Department of Education).

    The second new clause extends the obligation under the assurance to 

a transferee for the period until the transferee has compensated the 

Departmental grantmaking agency for the fair market value of the 

property transferred. This clause has been added in order to ensure 

that a transferee may not benefit from a transfer of property under the 

WIA Title I program without being subjected to the nondiscrimination 

and equal opportunity obligations of WIA and this part.



Section 37.22  How must covenants be used in connection with this part?



    Generally, this section contains the same requirements as 29 CFR 

34.20(d). References to JTPA have been changed to refer to Title I of 

WIA. In addition, paragraph (a) has been amended to require that the 

covenant must assure compliance with the nondiscrimination and equal 

opportunity provisions for the period described in Section 37.21. 

Additionally, the clause, described in the discussion of Section 37.21, 

that extends the obligation for the period during which the property is 

used ``for another purpose involving the provision of similar services 

or benefits'' has been added to this section as well. See the 

discussion of Section 37.21 above.



Equal Opportunity Officers



Section 37.23   Who must designate an Equal Opportunity Officer?



    This section is based on the first sentence of 29 CFR 34.22(a). The 

section is not intended to alter the requirements of the corresponding 

JTPA regulation with regard to the entities that are required to 

designate Equal Opportunity Officers (``EO Officers'').



Section 37.24  Who is eligible to serve as an Equal Opportunity 

Officer?



    The material in this section is new. It is intended to clarify and 

emphasize the significance and level of authority that recipients must 

give to the Equal Opportunity Officer position, and to the individual 

who holds that position. Much (though by no means all) of the 

responsibility for a recipient's nondiscrimination and equal 

opportunity program rests on the shoulders of the EO Officer. CRC's 

experience has demonstrated that in order for such programs to function 

fairly and effectively, the EO Officer must be a senior-level employee 

whose responsibilities in the position present no conflicts of interest 

with his or her other responsibilities. In addition, the recipient must 

establish clear lines of authority and accountability for the program, 

and must provide the EO Officer with appropriate levels of support. See 

the discussion of Sections 37.25 and 37.26 below.

    As with part 34, this section does not require that recipients 

designate a separate or additional EO Officer to implement the 

nondiscrimination obligations imposed by WIA and this part. Nor is this 

section intended to require that the WIA EO Officer be employed in that 

position full-time. Recipients may still use their existing EO Officer 

and staff (assuming that the EO Officer meets the requirements of this 

section), or assign additional, non-WIA-related duties to a newly-

appointed EO Officer, so long as the EO Officer is able to give top 

priority to, and to adequately accomplish all of, his/her 

responsibilities under the nondiscrimination and equal opportunity 

provisions of WIA and this part.



Section 37.25  What are the responsibilities of an Equal Opportunity 

Officer?



    This section consolidates and clarifies the responsibilities that 

were conferred on EO Officers under 29 CFR part 34. The source of each 

proposed paragraph is set forth below.

    The list of responsibilities provided in this section is not 

intended to be exclusive. The EO Officer must also perform any 

additional duties that may arise from his/her administration of the 

recipient's nondiscrimination and equal opportunity obligations under 

WIA and this part.

    Paragraph 37.25(a): This paragraph, which requires the EO Officer 

to serve as the recipient's liaison with CRC, contains one of the 

recipients' responsibilities listed in 29 CFR 34.22(a). Other 

responsibilities listed in that paragraph of the JTPA nondiscrimination 

regulations are discussed in appropriate sections below.

    This paragraph of the Interim Final Rule signifies that the EO 

Officer and his/her staff will serve as the point of contact for all 

recipient personnel who have questions about WIA's nondiscrimination 

and equal opportunity program. The EO Officer will have both expertise 

in the subject and an ongoing relationship with CRC staff. Because of 

that expertise, the EO Officer may be able to answer recipient staff 

members' questions based on his or her own knowledge of the program.

    In addition, CRC has found this requirement to be a significant 

component of a program with clear lines of authority and 

accountability, as discussed in Section 37.24 above. Having a single 

point of contact, at both the recipient and departmental levels, helps 

to ensure a consistent interpretation and application of the 

requirements of the nondiscrimination and equal opportunity provisions 

of WIA and this part. See the discussion above about Section 37.12.

    Paragraphs 37.25(b)-(c): These paragraphs require the EO Officer to 

monitor the activities of the recipient and its recipients to ensure 

that the recipients' nondiscrimination and equal opportunity 

obligations are not being violated, and to review their written 

policies to ensure that those policies are nondiscriminatory. CRC's 

experience has demonstrated that these two responsibilities are an 

integral part of the most effective equal opportunity programs of 

recipients under JTPA.



[[ Page 61703]]



    These paragraphs are not intended to impose additional 

responsibilities upon recipients or their EO Officers. The paragraphs 

are intended merely to clarify the responsibilities that were already 

imposed under the JTPA program, and to emphasize that the EO Officer 

should take a leadership role in the operation of the recipient's 

nondiscrimination and equal opportunity programs.

    Paragraph 37.25(d): This paragraph, which requires the EO Officer 

to adopt, publish, and oversee the recipient's procedures for 

processing discrimination complaints, contains the same requirements as 

29 CFR 34.42(b).

    Paragraphs 37.25(e)-(g): These paragraphs contain the 

responsibilities of EO Officers that are listed in 29 CFR 34.22(a). 

Other responsibilities listed in that paragraph of the JTPA 

nondiscrimination regulations belong to recipients and are listed 

above, in Paragraph 37.25(a), or below, in Section 37.26.



Section 37.26  What are a recipient's obligations relating to the Equal 

Opportunity Officer?



    This section consolidates and clarifies the obligations that were 

conferred on recipients under 29 CFR part 34 regarding their EO 

Officers. The source of each paragraph is set forth below.

    Paragraph 37.26(a): This paragraph, which requires recipients to 

publicize the EO Officer's name and contact information, contains the 

same requirements, in a more detailed form, as the last sentence of 29 

CFR 34.22(a).

    Paragraph 37.26(b): This paragraph clarifies that where a recipient 

provides internal and external notice about its nondiscrimination and 

equal opportunity programs, it must also provide information about ways 

to contact its EO Officer. See 29 CFR 34.23(a) and (b), and the 

discussion of Sections 37.29 through 37.31, 37.34, and 37.36 below.

    Paragraph 37.26(c): This paragraph is based on 29 CFR 34.22(b). It 

has been rewritten to emphasize that, as explained in the discussion of 

Section 37.24 above, the success of a recipient's nondiscrimination and 

equal opportunity program depends heavily upon the tangible and 

intangible support that the recipient provides to its EO Officer, and 

that the recipient's top management should provide a significant 

percentage of that support.

    Paragraph 37.26(d): This paragraph requires a recipient to ensure 

that the EO Officer and his/her staff are afforded the opportunity to 

receive the training necessary and appropriate to maintain competency. 

This requirement is based on the language 29 CFR 34.22(a) which 

required the recipient to pay for any training that the Director 

required its EO Officer and staff to take. The requirement has been 

rewritten to emphasize that the recipient is responsible for ensuring 

that its EO Officer and staff maintain the level of knowledge, skills, 

and abilities necessary to carry out their responsibilities fully and 

effectively, and that the training needed to maintain this level of 

competency in a particular case, or for a particular recipient, may be 

more extensive than the training that the Director requires.



Section 37.27  What are the obligations of small recipients relating to 

Equal Opportunity Officers?



    This section contains the same requirements as 29 CFR 34.22(c). 

Consistent with plain-language guidelines, the section has been 

slightly rewritten to improve its clarity. Also, the reference to other 

regulatory sections within part 34 has been changed to reflect the 

numbering of this Interim Final Rule. These changes are not intended to 

alter the meaning of this section.



Section 37.28  What are the obligations of service providers relating 

to Equal Opportunity Officers?



    This section contains the same requirements as 29 CFR 34.22(d). As 

with Section 37.27, the section has been slightly rewritten, and the 

reference to another regulatory section within part 34 has been changed 

to reflect the numbering of this Interim Final Rule. Also, JTPA-related 

terminology (the references to SDA grant recipients and Substate 

grantees) has been replaced by WIA-related terminology (the reference 

to LWIA grant recipients). Again, these changes are not intended to 

alter the meaning of this section.



Notice and Communications



Section 37.29  What are a recipient's obligations to disseminate its 

equal opportunity policy?



    This section contains the same requirements as 29 CFR 34.23(a)(1), 

with the addition of related material from 34.23(a)(7). Consistent with 

plain-language guidelines, the section has been organized slightly 

differently from 29 CFR 34.23(a)(1), and has been presented in outline 

form to improve its readability. Also, WIA-related terminology (the 

reference to ``registrants'') has been added where appropriate, and the 

reference to another regulatory section within part 34 has been changed 

to reflect the numbering of this Interim Final Rule. None of these 

changes is intended to alter the meaning of this section.



Section 37.30  What specific wording must the notice contain?



    This section contains the same requirements as 29 CFR 34.23(a)(5). 

Both the introductory language and the notice have been rewritten 

consistent with plain-language guidelines. Also, references to JTPA 

have been replaced by references to WIA Title I, and the time frame 

within which a recipient must process a complaint has been extended to 

90 days, consistent with the changes included in this Interim Final 

Rule. See the discussion of Section 37.76 in this preamble; see also 

the notice in Section 37.30 of the Interim Final Rule.

    The rewritten notice states that the recipient must not 

discriminate on the basis of ``citizenship/status as a lawfully 

admitted immigrant authorized to work in the United States.'' This 

change has been made to convey more accurately the definition of 

``discrimination on the ground of citizenship'' contained in Section 

37.4.

    The notice contains references to a document entitled a ``Notice of 

Final Action.'' As discussed in Section 37.76 of this preamble, the 

``Notice of Final Action'' is merely a formal name for a document that 

a recipient was required under part 34 to issue when it finished 

processing a discrimination complaint. Therefore, the reference to a 

``Notice of Final Action'' is not a substantive change to the notice 

required by this section.



Section 37.31  Where must the notice required by Sections 37.29 and 

37.30 be published?



    This section contains the same requirements as 29 CFR 34.23(a)(2) 

and (3). Consistent with plain-language guidelines, the section has 

been organized slightly differently from the JTPA nondiscrimination 

regulations, and has been presented in outline form to improve its 

readability. Also, the reference to another regulatory paragraph within 

part 34 has been changed to reflect the numbering of this Interim Final 

Rule. None of these changes is intended to alter the meaning of the 

section.

    A reference to ``electronic communications'' has been added to 

Section 37.31(a)(2), to reflect the growth in computer technology, and 

the related expansion of electronic communications, that have taken 

place since the JTPA nondiscrimination regulations were promulgated in 

1992.



[[ Page 61704]]



Section 37.32  When must the notice required by Sections 37.29 and 

37.30 be provided?



    This section contains the same requirements as 29 CFR 34.23(a)(4). 

Consistent with plain-language guidelines, the section has been 

organized slightly differently from the JTPA nondiscrimination 

regulations. Also, the reference to another regulatory paragraph within 

part 34 has been changed to reflect the numbering of this Interim Final 

Rule. Neither of these changes is intended to alter the meaning of the 

paragraph.



Section 37.33  Who is responsible for meeting the notice requirement 

with respect to service providers?



    This section contains the same requirements as 29 CFR 34.23(a)(6). 

JTPA-related terminology (the references to SDA grant recipients and 

Substate grantees) has been replaced by WIA-related terminology (the 

references to the LWIA grant recipient). Also, the reference to another 

regulatory paragraph within part 34 has been changed to reflect the 

numbering of this Interim Final Rule. Neither of these changes is 

intended to alter the meaning of the section.



Section 37.34  What type of notice must a recipient include in 

publications, broadcasts, and other communications?



    This section contains the same requirements as 29 CFR 34.23(b). 

Differences between the section and the corresponding paragraph of the 

JTPA nondiscrimination regulations are described below.

    Paragraph 37.34(a): Consistent with plain-language guidelines, this 

paragraph has been organized slightly differently from 29 CFR 

34.23(b)(1), the corresponding paragraph in the JTPA nondiscrimination 

regulations. To reflect the growth in computer technology, and the 

related expansion of electronic communications, a reference to 

``materials that are ordinarily distributed or communicated in written 

and/or oral form, electronically and/or on paper,'' has been added. 

Also, because materials that ``describe programs funded under [Title I 

of WIA] or the requirements for participation by recipients and 

participants'' are frequently distributed to staff and clients, as well 

as to the public, a reference to those two groups has been added. In 

addition, the acronym ``TTY,'' which, as previously noted, is 

occasionally used as an alternative to the acronym ``TDD,'' has been 

added. Finally, references to JTPA have been replaced by references to 

WIA Title I, and the reference to another regulatory paragraph within 

part 34 has been changed to reflect the numbering of this Interim Final 

Rule.

    Paragraph 37.34(b): The reference to recipients ``required by law 

or regulation to'' publish or broadcast information in the news media 

has been deleted, in order to clarify that all recipients must include 

the required notice in written and electronic publications and 

broadcasts, regardless of whether those publications or broadcasts are 

required. Also, references to JTPA have been replaced by references to 

WIA Title I.

    Paragraph 37.34(c): The language contained in 29 CFR 34.23(c) that 

prohibited a recipient from ``us[ing] or distribut[ing] a publication 

of the type described in paragraph (b) of this section'' has been 

replaced by language prohibiting a recipient from ``communicating any 

information.'' As with other changes described above, this change was 

made to reflect the growth of electronic communication. Recipients now 

may reach staff, clients, or the general public through e-mail and 

Internet Web sites, as well as through the traditional publications on 

paper that were contemplated by the JTPA nondiscrimination regulations.

    Additionally, references to JTPA have been replaced by references 

to WIA Title I, and the reference to another regulatory paragraph 

within part 34 has been changed to reflect the numbering of this 

Interim Final Rule.



Section 37.35  What are a recipient's responsibilities to provide 

services and information in languages other than English?



    The requirements in this section are authorized by the provision in 

Section 188 of WIA that bars recipients from discriminating on the 

basis of national origin. Cf. Lau v. Nichols, 414 U.S. 563 (1974) 

(school system required to provide English language instruction to 

students of Chinese ancestry who do not speak English under Section 601 

of the Civil Rights Act of 1964, 42 U.S.C. 2000d, which bans 

discrimination based on national origin in programs or activities 

receiving Federal financial assistance).

    Paragraph (a) of this section contains the same requirements as 29 

CFR 34.23(c). Consistent with plain-language guidelines, this paragraph 

has been organized slightly differently from the corresponding 

paragraph in the JTPA nondiscrimination regulations, and has been 

presented in outline form to improve its readability. Also, references 

to JTPA have been replaced by references to WIA Title I, and the 

references to other regulatory paragraphs within part 34 have been 

changed to reflect the numbering of this Interim Final Rule.

    Paragraph (b) has been added in order to clarify the 

responsibilities of recipients to provide services and information to 

individuals with limited English-speaking skills where the number or 

proportion of such persons in the community served by the recipient 

does not reach the levels described in paragraph (a). In such 

circumstances, a recipient should make reasonable efforts to meet the 

particularized needs of any such individuals who seek services or 

information from that recipient.

    The differences between paragraphs (a) and (b) of this section may 

be explained as follows: Paragraph (a) requires a recipient to take 

certain actions before individuals with limited English skills seek 

assistance from the recipient. Under this paragraph, the recipient must 

assess the scope of its program or activity and the size and 

concentration of the population it serves, and establish and carry out 

a plan to provide services and information in the language (or 

languages) used by a significant number or proportion of members of 

that population. Depending upon the combination of these factors, that 

plan may include printing materials in the language used by the 

``significant number or proportion of the population,'' hiring 

permanent staff members who are qualified interpreters in that 

language, or various other options.

    Under paragraph (b), by contrast, a recipient is not required to 

take action in advance. However, when an individual with limited 

English skills--who does not speak a language spoken by a ``significant 

number or proportion of the population''--seeks services or information 

from the recipient, the recipient should then make reasonable efforts 

to meet the particularized needs of that individual. Such efforts may 

include, but are not limited to, locating and temporarily employing a 

qualified interpreter who can communicate in the appropriate language.

    As technology advances, various options for complying with the 

requirements of this section, such as computerized and/or on-line 

translation services, are becoming increasingly available to 

recipients, and the cost of these options is decreasing.



Section 37.36  What responsibilities does a recipient have to 

communicate information during orientations?



    This section contains the same requirements as 29 CFR 34.23(d).



[[ Page 61705]]



Consistent with plain-language guidelines, the section has been 

organized slightly differently from the corresponding paragraph in the 

JTPA nondiscrimination regulations. Also, references to JTPA have been 

replaced by references to WIA Title I. In addition, because recipients 

may provide orientations for the general public as well as for their 

new participants and/or employees, a reference to the general public 

has been added.



Data and Information Collection and Maintenance



Section 37.37  What are a recipient's responsibilities to collect and 

maintain data and other information?



    This section contains the same requirements as 29 CFR 34.24(a), 

(a)(1), and (a)(2), with additional, related material included from 29 

CFR 34.24(a)(3)(iii), (a)(7), and (e). Differences between this section 

and the corresponding paragraphs of the JTPA nondiscrimination 

regulations are described below.

    Paragraph 37.37(a): This paragraph is identical to 29 CFR 34.24(a), 

except that references to JTPA have been replaced by references to WIA. 

This change is not intended to alter the meaning of the paragraph.

    Paragraph 37.37(b)(1): The first sentence of this paragraph 

contains the same requirements as 29 CFR 34.24(a)(1); references to 

JTPA have been replaced by references to WIA. The second sentence has 

been added to explain that the manner in which the records and data are 

kept must allow the Governor and CRC to monitor the recipient's 

compliance by conducting statistical and other quantifiable data 

analyses. This provision is not a new requirement; it merely clarifies 

and codifies CRC's current practices. Compare 29 CFR 34.24(a)(1).

    Paragraph 37.37(b)(2): Generally, this paragraph contains the same 

requirements as 29 CFR 34.24(a)(2). Consistent with plain-language 

guidelines, the paragraph has been slightly rewritten to improve its 

clarity. Also, references to JTPA have been replaced by references to 

WIA, and WIA-related terminology (the references to ``registrants'' and 

to ``eligible applicants/registrants'') has been added where 

appropriate. None of these changes is intended to alter the meaning of 

the paragraph.

    In addition, the last line of the paragraph has been amended to 

permit the data and information collected under paragraph (b) of this 

section to be used for such ``other use authorized by law.'' This 

change has been made to clarify that this Interim Final Rule does not 

prohibit recipients from cooperating with Federal, State, and local 

agencies that, for law enforcement purposes, seek access to the data 

and information collected.

    This section does not require recipients to obtain, or to maintain 

records regarding, the citizenship status of applicants or 

participants.

    Paragraph 37.37(c): This paragraph contains the same general 

requirements as 29 CFR 34.24(a)(3)(iii). In response to questions that 

have arisen about whether recipients must provide the required log of 

complaints to CRC when requested to do so, the first sentence has been 

amended to clarify that recipients must ``submit [the log] to CRC upon 

request.'' Because 29 CFR 34.24(a)(4) already required that grant 

applicants and recipients provide, ``[a]t the discretion of the 

Director, . . . such information and data'' that the Director 

considered necessary to determine whether the entity was complying with 

the nondiscrimination and equal opportunity requirements, this addition 

was made solely to clarify the regulations. Also, the paragraph has 

been slightly rewritten to clarify that a complaint may be based upon 

more than one prohibited ground, that every prohibited ground upon 

which a particular complaint is based must be recorded in the log, and 

that information in the log that could lead to the identification of a 

particular individual as having filed a complaint must be kept 

confidential.

    29 CFR 34.24(a)(3)(iii) contained two identical lists of prohibited 

grounds upon which complaints recorded in the required log might have 

been filed. For conciseness, the second list of prohibited grounds has 

been eliminated. Finally, references to JTPA have been replaced by 

references to WIA Title I. Neither of these two changes is intended to 

alter the meaning of the paragraph.

    Section 37.37(d): This paragraph is identical to 29 CFR 34.24(e). 

The current guidelines may be found in 62 FR No. 210, Thursday, October 

30, 1997, at 58782, 58790. They may also be found at 28 CFR 42.402(e). 

In following these guidelines, recipients should use the combined 

format for collection and reporting of data.

    Section 37.37(e): This paragraph is identical to 29 CFR 

34.24(a)(7), except that JTPA-related terminology (the reference to SDA 

grant recipients and Substate grantees) has been replaced by WIA-

related terminology (the reference to the LWIA grant recipient). This 

change is not intended to alter the meaning of the paragraph.



Section 37.38  What information must grant applicants and recipients 

provide to CRC?



    This section consolidates 29 CFR 34.24(a)(3)(i) and (ii), (a)(4), 

(a)(5), (a)(6), and (e). Requirements regarding information that grant 

applicants and recipients must provide to CRC have been grouped 

together. Differences, if any, between the section and the 

corresponding paragraphs of the JTPA nondiscrimination regulations are 

described below.

    Paragraph 37.38(a): This paragraph contains the same general 

requirements as 29 CFR 34.24(a)(3)(i). References to JTPA in the 

paragraph have been replaced by references to WIA Title I. In addition, 

the language requiring grant applicants and recipients to promptly 

notify the Director ``of any administrative enforcement actions or 

lawsuits filed against it'' has been changed to require such 

notification ``when any'' such actions or lawsuits ``are filed.'' This 

change was made because of CRC's judgment that grant applicants and 

recipients needed guidance about the precise meaning of the requirement 

that the notification be made ``promptly.'' The new language emphasizes 

that the grant applicant or recipient must notify the Director at the 

time that enforcement actions or lawsuits are filed; it also makes the 

paragraph more readable.

    Also, language that specifies the information that the notification 

must contain has been added to this paragraph. The added language is 

based upon part of 29 CFR 34.24(a)(3)(ii); the requirements are the 

same as those in Section 37.38(b)(2)(i)-(iii).

    Paragraph 37.38(b): This paragraph requires grant applicants, as 

part of their applications for assistance, and recipients, as part of a 

compliance review or monitoring activity conducted by the Director, to 

provide the Director with information about any of the following 

occurrences from the two years before the application, compliance 

review, or monitoring activity:

    (1) The names of any other Federal agencies that found the grant 

applicant or recipient to be in noncompliance with civil rights 

requirements; and

    (2) Information about any administrative enforcement actions or 

lawsuits that:

    (a) were filed during those two years; and

    (b) alleged discrimination on any protected ground.

    This paragraph contains the same requirements as 29 CFR 

34.24(a)(3)(ii). Consistent with plain-language guidelines, this 

paragraph has been



[[ Page 61706]]



organized slightly differently from the corresponding paragraph in the 

JTPA nondiscrimination regulations, and has been presented in outline 

form to improve its readability. Also, references to other regulatory 

sections within part 34 have been changed to reflect the numbering of 

this Interim Final Rule. None of these changes is intended to alter the 

meaning of the paragraph.

    Paragraph 37.38(c): This paragraph is based upon 29 CFR 

34.24(a)(4). It requires grant applicants and recipients to provide CRC 

with the data and information necessary to investigate complaints and 

conduct compliance reviews. References to JTPA have been replaced by 

references to WIA; and the phrase ``in a timely manner'' has been 

inserted. This phrase was added in order to emphasize the need for 

grant applicants and recipients to respond promptly to the Director's 

requests for information. Because the corresponding paragraph in part 

34 already required grant applicants and recipients to provide 

information ``at the discretion of the Director,'' and the scope of 

Director's discretion includes the discretion to determine when 

information must be submitted, the latter change is intended merely to 

clarify the meaning of the paragraph.

    The corresponding paragraph in the JTPA nondiscrimination 

regulations specified that the requirement applied to complaints and 

compliance reviews ``on grounds prohibited under the nondiscrimination 

and equal opportunity provisions of JTPA and this part, other than 

race/ethnicity, sex, age, and disability.'' Because 29 CFR 34.24(a)(2) 

and (3) already required grant applicants and recipients to record and 

submit the race/ethnicity, sex, age, and disability of certain 

categories of persons, the paragraph was written this way to emphasize 

that grant applicants and recipients were required to provide CRC with 

records and data about additional prohibited grounds. However, grant 

applicants and recipients found the paragraph confusing. The paragraph 

therefore has been rewritten to clarify that they may be requested to 

submit data and information necessary to investigate complaints and/or 

conduct compliance reviews on any ground prohibited by the 

nondiscrimination and equal opportunity provisions of WIA and this 

part.

    Paragraph 37.38(d)-(e): These paragraphs require grant applicants 

and recipients to submit certain specified information at the 

discretion of the Director. These paragraphs are identical to 29 CFR 

34.24(a)(5)-(6), with the following exceptions:

    (1) References to JTPA have been replaced by references to WIA; and

    (2) In each paragraph, the phrase ``in a timely manner'' has been 

inserted. This phrase was added in order to emphasize the need for 

grant applicants and recipients to respond promptly to the Director's 

requests for information. As with Paragraph 37.38(c), because each 

corresponding paragraph in part 34 already required grant applicants 

and recipients to provide information ``at the discretion of the 

Director,'' and the scope of Director's discretion includes the 

discretion to determine when information must be submitted, these 

changes clarify the meaning of these paragraphs.

    Paragraph 37.38(f): This paragraph provides that where designation 

of persons by race or ethnicity is required, the guidelines of the 

Office of Management and Budget must be used. The paragraph is 

identical to 29 CFR 34.24(e), and appears in Section 37.37 as well. It 

was repeated in this section to clarify that its provisions apply to 

information provided to and collected by CRC, as well as to data and 

information collected by grant applicants and recipients. The current 

guidelines may be found in 62 FR. No. 210, Thursday, October 30, 1997, 

at 58782, 58790. They may also be found at 28 CFR 42.402(e). In 

following these guidelines, recipients should use the combined format 

for collection and reporting of data.

    Because this paragraph was applicable to 29 CFR 34.24(a)(4)-(6), 

its inclusion in this section does not impose additional 

responsibilities upon grant applicants or recipients.



Section 37.39  How long must grant applicants and recipients maintain 

the records required under this part?



    This section contains the same requirements as 29 CFR 34.24(c), 

``Record retention requirements.'' Consistent with plain-language 

guidelines, this section has been organized slightly differently from 

the corresponding paragraph in the JTPA nondiscrimination regulations, 

and has been presented in outline form to improve its readability. This 

change is not intended to alter the meaning of the section.



Section 37.40  What access to sources of information must grant 

applicants and recipients provide the Director?



    This section generally contains the same requirements as 29 CFR 

34.24(b), ``Access to sources of information.'' References to JTPA have 

been replaced by references to WIA. In addition, the sentence 

``Information obtained pursuant to the requirements of this part must 

be used only in connection with compliance and enforcement activities 

pertinent to the nondiscrimination and equal opportunity provisions of 

WIA and this part'' has been deleted from paragraph (b). As with the 

change discussed in Section 37.37(b)(2) earlier in this preamble, this 

change was made to clarify that this Interim Final Rule does not 

prohibit recipients from cooperating with Federal, State, and local 

agencies that, for law enforcement purposes, seek access to the data 

and information collected.

    Paragraph (c) contains the same requirements as the last sentence 

of 29 CFR 34.24(b)(2). Consistent with plain-language guidelines, it 

has been rewritten to clarify those requirements.



Section 37.41  What responsibilities do grant applicants, recipients, 

and the Department have to maintain the confidentiality of the 

information collected?



    This section is identical to 29 CFR 34.24(d), ``Confidentiality,'' 

with the following exceptions:

    (a) language has been inserted to clarify that the identity of 

individuals who file discrimination complaints must be kept 

confidential; and

    (b) the reference to 29 CFR 34.8 has been changed to reflect the 

numbering of this Interim Final Rule.

    Neither of these changes is intended to alter the meaning of this 

section.



Section 37.42  What are a recipient's responsibilities under this part 

to provide universal access to WIA Title I-financially assisted 

programs and activities?



    This section notifies recipients of their obligation to ensure 

universal access for all eligible populations to the aid, benefits, 

services, and/or training that the recipient offers under its WIA Title 

I--financially assisted programs and activities. Recipients should take 

specific actions to reach out to all eligible populations. The rule 

provides a nonexclusive list of possible actions, such as targeted 

advertising, notification of schools or community interest groups, and 

consultation with community service groups, that might be used to 

enhance community awareness of a recipient's programs and activities.



Subpart C--Governor's Responsibilities to Implement the 

Nondiscrimination and Equal Opportunity Requirements of WIA



    The individual sections in this subpart are largely identical to 

their corresponding sections within the same



[[ Page 61707]]



subpart in part 34. Consistent with plain-language guidelines, they 

have been rearranged in a more logical order, and one lengthy section 

has been divided into shorter sections treating narrower topics. These 

changes are not intended to alter the overall meaning of this subpart, 

or the meaning of any of its component sections.



Section 37.50  To whom does this subpart apply?



    This section is identical to 29 CFR 34.30, ``Application,'' except 

that the references to sections in part 34 have been changed to reflect 

the numbering of this Interim Final Rule. This change is not intended 

to alter the meaning of this section.



Section 37.51  What are a Governor's oversight responsibilities?



    This section contains the same requirements as 29 CFR 34.32(a). 

References to JTPA have been replaced by references to WIA Title I, and 

the references to sections in part 34 have been changed to reflect the 

numbering of this Interim Final Rule. Neither of these changes is 

intended to alter the meaning of this section. In addition, language 

has been added to clarify that the Governor must negotiate with a 

noncomplying recipient ``where appropriate.''



Section 37.52  To what extent may a Governor be liable for the actions 

of a recipient s/he has financially assisted under WIA Title I?



    This section is identical to 29 CFR 34.32(b) and (c), with the 

following exceptions:

    (1) References to JTPA have been replaced by references to WIA;

    (2) The references to sections in part 34 have been changed to 

reflect the numbering of this Interim Final Rule; and

    (3) To comply with the rules of grammar, the word ``which'' in 

paragraph (a)(2) has been changed to ``that.''

    None of these changes is intended to alter the meaning of this 

section.



Section 37.53  What are a Governor's oversight responsibilities 

regarding recipients' recordkeeping?



    This section is identical to 29 CFR 34.31, except that the 

references to sections in part 34 have been changed to reflect the 

numbering of this Interim Final Rule. These changes are not intended to 

alter the meaning of this section.



Section 37.54  What are a Governor's obligations to develop and 

maintain a Methods of Administration?



    A ``Methods of Administration'' (MOA) is a document that describes 

the actions an individual State will take to ensure that its WIA Title 

I-financially assisted programs, activities, and recipients are 

complying, and will comply, with all requirements imposed by or under 

this part.

    This section contains the same general requirements as 29 CFR 

34.33(a)-(c). References to JTPA have been replaced by references to 

WIA, and the references to sections in part 34 have been changed to 

reflect the numbering of this Interim Final Rule. Also, the list of 

sections referred to in paragraph 37.54(c)(1) has been expanded to 

include a description of each section. In addition, consistent with 

plain-language guidelines, the information in Paragraphs 37.54(c)(1) 

and (c)(2)(vii) has been presented in outline form to improve its 

readability. None of these changes is intended to alter the meaning of 

these paragraphs.

    The reasons for additional changes in the section are described 

below.

    (1) 29 CFR 34.33(b)(2) required that the MOA be ``[u]pdated 

periodically as required by the Director.'' The parallel provision in 

Section 37.54, paragraph (b)(2), requires that the MOA be ``[r]eviewed 

and updated as required in Section 37.55.'' The reasons for this change 

are described below, in the discussion in this preamble about Section 

37.55.

    (2) Paragraph 37.54(c) has been reserved to give the Department the 

opportunity to later amend the regulation to insert a reference to 

guidance that the Director intends to issue regarding the requirements 

for MOAs.

    (2) Paragraph (d)(2)(i) has been added to clarify that the MOA must 

include a system that will permit the Governor to carry out his/her 

responsibility of determining whether a grant applicant seeking WIA 

Title I financial assistance from the State, if funded, or a training 

provider, if selected and/or certified as eligible, is likely to comply 

with its nondiscrimination and equal opportunity obligations under WIA 

and this part. See Section 37.51.

    (3) Paragraph (d)(2)(ii) and its subparagraphs are based on 29 CFR 

34.33(c)(2)(i). Language has been added to clarify that the Governor 

must monitor the compliance of the State's recipients by conducting 

statistical and other quantifiable data analyses of each recipient's 

records and data, and to provide the minimum requirements for such 

monitoring reviews.

    (4) Paragraphs (d)(2)(iii) and (d)(2)(iv) are based on 29 CFR 

34.33(c)(2)(ii). They have been rewritten to reflect the requirements 

CRC actually imposes with regard to the types of documents listed in 

the two paragraphs.

    (5) 29 CFR 34.33(c)(2)(iii) required the MOA to include procedures 

for ensuring that recipients ``provide accessibility to individuals 

with disabilities.'' The corresponding paragraph, paragraph (d)(2)(v), 

has been changed to clarify and emphasize that the MOA must include 

procedures for ensuring that recipients comply with all of the 

requirements of Section 504 and this part with regard to individuals 

with disabilities, not just those requirements regarding accessibility.

    The Department is particularly interested in receiving comments 

regarding this section of the Interim Final Rule.



Section 37.55  When must the Governor carry out his or her obligations 

with regard to the Methods of Administration?



    Paragraph (a) of this section is similar to 29 CFR 34.33(d), except 

that it requires the Governor to develop, implement, and submit its 

first WIA MOA within 180 days of either the date on which this Interim 

Final Rule is effective, or the date on which the Department gives 

final approval to the State's Five-Year Plan, whichever is later. If 

the MOA submitted by the State under JTPA satisfies the requirements 

listed in Section 37.54, the Governor is required only to submit any 

necessary updates and/or to certify that no changes are required, as 

described below.

    The remainder of this section is intended to improve the MOA's 

usefulness as a method for both States and CRC to monitor the 

compliance of States and their recipients; to initially evaluate 

discrimination complaints filed against those States and recipients; 

and to reduce the burden on States and recipients by eliminating 

unnecessary complaint investigations and/or compliance reviews.

    CRC regards the MOA as a baseline instrument for monitoring the 

compliance of States and their recipients. By reviewing a State's MOA, 

CRC is able to conduct an initial evaluation of the overall systems and 

procedures the State has put in place, without the necessity of an 

extensive compliance review. Similarly, if a complaint filed with CRC 

alleges that a State's or recipient's nondiscrimination and/or equal 

opportunity procedures are



[[ Page 61708]]



unlawful or unfair, the Director may simply compare the complaint with 

the MOA, to establish whether the procedures described in the complaint 

are the same ones described in the document submitted by the Governor. 

If CRC has already reviewed those procedures and determined them to be 

adequate, the agency may avoid a burdensome and unnecessary complaint 

investigation.

    In order for the MOA to provide an effective method of monitoring 

compliance, however, it is important that CRC have access to current 

information regarding a State's practices. The requirements in 

paragraphs (b) and (c) are intended to provide that current 

information.

    Paragraph (b) requires the Governor to ``promptly update'' the MOA 

``whenever necessary.'' This paragraph means that whenever, in the 

ordinary course of implementing the MOA, the Governor or the State 

decides that an amendment to the MOA is appropriate, the Governor must 

notify CRC of the amendment. The paragraph does not require the 

Governor or the State to provide CRC with an entirely new MOA under 

these circumstances. For example, if a State's MOA lists the members of 

a particular recipient's EO staff, the State is not required to redo 

its entire MOA when there is turnover on the staff. Rather, the 

Governor may notify CRC of the change simply by sending a letter 

listing the names of the departing and incoming staff members, and the 

contact information for the new staffers.

    Paragraph (c) requires that every two years, the Governor must 

review the MOA and the way in which the State has implemented the 

document, and to make any necessary changes. As in paragraph (b), the 

Governor is required to notify CRC about those changes alone; he or she 

must submit an entirely new MOA to CRC only if he or she decides to 

replace the previous MOA completely. If, based on the review, he or she 

determines that no changes are necessary, he or she is required merely 

to certify to CRC in writing that the previous MOA remains in effect. 

If this certification is not required, then each time that the Director 

receives a complaint regarding a particular State, CRC will be forced 

to contact that State to ask whether its MOA has been changed. In CRC's 

view, such repeated inquiries would be more burdensome for States than 

requiring certification every two years.

    The Department is particularly interested in receiving comments 

regarding this section of the Interim Final Rule.



Subpart D--Compliance Procedures



    Generally, this subpart contains the same requirements as the 

corresponding subpart in part 34. The few circumstances in which 

substantive changes have been made are discussed in the descriptions 

below of individual sections.

    Consistent with plain-language guidelines, the information in this 

subpart has been rearranged in a more logical order, and lengthy 

sections have been divided into shorter sections treating narrower 

topics. The subpart now begins with sections describing the Director's 

general authority, and continues with sections describing Compliance 

Reviews, Complaint Investigations, Determinations, and Breaches of 

Conciliation Agreements. The above changes are not intended to alter 

the overall meaning of this subpart, or the meaning of any of its 

component sections.



Section 37.60  How does the Director evaluate compliance with the 

nondiscrimination and equal opportunity provisions of WIA and this 

part?



    In general, this section contains the same requirements as 29 CFR 

34.40(a). Consistent with plain-language guidelines, the section has 

been slightly rewritten and reorganized. Also, references to JTPA have 

been replaced by references to WIA. Neither of these changes is 

intended to alter the meaning of this section.

    The sentence in 29 CFR 34.40(a) that discusses techniques used in 

compliance reviews has been moved to Section 37.63, to clarify that in 

CRC's actual practice, the techniques discussed are used only in post-

approval compliance reviews.

    A sentence has been added to clarify that pre- or post-approval 

compliance reviews may focus on one or more specific programs or 

activities, or one or more issues within a program or activity. The 

Director has the discretion to determine the scope of a particular 

compliance review. This addition is intended only to provide notice to 

grant applicants and recipients that compliance reviews may be narrow 

as well as broad. It does not alter the Director's authority in any 

way, but is intended only to clarify the meaning of this section.

    Because this section now serves as an introduction to Subpart D, a 

sentence has also been added that notes that the Director may also 

investigate and resolve discrimination complaints. Again, this sentence 

does not alter the Director's authority in any way, and is not intended 

to change the meaning of this section.



Section 37.61  Is there authority to issue subpoenas?



    This section contains the same requirements as 29 CFR 34.43(g)(4). 

Consistent with plain-language guidelines, the section has been 

organized slightly differently from the corresponding paragraph in the 

JTPA nondiscrimination regulations, and presented in outline form to 

improve its readability. Also, references to JTPA have been replaced by 

references to WIA.

    The section was moved to the beginning of this subpart in order to 

clarify that the authority to issue subpoenas extends to compliance 

reviews as well as complaint investigations. Again, this change does 

not alter the subpoena authority in any way, and is not intended to 

change the meaning of this section.



Compliance Reviews



Section 37.62  What are the authority and procedures for conducting 

pre-approval compliance reviews?



    This section contains the same requirements as 29 CFR 34.40(b), 

``Pre-approval reviews,'' with additional material from 29 CFR 34.47. 

Differences between this section and the corresponding paragraphs and 

section of the JTPA nondiscrimination regulations are described below.

    Paragraph 37.62(a): This paragraph describes the circumstances 

under which, and the bases upon which, the Director may conduct a pre-

approval compliance review. The paragraph is identical to 29 CFR 

34.40(b)(1), with the following exceptions:

    (1) References to JTPA have been replaced by references to WIA; and

    (2) The references to sections in part 34 have been changed to 

reflect the numbering of this Interim Final Rule.

    Neither of these changes is intended to alter the meaning of this 

paragraph.

    Paragraph 37.62(b): This paragraph outlines the Director's 

responsibilities when s/he determines that a grant applicant might not 

comply with the nondiscrimination and equal opportunity provisions of 

WIA and this part. Generally, this paragraph contains the same 

requirements as 29 CFR 34.40(b)(2) and (4); it also incorporates 

material from 29 CFR 34.47, which requires the Director to notify the 

Assistant Attorney General, as well as the grantmaking agency, where a 

complaint investigation or compliance review results in a finding of 

noncompliance. The latter requirement



[[ Page 61709]]



is also contained within the Department of Justice's Title VI 

coordination regulations at 28 CFR 42.407(d).

    Consistent with plain-language guidelines, this paragraph has been 

organized slightly differently from the corresponding paragraphs in the 

JTPA nondiscrimination regulations, and has been presented in outline 

form to improve its readability. Because the JTPA nondiscrimination 

regulations listed these same responsibilities, their inclusion in this 

paragraph does not alter the Director's authority in any way, and is 

not intended to change the meaning of this paragraph.

    In addition, references to JTPA have been replaced by references to 

WIA, and the references to sections in part 34 have been changed to 

reflect the numbering of this Interim Final Rule. Neither of these 

changes is intended to alter the meaning of this paragraph.

    Paragraph 37.62(c): This paragraph describes the Department's 

responsibilities where a grant applicant agrees to take remedial or 

corrective actions in order to receive WIA Title I financial 

assistance. The paragraph is identical to 29 CFR 34.40(b)(3), with the 

following exceptions:

    (1) References to JTPA have been replaced by references to WIA; and

    (2) The references to sections in part 34 have been changed to 

reflect the numbering of this Interim Final Rule.

    Neither of these changes is intended to alter the meaning of this 

paragraph.



Section 37.63  What are the authority and procedures for conducting 

post-approval compliance reviews?



    Generally, this section contains the same requirements as 29 CFR 

34.40(c), ``Post-approval reviews,'' with one paragraph from 34.40(a). 

Differences between this section and the corresponding paragraphs of 

the JTPA nondiscrimination regulations are described below.

    Paragraph 37.63(a): This paragraph outlines the circumstances under 

which, and the bases upon which, the Director may conduct a post-

approval compliance review. The paragraph contains the same 

requirements as 29 CFR 34.40(c)(1). Consistent with plain-language 

guidelines, the list of examples of possible bases for such reviews has 

been slightly rewritten to clarify the examples. In addition, 

references to JTPA have been replaced by references to WIA. These 

changes are not intended to alter the meaning of the paragraph.

    Paragraph 37.63(b): This paragraph outlines the procedures for 

initiating a post-approval compliance review. The paragraph contains 

the same information as 29 CFR 34.40(c)(2), and it incorporates related 

material from 29 CFR 34.40(c)(4).

    References to ``data'' that a recipient must submit before a post-

approval compliance review have been changed to ``information, records, 

and/or data.'' Like other changes described earlier in this Preamble, 

this change was made to reflect the growth in computer technology, and 

the related expansion of electronic communications; the change was 

intended to incorporate a variety of terms that might be used to refer 

to material stored in written, electronic, or other forms. Again, this 

change does not impose any additional obligations upon recipients; it 

was made merely to clarify the paragraph.

    In addition, the references to sections in part 34 have been 

changed to reflect the numbering of this Interim Final Rule. These 

changes are not intended to alter the meaning of the paragraph.

    Paragraph 37.63(c): This paragraph contains material from 29 CFR 

34.40(a) about techniques used in compliance reviews. As discussed in 

Section 37.60 of this preamble, the sentence was moved to this section 

to clarify that in CRC's actual practice, the techniques discussed are 

used only in post-approval compliance reviews. The reference to off-

site analyses has been deleted because it refers to internal agency 

procedure that is more appropriately treated in internal agency 

guidelines.



Section 37.64  What procedures must the Director follow when CRC has 

completed a post-approval compliance review?



    Generally, this section contains the same requirements as 29 CFR 

34.40(c)(3). However, the requirement that the Director inform the 

recipient of the results of the review within 210 days of the issuance 

of the Notification Letter has been deleted. This change was made 

because CRC has decided to establish such internal agency time frames 

in internal agency guidelines issued by the Director, rather than 

through rulemaking.

    In addition, consistent with plain-language guidelines, the section 

has been slightly rewritten to clarify it. Also, the references to 

sections in part 34 have been changed to reflect the numbering of this 

Interim Final Rule. These changes are not intended to alter the meaning 

of the paragraph.



Section 37.65  What is the Director's authority to monitor the 

activities of a Governor?



    This section is identical to 29 CFR 34.34(a) and (b), with the 

following exceptions:

    (1) References to JTPA have been replaced by references to WIA; and

    (2) The references to sections in part 34 have been changed to 

reflect the numbering of this Interim Final Rule.

    Neither of these changes is intended to alter the meaning of this 

section.

    The corresponding paragraphs in the JTPA nondiscrimination 

regulations were located in Subpart C (``Governor's 

Responsibilities''). The section was moved to Subpart D and included 

with procedures about compliance reviews because it deals with the 

Director's authority to review documents prepared by and actions taken 

by a Governor under this part. This change was not intended to alter 

the meaning of the section.

    Paragraph (c) of Section 34.34 provided that ``[t]he procedures 

contained in [S]ubpart D'' would apply to the Director's monitoring 

activities. Because the section has been moved to Subpart D, this 

paragraph has become redundant, and has been deleted.



Section 37.66  What happens if a recipient fails to submit requested 

data, records, and/or information, or fails to provide CRC with the 

required access?



    This section contains the same general requirements as 29 CFR 

34.41(a). The reference to the ``Directorate'' (the Directorate of 

Civil Rights, the previous title of the Civil Rights Center) has been 

updated to ``CRC.'' Also, to help readers find the section of the 

Interim Final Rule that requires a recipient to provide CRC with access 

to sources of information, a reference to that section has been added. 

Neither of these changes is intended to alter the meaning of this 

section.

    In addition, language has been added that specifies that recipients 

must submit or provide CRC with access to data, records, and/or 

information ``in a timely manner.'' This addition was made to clarify 

that the Director may issue a Notice to Show Cause based upon a 

recipient's delay in supplying the records, data, information, and/or 

access sought by CRC.



Section 37.67  What information must a Notice to Show Cause contain?



    This section is identical to 29 CFR 34.41(b), and includes the 

first sentence of 34.41(c). References to JTPA have been replaced by 

references to WIA. These changes are not intended to change the meaning 

of this section.



[[ Page 61710]]



Section 37.68  How may a recipient show cause why enforcement 

proceedings should not be instituted?



    This section is identical to the remainder of 29 CFR 34.41(c), with 

the following exceptions:

    (1) The references to sections in part 34 have been changed to 

reflect the numbering of this Interim Final Rule; and

    (2) References to the ``Directorate'' have been updated to ``CRC.''

    Neither of these changes is intended to alter the meaning of this 

section.



Section 37.69  What happens if a recipient fails to show cause?



    This section is identical to 29 CFR 34.41(d), except that the 

reference to a section in part 34 has been changed to reflect the 

numbering of this Interim Final Rule. This change is not intended to 

alter the meaning of this section.



Complaint Processing Procedures



Section 37.70  Who may file a complaint concerning discrimination 

connected with WIA Title I?



    This section contains the same requirements as 29 CFR 34.43(a). 

Consistent with plain-language guidelines, the section has been 

slightly rewritten to improve its readability. This change is not 

intended to alter the meaning of this section.



Section 37.71  Where may a complaint be filed?



    This section contains the same requirements as 29 CFR 34.43(b). 

Consistent with plain-language guidelines, the section has been 

slightly rewritten to improve its clarity. This change is not intended 

to alter the meaning of this section.



Section 37.72  When must a complaint be filed?



    This section contains the same requirements as 29 CFR 34.43(c). 

Consistent with plain-language guidelines, the section has been 

slightly rewritten to improve its clarity. This change is not intended 

to alter the meaning of this section.



Section 37.73  What information must a complaint contain?



    This section contains the same requirements as 29 CFR 34.43(d), 

except that, for the ease of the reader, the information in the second 

sentence of Section 34.43(d)(4)(iii) has been placed in the next 

section. Consistent with plain-language guidelines, the section has 

been slightly rewritten to improve its clarity. This change is not 

intended to alter the meaning of this section.



Section 37.74  Are there any forms that a complainant may use to file a 

complaint?



    This section contains the same requirements as the second sentence 

of Section 34.43(d)(4)(iii). Consistent with plain-language guidelines, 

the section has been slightly rewritten to improve its clarity. In 

addition, for the convenience of the reader, the section now explains 

where complainants or their representatives may obtain the forms.



Section 37.75  Is there a right of representation in the complaint 

process?



    This section contains the same requirements as 29 CFR 34.43(e). 

Consistent with plain-language guidelines, the section has been 

slightly rewritten to improve its clarity. This change is not intended 

to alter the meaning of this section.



Section 37.76  What are the required elements of a recipient's 

discrimination complaint processing procedures?



    Much of this section is new. It includes most of the general 

information contained in 29 CFR 34.42(a), which requires a recipient to 

adopt and publish procedures for processing discrimination complaints, 

and 34.42(c), which requires the recipient to provide the complainant 

with written notice of the resolution of the complaint. (As discussed 

earlier in this preamble, the material in 29 CFR 34.42(b), which 

charges a recipient's Equal Opportunity Officer with the responsibility 

for adopting and publishing these procedures, has been moved to Section 

37.25(d), ``What are the responsibilities of an Equal Opportunity 

Officer?'' In addition, the information in the third sentence of 

Section 34.42(a) has been moved to the next section.) However, this 

section includes the following changes.

    (1) The period for recipients to process discrimination complaints 

has been extended, from 60 to 90 days. See Paragraphs 37.76(a) and 

37.76(b)(5). This change has been made in response to concerns raised 

by recipients that 60 days was not enough time in which to give a 

complaint appropriate attention.

    (2) A list of specific elements that must be included in each 

recipient's complaint processing procedures has been added. See 

Paragraphs 37.76(b) and (c). This change has been made because a number 

of recipients have requested more extensive guidance about the steps 

that must be taken in order to process a complaint fairly and 

effectively. As this section notes, the list is intended only as a 

baseline; recipients may include additional elements in their complaint 

processing procedures, as long as the procedures allow for resolution 

of the complaint within 90 days.

    (3) The section requires recipients to adopt procedures for 

alternative dispute resolution (ADR). See Paragraph 37.76(c). This 

requirement was added in response to input from complainants and 

recipients who wanted a more flexible, less adversarial means of 

resolving discrimination complaints. (CRC itself is adopting procedures 

that will allow complainants and respondents to mediate complaints 

filed with the Director. See the discussion of Section 37.89, later in 

this preamble.) The section also includes procedures through which any 

party to an agreement reached under ADR may complain to the Director if 

the agreement is breached. See Paragraph 37.76(c)(2). CRC believes that 

complainants and recipients will be more willing to resolve complaints 

through ADR if the parties know that they have a means of enforcing the 

agreements reached through that procedure. However, in the event that 

the ADR process does not resolve a complaint, the section provides that 

a complainant may file a complaint with the Director within 30 days of 

the date on which the ADR process terminates. CRC is particularly 

interested in receiving comments about this new requirement.

    (4) The section has given a formal name, ``Notice of Final 

Action,'' to the written notification that a recipient must give a 

complainant when the recipient has finished processing a complaint. 

Because 29 CFR 34.42(c) already required such a written notification, 

this change is not a substantive change in the section.



Section 37.77  Who is responsible for developing and publishing 

complaint processing procedures for service providers?



    Generally, this section contains the same requirements as the third 

sentence of 29 CFR 34.42(a). Consistent with plain-language guidelines, 

the section has been slightly rewritten to improve its clarity. Also, 

JTPA-related terminology (the references to SDA grant recipients and 

Substate grantees) has been replaced by WIA-related terminology (the 

reference to the LWIA grant recipient). Neither of these changes is 

intended to alter the meaning of this section.

    The final sentence has been added to the section to clarify that 

service providers are obliged to follow the



[[ Page 61711]]



procedures adopted and published on their behalf.



Section 37.78  Does a recipient have any special obligations in cases 

in which the recipient determines that it has no jurisdiction over a 

complaint?



    This section contains the same requirements as 29 CFR 34.43(f)(5). 

Consistent with plain-language guidelines, the section has been 

slightly rewritten and presented in outline form to improve its 

readability. Also, references to JTPA have been replaced by references 

to WIA. Neither of these changes is intended to alter the meaning of 

this section.



Section 37.79  If, before the 90-day period has expired, a recipient 

issues a Notice of Final Action with which the complainant is 

dissatisfied, how long does the complainant have to file a complaint 

with the Director?



    This section contains the same general information as 29 CFR 

34.43(f)(1). Consistent with plain-language guidelines, the section has 

been slightly rewritten to improve its clarity. Also, references to the 

60-day period allowed for processing complaints under the JTPA 

nondiscrimination regulations have been replaced by references to the 

newly-extended 90-day period allowed under WIA, and the new term 

``Notice of Final Action'' has been used to refer to the written 

notification that a recipient must provide a complainant when the 

recipient has completed its processing of a complaint.



Section 37.80  What happens if a recipient fails to issue a Notice of 

Final Action within 90 days of the date on which a complaint was filed?



    This section contains the same general information as 29 CFR 

34.43(f)(3). Consistent with plain-language guidelines, the section has 

been slightly rewritten to improve its clarity. Also, references to the 

60-day period allowed for processing complaints under the JTPA 

nondiscrimination regulations have been replaced by references to the 

newly-extended 90-day period allowed under WIA, and the new term 

``Notice of Final Action'' has been used to refer to the written 

notification that a recipient must provide a complainant when the 

recipient has completed its processing of a complaint.

    This section deals only with a complainant's rights if a recipient 

fails to issue a Notice of Final Action within the required period. 

Recipients should be aware that in such circumstances, the Director has 

the right to take appropriate action against the recipient.



Section 37.81  Are there any circumstances under which the Director may 

extend the time limit for filing a complaint with him or her?



    This section contains the same requirements as 29 CFR 34.43(f)(4). 

Consistent with plain-language guidelines, the section has been 

slightly rewritten and presented in outline form to improve its 

readability. Also, the reference to a section in part 34 has been 

changed to reflect the numbering of this Interim Final Rule, and a 

final sentence has been added to clarify and emphasize that the burden 

of showing good cause for extending the time limit rests with the 

complainant.



Section 37.82  Does the Director accept every complaint for resolution?



    This section consolidates information contained in 29 CFR 

34.43(g)(1), (g)(5), and (g)(6). Consistent with plain-language 

guidelines, the material has been slightly rewritten and presented in 

outline form to improve its readability. Also, the information in 

Paragraph 37.82(c), explaining that CRC need not investigate a 

complaint about a matter that it has already decided, has been added. A 

``complaint about a matter that it has already decided'' is a complaint 

about the same set of facts that CRC has already considered and decided 

in a previous case. This addition does not change CRC's authority in 

any way; it is intended only to notify complainants and respondents 

about CRC's practices. None of these changes is intended to alter the 

meaning of this section.



Section 37.83  What happens if a complaint does not contain enough 

information?



    Generally, this section contains the same requirements as 29 CFR 

34.43(g)(3). Consistent with plain-language guidelines, the material 

has been slightly rewritten and presented in outline form to improve 

its readability. Also, the provision requiring that a complainant must 

submit the requested additional information within 15 days has been 

eliminated. This change has been made in order to provide the Director 

with the flexibility to require a longer or shorter response period, if 

appropriate in a particular case.



Section 37.84  What happens if CRC does not have jurisdiction over a 

complaint?



    This section contains the same general information as 29 CFR 

34.43(g)(5). Consistent with plain-language guidelines, the section has 

been slightly rewritten to improve its clarity. Also, the reference to 

the ``Directorate'' has been updated to ``CRC.'' Neither of these 

changes is intended to alter the meaning of this section.



Section 37.85  Are there any other circumstances in which the Director 

will send a complaint to another authority?



    Generally, this section contains the same requirements as 29 CFR 

34.43(g)(7) and (8), with additional material necessitated by the 

requirements of the WIA program. Differences between this section and 

the corresponding paragraphs of the JTPA nondiscrimination regulations 

are set forth below.

    Paragraph 37.85(a): This paragraph generally contains the same 

requirements as 29 CFR 34.43(g)(7), except that the requirement that 

the Director advise the complainant and the respondent about the 

referral has been moved to paragraph (d). In addition, consistent with 

plain-language guidelines, the material has been slightly rewritten. 

Neither of these changes is intended to alter the meaning of this 

paragraph.

    Paragraph 37.85(b): This paragraph generally contains the same 

requirements as 29 CFR 34.43(g)(8), except that the requirement that 

the Director advise the complainant and the respondent about the 

referral has been moved to paragraph (d). In addition, consistent with 

plain-language guidelines, the material has been slightly rewritten and 

presented in outline form to improve its readability. Also, the 

reference to JTPA has been replaced by a reference to WIA. None of 

these changes is intended to alter the meaning of this paragraph.

    Paragraph 37.85(c): The material in this paragraph is new. Under 

the One-Stop system established by WIA, CRC may have dual jurisdiction, 

with Federal grantmaking agencies other than the Department of Labor, 

over complaints that allege discrimination by One-Stop partners 

financially assisted by those other grantmaking agencies. This 

paragraph sets forth the general procedures that will be used to 

determine whether CRC will retain such complaints for processing or 

refer them to the other grantmaking agencies for appropriate action in 

accordance with the Federal grantmaking agency's applicable 

regulations. CRC will enter into Memoranda of Understanding (MOUs) with 

the appropriate Federal grantmaking agencies to ensure that complaints 

will be referred in accordance with these guidelines. These MOUs, which 

will contain more specific



[[ Page 61712]]



referral procedures, will be published in the Federal Register. In 

addition, the Department encourages local Workforce Investment Boards, 

in developing the MOUs required by Section 121(c) of WIA, to include in 

those MOUs provisions regarding the appropriate referral of any such 

complaints filed at the local level.

    Paragraph 37.85(d): The material in this paragraph comes from both 

29 CFR 34.43(g)(7) and (8), as noted above. It has been placed in a 

separate paragraph to improve the readability of this section.



Section 37.86  What must the Director do if he or she determines that a 

complaint will not be accepted?



    Generally, this section contains the same requirements as 29 CFR 

34.43(g)(6). Consistent with plain-language guidelines, the material 

has been slightly rewritten to improve its clarity. In addition, the 

wording referring to circumstances in which a complaint ``will not be 

investigated'' has been changed to ``will not be accepted.'' This 

change has been made to reflect the addition of the mediation option to 

CRC's complaint processing procedures: where a complainant and 

respondent agree to mediate the complaint, CRC will conduct an 

investigation only if the mediation fails, or if one of the parties 

breaches the agreement reached through the mediation. See Section 

37.89.



Section 37.87  What must the Director do if he or she determines that a 

complaint will be accepted?



    Generally, this section contains the same requirements as 29 CFR 

34.43(g)(1)(i) and (ii). Consistent with plain-language guidelines, the 

material has been slightly rewritten to improve its clarity. In 

addition, the following changes have been made:

    (1) The reference to the ``Directorate'' has been changed to the 

``Director,'' because it is he or she who has the authority to 

determine whether a complaint will be accepted.

    (2) The Director is now required to notify the grantmaking agency, 

as well as the complainant and the respondent, when a complaint is 

accepted. This requirement has been added because CRC's experience has 

shown that when grantmaking agencies are aware of discrimination 

complaints, those complaints are more likely to be resolved 

successfully, and recipients are more likely to comply with their 

obligations regarding nondiscrimination and equal opportunity.

    (3) The Director is also required to provide notice about any 

issues over which he or she has not accepted jurisdiction, and the 

reasons why those issues have been rejected. This requirement has been 

added in order to provide complainants and respondents with reasonable 

notice of the Director's determinations about the entire complaint.



Section 37.88  Who may contact CRC for information about a complaint?



    Generally, this section contains the same requirements as 29 CFR 

34.43(g)(2). Consistent with plain-language guidelines, the material 

has been slightly rewritten to improve its clarity. Also, a second 

sentence has been added in order to clarify that the Director has the 

authority to determine what information about a complaint should be 

released.



Section 37.89  May the Director offer the parties to a complaint the 

option of mediation?



    This section is new. Like the provisions allowing recipients to 

include provisions for ADR in their complaint processing procedures, 

this option was added in response to concerns of complainants and 

recipients who wanted a more flexible, less adversarial means of 

resolving discrimination complaints. CRC is particularly interested in 

receiving comments concerning this section.



Determinations



Section 37.90  If a complaint is investigated, what must the Director 

do when the investigation is completed?



    This section contains information from 29 CFR 34.43(g)(9), (9)(i), 

and (9)(ii). Consistent with plain-language guidelines, the material 

has been rewritten and reorganized slightly, and presented in outline 

form to improve its readability. Also, the Director is now required to 

notify the grantmaking agency about his or her determination whether 

the respondent has violated the nondiscrimination and equal opportunity 

provisions. This requirement was added for the reasons listed in the 

discussion of Section 37.87.



Section 37.91  What notice must the Director issue if he or she finds 

reasonable cause to believe that a violation has taken place?



    This section contains information from 29 CFR 34.43(g)(9)(i). 

Consistent with plain-language guidelines, the material has been 

rewritten and reorganized slightly to improve its clarity. Also, 

references to sections in part 34 have been changed to reflect the 

numbering of this Interim Final Rule. None of these changes is intended 

to alter the meaning of this section.



Section 37.92  What notice must the Director issue if he or she finds 

no reasonable cause to believe that a violation has taken place?



    This section contains information from 29 CFR 34.43(g)(9)(ii). 

Consistent with plain-language guidelines, the material has been 

slightly rewritten to improve its clarity. These changes are not 

intended to alter the meaning of the section.



Section 37.93  What happens if the Director finds that a violation has 

taken place, and the recipient fails or refuses to take the corrective 

action listed in the Initial Determination?



    This section contains information from 29 CFR 34.46(a)(1). 

Consistent with plain-language guidelines, the material has been 

slightly rewritten to improve its clarity. These changes are not 

intended to alter the meaning of the section.



Section 37.94  What corrective or remedial actions may be imposed 

where, after a compliance review or complaint investigation, the 

Director finds a violation of the nondiscrimination and equal 

opportunity provisions of WIA or this part?



    This section contains the same requirements as 29 CFR 34.44. The 

material has been slightly rewritten to improve its clarity. Also, the 

references to other regulatory sections within part 34 have been 

changed to reflect the numbering of this Interim Final Rule, and 

references to JTPA have been changed to refer to WIA. None of these 

changes is intended to alter the meaning of the section.



Section 37.95  What procedures apply if the Director finds that a 

recipient has violated the nondiscrimination and equal opportunity 

provisions of WIA or this part?



    This section contains the same requirements as 29 CFR 34.45 (a) and 

(b). Consistent with plain-language guidelines, the material has been 

rewritten and reorganized slightly to improve its clarity. Some of the 

material has been presented in outline form. Also, the references to 

other regulatory sections within part 34 have been changed to reflect 

the numbering of this Interim Final Rule, and references to JTPA have 

been changed to refer to WIA. None of these changes is intended to 

alter the meaning of the section.

    The section makes reference to a written Conciliation Agreement. 

CRC, not the recipient or the Governor, prepares the initial draft of 

this



[[ Page 61713]]



document. See also the discussion in this preamble about Section 37.97.



Section 37.96  What are the required elements of a written assurance?



    This section contains the same requirements as 29 CFR 34.45(c)(1). 

Consistent with plain-language guidelines, the material has been 

slightly rewritten to improve its clarity. These changes are not 

intended to alter the meaning of the section.



Section 37.97  What are the required elements of a Conciliation 

Agreement?



    Generally, this section contains the same requirements as 29 CFR 

34.45(c)(2). Consistent with plain-language guidelines, the material 

has been slightly rewritten to improve its clarity. These changes are 

not intended to alter the meaning of the section.

    As noted above in the discussion of Section 37.95, CRC, not the 

recipient or the Governor, prepares the initial draft of the 

Conciliation Agreement.



Section 37.98  When will the Director conclude that compliance cannot 

be secured by voluntary means?



    This section contains the same requirements as 29 CFR 34.46(a). 

Consistent with plain-language guidelines, the material has been 

slightly rewritten to improve its clarity. Also, the references to 

other regulatory sections within part 34 have been changed to reflect 

the numbering of this Interim Final Rule. These changes are not 

intended to alter the meaning of the section.



Section 37.99  If the Director concludes that compliance cannot be 

secured by voluntary means, what actions must he or she take?



    This section includes information from 29 CFR 34.46(b) (1), (2), 

and (3). The subparagraphs from Paragraph 34.46(b)(1) that describe the 

required elements of a Final Determination have been moved to the next 

section. Also, the material in this section has been slightly rewritten 

to improve its clarity. Neither of these changes is intended to alter 

the meaning of this section.



Section 37.100  What information must a Final Determination contain?



    This section contains the same requirements as 29 CFR 34.46(a) and 

(b). Consistent with plain-language guidelines, the material has been 

rewritten and reorganized slightly to improve its clarity, and the 

references to other regulatory sections within part 34 have been 

changed to reflect the numbering of this Interim Final Rule. In 

addition, in Paragraph 37.100(f)(1), language has been added to clarify 

that the Department may withhold a grant applicant's or recipient's WIA 

Title I-funded Federal financial assistance in whole or in part. This 

change does not expand the Department's authority; it has been added 

solely to provide recipients with notice of the Department's actual 

practice.



Section 37.101  Whom must the Director notify of a finding of 

noncompliance?



    Generally, this section contains the same requirements as 29 CFR 

34.47. Consistent with plain-language guidelines, the material has been 

slightly rewritten to improve its clarity. In addition, language has 

been added to clarify that the Director will notify the grant applicant 

or recipient, as well as the grantmaking agency and the Assistant 

Attorney General. This change has been made to reflect the Director's 

actual practice and the requirements of the preceding sections.



Breaches of Conciliation Agreements



Section 37.102  What happens if a grant applicant or recipient breaches 

a Conciliation Agreement?



    This section contains the same requirements as 29 CFR 34.48(b). The 

phrase ``through the Governor or by other means'' has been eliminated 

as redundant. This change is not intended to alter the meaning of this 

section.



Section 37.103  Whom must the Director notify about a breach of a 

Conciliation Agreement?



    This section contains the same requirements as 29 CFR 34.48(c). 

Consistent with plain-language guidelines, the material has been 

slightly rewritten to improve its clarity. In addition, the Director is 

now required to notify the grantmaking agency, for the reasons listed 

in the discussion of Section 37.87.



Section 37.104  What information must a Notification of Breach of 

Conciliation Agreement contain?



    This section contains the same requirements as 29 CFR 34.48(d). 

Consistent with plain-language guidelines, the material has been 

slightly rewritten to improve its clarity. In addition, the references 

to other regulatory sections within part 34 have been changed to 

reflect the numbering of this Interim Final Rule. None of these changes 

is intended to alter the meaning of the section.



Section 37.105  Whom must the Director notify if enforcement action 

under a Notification of Breach of Conciliation Agreement is commenced?



    This section contains the same requirements as 29 CFR 34.48(e). 

Consistent with plain-language guidelines, the material has been 

slightly rewritten and presented in outline form to improve its 

readability. These changes are not intended to alter the meaning of the 

section.



Subpart E--Federal Procedures For Effecting Compliance



Section 37.110  What enforcement procedures does the Department follow 

to effect compliance with the nondiscrimination and equal opportunity 

provisions of WIA and this part?



    This section contains the same requirements as 29 CFR 34.50. 

Consistent with plain-language guidelines, the material has been 

slightly rewritten to improve its clarity. Also, references to JTPA 

have been changed to refer to WIA, and references to other regulatory 

sections within part 34 have been changed to reflect the numbering of 

this Interim Final Rule. None of these changes is intended to alter the 

meaning of the section.



Section 37.111  What hearing procedures does the Department follow?



    This section contains the same requirements as 29 CFR 34.51. 

Consistent with plain-language guidelines, the material has been 

slightly rewritten to improve its clarity. Also, references to another 

regulatory section within part 34 have been changed to reflect the 

numbering of this Interim Final Rule, and the current address of the 

Office of Administrative Law Judges has been provided for the 

convenience of the reader. None of these changes is intended to alter 

the meaning of the section.



Section 37.112  What procedures for initial and final decisions does 

the Department follow?



    This section contains the same requirements as 29 CFR 34.52(a) and 

(b). Consistent with plain-language guidelines, the material has been 

slightly rewritten to improve its clarity. Also, references to JTPA 

have been changed to refer to WIA, and references to other regulatory 

sections within part 34 have been changed to reflect the numbering of 

this Interim Final Rule. None of these changes is intended to alter the 

meaning of the section.



[[ Page 61714]]



Section 37.113  What procedure does the Department follow to suspend, 

terminate, withhold, deny or discontinue WIA Title I financial 

assistance?



    Generally, this section contains the same requirements as 29 CFR 

34.53(a). Consistent with plain-language guidelines, the material has 

been slightly re-punctuated to improve its clarity. Also, references to 

JTPA have been changed to refer to WIA, and references to other 

regulatory sections within part 34 have been changed to reflect the 

numbering of this Interim Final Rule. None of these changes is intended 

to alter the meaning of the section.

    In addition, language has been added to the section to clarify that 

the Department may withhold a grant applicant's or recipient's WIA 

Title I financial assistance in whole or in part, as explained in the 

discussion of Section 37.100.



Section 37.114  What procedure does the Department follow to distribute 

WIA Title I financial assistance to an alternate recipient?



    This section is identical to 29 CFR 34.53(b), except that the 

reference to JTPA has been changed to refer to WIA. This change is not 

intended to alter the meaning of the section.



Section 37.115  What procedures does the Department follow for post-

termination proceedings?



    This section contains the same general requirements as 29 CFR 

34.52(c). Consistent with plain-language guidelines, the material has 

been slightly rewritten to improve its clarity. Also, references to 

JTPA have been changed to refer to WIA, and references to other 

regulatory sections within part 34 have been changed to reflect the 

numbering of this Interim Final Rule. None of these changes is intended 

to alter the meaning of the section.

    In addition, the sentence providing that ``[r]estoration to 

eligibility may be conditioned upon the grant applicant or recipient 

entering into a consent decree'' has been deleted, in order to clarify 

that the grant applicant or recipient must actually bring itself into 

compliance with the nondiscrimination and equal opportunity provisions 

of Section 188 and this part before being restored to eligibility for 

WIA Title I financial assistance.



IV. Regulatory Procedures



Executive Order 12866



    The Department of Labor has determined that this Interim Final Rule 

is not a ``significant regulatory action'' under Executive Order 12866 

because this action will not: (1) Have an annual effect on the economy 

of $100 million or more, or adversely affect in a material way the 

economy, a sector of the economy, productivity, competition, jobs, the 

environment, public health or safety, or State, local, or tribal 

governments or communities; (2) Create a serious inconsistency, or 

otherwise interfere, with an action taken or planned by another agency; 

(3) Materially alter the budgetary impact of entitlements, grants, user 

fees, or loan programs, or the rights and obligations of recipients 

thereof; or (4) Raise novel legal or policy issues arising out of legal 

mandates, the President's priorities, or the principles set forth in 

Executive Order 12866. Therefore, no regulatory impact analysis has 

been prepared.



Regulatory Flexibility Act



    This Interim Final Rule does not substantially change the existing 

obligation of recipients or entities operating Federally-assisted 

programs or activities to apply a policy of nondiscrimination and equal 

opportunity in employment or services. The Department of Labor 

certifies that the proposed rule will not have a significant economic 

impact on substantial number of small business entities. Therefore, a 

regulatory flexibility analysis is not required.



Unfunded Mandates Reform



    Executive Order 12875--This rule will not create an unfunded 

Federal Mandate upon any State, local, or tribal government.

    Unfunded Mandate Reform Act of 1995--This rule will not include any 

Federal mandate that may result in increased expenditures by State, 

local and tribal governments in the aggregate of $100 million or more, 

or increased expenditures by the private sector of $100 million or 

more.



Paperwork Reduction Act



    Certain sections of this Interim Final Rule, including Secs. 37.8, 

37.9, 37.20, 37.29, 37.30, 37.31, 37.34, 37.37, 37.38, 37.39, 37.54, 

37.73, and 37.74, contain information collection requirements. As 

required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), 

the Department of Labor has submitted a copy of these sections to the 

Office of Management and Budget (OMB) for its review. Comments must be 

submitted by December 13, 1999 to: Desk Officer for the Department of 

Labor, Civil Rights Center, Office of Management and Budget, 725 17th 

Street, NW (Rm 10235), Washington, DC 20503. Affected parties do not 

have to comply with the information collection requirements in this 

document until DOL publishes in the Federal Register the control 

numbers assigned by OMB. Publication of the control numbers notifies 

the public that OMB has approved this information collection 

requirement under the Paperwork Reduction Act of 1995.



Request for Comments



    This publication implements the nondiscrimination and equal 

opportunity provisions of Section 188 of WIA, and requests comments 

about this Interim Final Rule from State and local governments; public 

interest groups; current and potential grant applicants for and 

recipients of Federal financial assistance (particularly current and 

potential providers of training services); current and potential 

beneficiaries of such Federal financial assistance; other Federal 

agencies; and the public.



Clarity Of This Regulation



    Executive Order 12866 and the President's memorandum of June 1, 

1998, require each agency to write all rules in plain language. The 

Department invites comments on how to make this proposed rule easier to 

understand. For example:



--Have we organized the material to suit your needs?

--Are the requirements in the rule clearly stated?

--Does the rule contain technical language or jargon that isn't clear?

--Would a different format (grouping and order of sections, use of 

headings, paragraphing) make the rule easier to understand?

--Would more (but shorter) sections be better?

--Could we improve clarity by adding tables, lists, or diagrams?

--What else could we do to make the rule easier to understand?



Absence of Notice of Proposed Rulemaking



    After full and fair consideration over the months since passage of 

the Workforce Investment Act of 1998, the Department of Labor has 

determined that it is in the public interest not to publish a Notice of 

Proposed Rulemaking (NPRM) regarding implementation of Section 188 of 

the Act, but instead to publish this Interim Final Rule. This 

determination is based upon the schedule for implementation of WIA.

    The WIA program is designed eventually to supersede its predecessor 

program, the Job Training Partnership Act (JTPA) program, which sunsets 

on



[[ Page 61715]]



July 1, 2000. The regulations implementing JTPA therefore will remain 

in effect until that date. However, States have the option of 

implementing WIA Title I-financially assisted programs and activities 

as early as July 1, 1999; indeed, the Department is encouraging such 

early implementation.

    CRC is issuing the regulations implementing WIA's nondiscrimination 

and equal opportunity provisions as an Interim Final Rule so that those 

regulations will be in place as soon as possible for early-

implementation States and their recipients. Generally, the Rule tracks 

the nondiscrimination and equal opportunity regulations in place under 

JTPA; the Rule does, however, contain a number of new or revised 

provisions that will require these States and their recipients to take 

action before the date on which they implement WIA, or as soon after 

that date as possible.

    For example, each application for financial assistance under either 

JTPA or WIA Title I must contain assurances regarding the grant 

applicant's compliance with various Federal laws and regulations 

concerning nondiscrimination and equal opportunity. For the WIA 

program, the required assurance has been rewritten in plain language. 

The new language appears in Section 37.20 of the Interim Final Rule. 

Publication of the regulations as an immediately-effective Interim 

Final Rule will eliminate any possible ambiguity regarding the language 

that grant applicants in early-implementation states must include in 

their applications for WIA Title I financial assistance.

    Similarly, Section 37.76 of the Rule contains a list of elements 

that a recipient's discrimination complaint processing procedures must 

include. Although the JTPA nondiscrimination regulations contained a 

general requirement that recipients adopt and publish complaint 

processing procedures, the new list of requisite elements for those 

procedures is more detailed, and recipients in early-implementing 

states will need to know as soon as possible the actual requirements 

for those procedures in order to ensure that their complaint processing 

procedures comply with the requirements of the WIA program. Publishing 

an Interim Final Rule, rather than an NPRM, will assist States and 

recipients by providing a firm list of requirements that will be in 

place on or soon after the date of implementation, rather than a 

proposed list that might change before that date.

    Furthermore, the Interim Final Rule sets a comment period to elicit 

any concerns raised by the rule. The comment period takes place before 

the final rule will be implemented, so that CRC may receive comments in 

time to consider them in preparing the final rule for publication.

    For the above-listed reasons, the Department of Labor finds that 

publishing an NPRM, and providing a period for notice and comment, 

before implementing this Interim Final Rule would be contrary to the 

public interest, and therefore constitute good cause under 5 U.S.C. 

553(b)(B) for publishing these regulations as an Interim Final Rule. 

Furthermore, the Department finds that the above-listed reasons also 

constitute good cause under 5 U.S.C. 553(d)(3) for waiving the 

customary requirement to delay the effective date of a regulation for 

30 days following its publication. Therefore, this Interim Final Rule 

is effective immediately upon publication.



List of Subjects in 29 CFR Part 37



    Administrative practice and procedure, Discrimination, Civil 

rights, Equal education opportunity, Equal employment opportunity, 

Grant programs--Labor, Individuals with disabilities, Investigations, 

Reporting and recordkeeping requirements.



    Signed at Washington, D.C. this 22nd day of October 1999.

Alexis M. Herman,

Secretary of Labor.



    Accordingly, title 29, subtitle A of the Code of Federal 

Regulations is amended by adding part 37 to read as follows:



PART 37--IMPLEMENTATION OF THE NONDISCRIMINATION AND EQUAL 

OPPORTUNITY PROVISIONS OF THE WORKFORCE INVESTMENT ACT OF 1998 

(WIA)



Subpart A--General Provisions



Sec.

37.1  What is the purpose of this part?

37.2  To whom does this part apply, and what is the scope of this 

part?

37.3  How does this part affect a recipient's other obligations?

37.4  What definitions apply to this part?

37.5  What forms of discrimination are prohibited by this part?

37.6  What specific discriminatory actions, based on prohibited 

grounds other than disability, are prohibited by this part?

37.7  What specific discriminatory actions based on disability are 

prohibited by this part?

37.8  What are a recipient's responsibilities regarding reasonable 

accommodation and reasonable modification for individuals with 

disabilities?

37.9  What are a recipient's responsibilities to communicate with 

individuals with disabilities?

37.10  To what extent are a recipient's employment practices covered 

by this part?

37.11  To what extent are intimidation and retaliation prohibited by 

this part?

37.12  What Department of Labor office is responsible for 

administering this part?

37.13  Who is responsible for providing interpretations of this 

part?

37.14  Under what circumstances may the Secretary delegate the 

responsibilities of this part?

37.15  What are the Director's responsibilities to coordinate with 

other civil rights agencies?

37.16  What is this part's effect on a recipient's obligations under 

other laws, and what limitations apply?



Subpart B--Recordkeeping and Other Affirmative Obligations of 

Recipients



Assurances



37.20  What is a grant applicant's obligation to provide a written 

assurance?

37.21  How long will the recipient's obligation under the assurance 

last, and how broad is the obligation?

37.22  How must covenants be used in connection with this part?



Equal Opportunity Officers



37.23  Who must designate an Equal Opportunity Officer?

37.24  Who is eligible to serve as an Equal Opportunity Officer?

37.25  What are the responsibilities of an Equal Opportunity 

Officer?

37.26  What are a recipient's obligations relating to the Equal 

Opportunity Officer?

37.27  What are the obligations of small recipients regarding Equal 

Opportunity Officers?

37.28  What are the obligations of service providers regarding Equal 

Opportunity Officers?



Notice and Communication



37.29  What are a recipient's obligations to disseminate its equal 

opportunity policy?

37.30  What specific wording must the notice contain?

37.31  Where must the notice required by Secs. 37.29 and 37.30 be 

published?

37.32  When must the notice be provided?

37.33  Who is responsible for meeting the notice requirement with 

respect to service providers?

37.34  What type of notice must a recipient include in publications, 

broadcasts, and other communications?

37.35  What are a recipient's responsibilities to provide services 

and information in languages other than English?

37.36  What responsibilities does a recipient have to communicate 

information during orientations?



[[ Page 61716]]



Data and Information Collection and Maintenance



37.37  What are a recipient's responsibilities to collect and 

maintain data and other information?

37.38  What information must grant applicants and recipients provide 

to CRC?

37.39  How long must grant applicants and recipients maintain the 

records required under this part?

37.40  What access to sources of information must grant applicants 

and recipients provide the Director?

37.41  What responsibilities do grant applicants, recipients, and 

the Department have to maintain the confidentiality of the 

information collected?

37.42  What are a recipient's responsibilities under this part to 

provide universal access to WIA Title I-financially assisted 

programs and activities?



Subpart C--Governor's Responsibilities to Implement the 

Nondiscrimination and Equal Opportunity Requirements of WIA



37.50  To whom does this subpart apply?

37.51  What are a Governor's oversight responsibilities?

37.52  To what extent may a Governor be liable for the actions of a 

recipient he or she has financially assisted under WIA Title I?

37.53  What are a Governor's oversight responsibilities regarding 

recipients' recordkeeping?

37.54  That are a Governor's obligations to develop and maintain a 

Methods of Administration?

37.55  When must the Governor carry out his or her obligations with 

regard to the Methods of Administration?



Subpart D--Compliance Procedures



37.60  How does the Director evaluate compliance with the 

nondiscrimination and equal opportunity provisions of WIA and this 

part?

37.61  Is there authority to issue subpoenas?



Compliance Reviews



37.62  What are the authority and procedures for conducting pre-

approval compliance reviews?

37.63  What are the authority and procedures for conducting post-

approval compliance reviews?

37.64  What procedures must the Director follow when CRC has 

completed a post-approval compliance review?

37.65  What is the Director's authority to monitor the activities of 

a Governor?

37.66  What happens if a recipient fails to submit requested data, 

records, and/or information, or fails to provide CRC with the 

required access?

37.67  What information must a Notice to Show Cause contain?

37.68  How may a recipient show cause why enforcement proceedings 

should not be instituted?

37.69  What happens if a recipient fails to show cause?



Complaint Processing Procedures



37.70  Who may file a complaint concerning discrimination connected 

with WIA Title I?

37.71  Where may a complaint be filed?

37.72  When must a complaint be filed?

37.73  What information must a complaint contain?

37.74  Are there any forms that a complainant may use to file a 

complaint?

37.75  Is there a right of representation in the complaint process?

37.76  What are the required elements of a recipient's 

discrimination complaint processing procedures?

37.77  Who is responsible for developing and publishing complaint 

processing procedures for service providers?

37.78  Does a recipient have any special obligations in cases in 

which the recipient determines that it has no jurisdiction over a 

complaint?

37.79  If, before the 90-day period has expired, a recipient issues 

a Notice of Final Action with which the complainant is dissatisfied, 

how long does the complainant have to file a complaint with the 

Director?

37.80  What happens if a recipient fails to issue a Notice of Final 

Action within 90 days of the date on which a complaint was filed?

37.81  Are there any circumstances under which the Director may 

extend the time limit for filing a complaint with him or her?

37.82  Does the Director accept every complaint for resolution?

37.83  What happens if a complaint does not contain enough 

information?

37.84  What happens if CRC does not have jurisdiction over a 

complaint?

37.85  Are there any other circumstances in which the Director will 

send a complaint to another authority?

37.86  What must the Director do if he or she determines that a 

complaint will not be accepted?

37.87  What must the Director do if he or she determines that a 

complaint will be accepted?

37.88  Who may contact CRC about a complaint?

37.89  May the Director offer the parties to a complaint the option 

of mediation?



Determinations



37.90  If a complaint is investigated, what must the Director do 

when the investigation is completed?

37.91  What notice must the Director issue if he or she finds 

reasonable cause to believe that a violation has taken place?

37.92  What notice must the Director issue if he or she finds no 

reasonable cause to believe that a violation has taken place?

37.93  What happens if the Director finds that a violation has taken 

place, and the recipient fails or refuses to take the corrective 

action listed in the Initial Determination?

37.94  What corrective or remedial actions may be imposed where, 

after a compliance review or complaint investigation, the Director 

finds a violation of the nondiscrimination and equal opportunity 

provisions of WIA or this part?

37.95  What procedures apply if the Director finds that a recipient 

has violated the nondiscrimination and equal opportunity provisions 

of WIA or this part?

37.96  What are the required elements of a written assurance?

37.97  What are the required elements of a Conciliation Agreement?

37.98  What are the circumstances under which the Director will 

conclude that compliance cannot be secured by voluntary means?

37.99  If the Director concludes that compliance cannot be secured 

by voluntary means, what actions must he or she take?

37.100  What information must a Final Determination contain?

37.101  Whom must the Director notify of a finding of noncompliance?



Breaches of Conciliation Agreements



37.102  What happens if a grant applicant or recipient breaches a 

Conciliation Agreement?

37.103  Whom must the Director notify about a breach of a 

Conciliation Agreement?

37.104  What information must a Notification of Breach of 

Conciliation Agreement contain?

37.105  Whom must the Director notify if enforcement action under a 

Notification of Breach of Conciliation Agreement is commenced?



Subpart E--Federal Procedures For Effecting Compliance



37.110  What enforcement procedures does the Department follow to 

effect compliance with the nondiscrimination and equal opportunity 

provisions of WIA and this part?

37.111  What hearing procedures does the Department follow?

37.112  What procedures for initial and final decisions does the 

Department follow?

37.113  What procedure does the Department follow to suspend, 

terminate, withhold, deny or discontinue WIA Title I financial 

assistance?

37.114  What procedure does the Department follow to distribute WIA 

Title I financial assistance to an alternate recipient?

37.115  What procedures does the Department follow for post-

termination proceedings?



    Authority: Sections 134(b), 136(d)(2)(F), 136(e), 172(a), 

183(c), 185(c)(2), 185(d)(1)(E), 186, 187 and 188 of the Workforce 

Investment Act of 1998, 29 U.S.C. 2801 et seq.; Title VI of the 

Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d, et seq.; 

Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 

794; the Age Discrimination Act of 1975, as amended, 42



[[ Page 61717]]



U.S.C. 6101; and Title IX of the Education Amendments of 1972, as 

amended, 20 U.S.C. 1681.



Subpart A--General Provisions





Sec. 37.1  What is the purpose of this part?



    The purpose of this part is to implement the nondiscrimination and 

equal opportunity provisions of the Workforce Investment Act of 1998 

(WIA), which are contained in section 188 of WIA. Section 188 prohibits 

discrimination on the grounds of race, color, religion, sex, national 

origin, age, disability, political affiliation or belief, and for 

beneficiaries only, citizenship or participation in a WIA Title I-

financially assisted program or activity. This part clarifies the 

application of the nondiscrimination and equal opportunity provisions 

of WIA and provides uniform procedures for implementing them.





Sec. 37.2  To whom does this part apply, and what is the scope of this 

part?



    (a) This part applies to:

    (1) Any recipient, as defined in Sec. 37.4;

    (2) Programs and activities that are part of the One-Stop delivery 

system and that are operated by One-Stop partners listed in section 

121(b) of WIA, to the extent that the programs and activities are being 

conducted as part of the One-Stop delivery system; and

    (3) The employment practices of a recipient and/or One-Stop 

partner, as provided in Sec. 37.10.

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

    (1) Programs or activities that are financially assisted by the 

Department exclusively under laws other than Title I of WIA, and that 

are not part of the One-Stop delivery system (including programs or 

activities implemented under, authorized by, and/or financially 

assisted by the Department under, JTPA);

    (2) Contracts of insurance or guaranty;

    (3) The ultimate beneficiary to this program of Federal financial 

assistance;

    (4) Federal procurement contracts, with the exception of contracts 

to operate or provide services to Job Corps Centers; and

    (5) Federally-operated Job Corps Centers. The operating Department 

is responsible for enforcing the nondiscrimination and equal 

opportunity laws to which such Centers are subject.





Sec. 37.3  How does this part affect a recipient's other obligations?



    (a) A recipient's compliance with this part will satisfy any 

obligation of the recipient to comply with 29 CFR part 31, the 

Department of Labor's regulations implementing Title VI of the Civil 

Rights Act of 1964, as amended (Title VI), and with Subparts A, D and E 

of 29 CFR part 32, the Department's regulations implementing Section 

504 of the Rehabilitation Act of 1973, as amended (Section 504).

    (b) 29 CFR part 32, Subparts B and C and Appendix A, the 

Department's regulations which implement the requirements of Section 

504 pertaining to employment practices and employment-related training, 

program accessibility, and reasonable accommodation, are hereby 

incorporated into this part by reference. Therefore, recipients must 

comply with the requirements set forth in those regulatory sections as 

well as the requirements listed in this part.

    (c) Recipients that are also public entities or public 

accommodations, as defined by Titles II and III of the Americans with 

Disabilities Act of 1990 (ADA), should be aware of obligations imposed 

by those titles.

    (d) Similarly, recipients that are also employers, employment 

agencies, or other entities covered by Title I of the ADA should be 

aware of obligations imposed by that title.

    (e) Compliance with this part does not affect, in any way, any 

additional obligation that a recipient may have to comply with the 

following laws and their implementing regulations:

    (1) Executive Order 11246, as amended;

    (2) Sections 503 and 504 of the Rehabilitation Act of 1973, as 

amended (29 U.S.C. 793 and 794);

    (3) The affirmative action provisions of the Vietnam Era Veterans' 

Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);

    (4) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);

    (5) Titles VI and VII of the Civil Rights Act of 1964, as amended 

(42 U.S.C. 2000d et seq. and 2000e et seq.);

    (6) The Age Discrimination Act of 1975, as amended (42 U.S.C. 

6101);

    (7) The Age Discrimination in Employment Act of 1967, as amended 

(29 U.S.C. 621);

    (8) Title IX of the Education Amendments of 1972, as amended (Title 

IX) (20 U.S.C. 1681);

    (9) The Americans with Disabilities Act of 1990, as amended (42 

U.S.C. 12101 et seq.); and

    (10) The anti-discrimination provision of the Immigration and 

Nationality Act, as amended (8 U.S.C. 1324b).

    (f) This rule does not preempt consistent State and local 

requirements.





Sec. 37.4  What definitions apply to this part?



    As used in this part, the term:

    Administrative Law Judge means a person appointed as provided in 5 

U.S.C. 3105 and 5 CFR 930.203, and qualified under 5 U.S.C. 557, to 

preside at hearings held under the nondiscrimination and equal 

opportunity provisions of WIA and this part.

    Aid, benefits, services, or training means WIA Title I--financially 

assisted services, financial or other aid, or benefits provided by or 

through a recipient or its employees, or by others through contract or 

other arrangements with the recipient. ``Aid, benefits, services, or 

training'' includes, but is not limited to:

    (1) Core and intensive services;

    (2) Education or training;

    (3) Health, welfare, housing, social service, rehabilitation, or 

other supportive services;

    (4) Work opportunities; and

    (5) Cash, loans, or other financial assistance to individuals.

    As used in this part, the term includes any aid, benefits, 

services, or training provided in or through a facility that has been 

constructed, expanded, altered, leased, rented, or otherwise obtained, 

in whole or in part, with Federal financial assistance under Title I of 

WIA.

    Applicant means an individual who is interested in being considered 

for WIA Title I--financially assisted aid, benefits, services, or 

training by a recipient, and who has signified that interest by 

submitting personal information in response to a request by the 

recipient. See also the definitions of ``application for benefits,'' 

``eligible applicant/registrant,'' ``participant,'' ``participation,'' 

and ``recipient'' in this section.

    Applicant for employment means a person or persons who make(s) 

application for employment with a recipient of Federal financial 

assistance under WIA Title I.

    Application for assistance means the process by which required 

documentation is provided to the Governor, recipient, or Department 

before and as a condition of receiving WIA Title I financial assistance 

(including both new and continuing assistance).

    Application for benefits means the process by which information, 

including but not limited to a completed application form, is provided 

by applicants or eligible applicants before and as a condition of 

receiving WIA Title I--financially assisted aid, benefits, services, or 

training from a recipient.

    Assistant Attorney General means the Assistant Attorney General, 

Civil Rights



[[ Page 61718]]



Division, United States Department of Justice.

    Assistant Secretary means the Assistant Secretary for 

Administration and Management, United States Department of Labor.

    Auxiliary aids or services includes--

    (1) Qualified interpreters, notetakers, transcription services, 

written materials, telephone handset amplifiers, assistive listening 

systems, telephones compatible with hearing aids, closed caption 

decoders, open and closed captioning, telecommunications devices for 

deaf persons (TDDs/TTYs), videotext displays, or other effective means 

of making aurally delivered materials available to individuals with 

hearing impairments;

    (2) Qualified readers, taped texts, audio recordings, brailled 

materials, large print materials, or other effective means of making 

visually delivered materials available to individuals with visual 

impairments;

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

    (4) Other similar services and actions.

    Beneficiary means the individual or individuals intended by 

Congress to receive aid, benefits, services, or training from a 

recipient.

    Citizenship See ``Discrimination on the ground of citizenship'' in 

this section.

    CRC means the Civil Rights Center, Office of the Assistant 

Secretary for Administration and Management, U.S. Department of Labor.

    Department means the U.S. Department of Labor (DOL), including its 

agencies and organizational units.

    Departmental grantmaking agency means a grantmaking agency within 

the U.S. Department of Labor.

    Director means the Director, Civil Rights Center (CRC), Office of 

the Assistant Secretary for Administration and Management, U.S. 

Department of Labor, or a designee authorized to act for the Director.

    Disability means, with respect to an individual, a physical or 

mental impairment that substantially limits one or more of the major 

life activities of such individual; a record of such an impairment; or 

being regarded as having such an impairment.

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

    (A) Any physiological disorder or condition, cosmetic 

disfigurement, or anatomical loss affecting one or more of the 

following body systems: neurological, musculoskeletal, special sense 

organs, respiratory (including speech organs), cardiovascular, 

reproductive, digestive, genitourinary, hemic and lymphatic, skin, and 

endocrine;

    (B) Any mental or psychological disorder such as mental 

retardation, organic brain syndrome, emotional or mental illness, and 

specific learning disabilities.

    (ii) The phrase physical or mental impairment includes, but is not 

limited to, such contagious and noncontagious diseases and conditions 

as orthopedic, visual, speech and hearing impairments, cerebral palsy, 

epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart 

disease, diabetes, mental retardation, emotional illness, specific 

learning disabilities, HIV disease (whether symptomatic or 

asymptomatic), tuberculosis, drug addiction, and alcoholism. The phrase 

``physical or mental impairment'' does not include homosexuality or 

bisexuality.

    (2) The phrase major life activities means functions such as caring 

for one's self, performing manual tasks, walking, seeing, hearing, 

speaking, breathing, learning, and working.

    (3) The phrase has a record of such an impairment means has a 

history of, or has been misclassified as having, a mental or physical 

impairment that substantially limits one or more major life activities.

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

    (i) Has a physical or mental impairment that does not substantially 

limit major life activities but that is treated by the recipient as 

being such a limitation;

    (ii) Has a physical or mental impairment that substantially limits 

major life activities only as a result of the attitudes of others 

toward such impairment; or

    (iii) Has none of the impairments defined in paragraph (1) of this 

definition but is treated by the recipient as having such an 

impairment.

    Discrimination on the ground of citizenship means a denial of 

participation in programs or activities financially assisted in whole 

or in part under Title I of WIA to individuals on the basis of their 

status as citizens or nationals of the United States, lawfully admitted 

permanent resident aliens, refugees, asylees, and parolees, or other 

immigrants authorized by the Attorney General to work in the United 

States.

    Eligible applicant/registrant means an individual who has been 

determined eligible to participate in one or more WIA Title I--

financially assisted programs or activities.

    Employment practices means a recipient's practices related to 

employment, including but not limited to:

    (1) Recruitment or recruitment advertising;

    (2) Selection, placement, layoff or termination of employees;

    (3) Upgrading, promotion, demotion or transfer of employees;

    (4) Training, including employment-related training;

    (5) Participation in upward mobility programs;

    (6) Deciding rates of pay or other forms of compensation;

    (7) Use of facilities; or

    (8) Deciding other terms, conditions, benefits and/or privileges of 

employment.

    Employment-related training means training that allows or enables 

an individual to obtain employment.

    Entity means any person, corporation, partnership, joint venture, 

sole proprietorship, unincorporated association, consortium, Indian 

tribe or tribal organization, Native Hawaiian organization, and/or 

entity authorized by State or local law; any State or local government; 

and/or any agency, instrumentality or subdivision of such a government.

    Facility means all or any portion of buildings, structures, sites, 

complexes, equipment, roads, walks, passageways, parking lots, rolling 

stock or other conveyances, or other real or personal property or 

interest in such property, including the site where the building, 

property, structure, or equipment is located. The phrase ``real or 

personal property'' in the preceding sentence includes indoor 

constructs that may or may not be permanently attached to a building or 

structure. Such constructs include, but are not limited to, office 

cubicles, computer kiosks, and similar constructs.

    Federal grantmaking agency means a Federal agency that provides 

financial assistance under any Federal statute.

    Financial assistance means any of the following:

    (1) Any grant, subgrant, loan, or advance of funds, including funds 

extended to any entity for payment to or on behalf of participants 

admitted to that entity for training, or extended directly to such 

participants for payment to that entity;

    (2) Provision of the services of grantmaking agency personnel, or 

of other personnel at the grantmaking agency's expense;

    (3) A grant or donation of real or personal property or any 

interest in or use of such property, including:

    (a) Transfers or leases of property for less than fair market value 

or for reduced consideration;



[[ Page 61719]]



    (b) Proceeds from a subsequent sale, transfer, or lease of such 

property, if the grantmaking agency's share of the fair market value of 

the property is not returned to the grantmaking agency; and

    (c) The sale, lease, or license of, and/or the permission to use 

(other than on a casual or transient basis), such property or any 

interest in such property, either:

    (i) Without consideration,

    (ii) At a nominal consideration, or

    (iii) At a consideration that is reduced or waived either for the 

purpose of assisting the recipient, or in recognition of the public 

interest to be served by such sale or lease to or use by the recipient;

    (4) Waiver of charges that would normally be made for the 

furnishing of services by the grantmaking agency; and

    (5) Any other agreement, arrangement, contract or subcontract 

(other than a procurement contract or a contract of insurance or 

guaranty), or other instrument that has as one of its purposes the 

provision of assistance or benefits under the statute or policy that 

authorizes assistance by the grantmaking agency.

    Financial assistance under Title I of WIA means any of the 

following, when authorized or extended under WIA Title I:

    (1) Any grant, subgrant, loan, or advance of Federal funds, 

including funds extended to any entity for payment to or on behalf of 

participants admitted to that entity for training, or extended directly 

to such participants for payment to that entity;

    (2) Provision of the services of Federal personnel, or of other 

personnel at Federal expense;

    (3) A grant or donation of Federal real or personal property or any 

interest in or use of such property, including:

    (a) Transfers or leases of property for less than fair market value 

or for reduced consideration;

    (b) Proceeds from a subsequent sale, transfer, or lease of such 

property, if the Federal share of the fair market value of the property 

is not returned to the Federal Government; and

    (c) The sale, lease, or license of, and/or the permission to use 

(other than on a casual or transient basis), such property or any 

interest in such property, either:

    (i) Without consideration,

    (ii) At a nominal consideration, or

    (iii) At a consideration that is reduced or waived either for the 

purpose of assisting the recipient, or in recognition of the public 

interest to be served by such sale or lease to or use by the recipient;

    (4) Waiver of charges that would normally be made for the 

furnishing of Government services; and

    (5) Any other agreement, arrangement, contract or subcontract 

(other than a Federal procurement contract or a contract of insurance 

or guaranty), or other instrument that has as one of its purposes the 

provision of assistance or benefits under WIA Title I.

    Fundamental alteration means:

    (1) A change in the essential nature of a program or activity as 

defined in this part, including but not limited to an aid, service, 

benefit, or training; or

    (2) A cost that a recipient can demonstrate would result in an 

undue burden. Factors to be considered in making the determination 

whether the cost of a modification would result in such a burden 

include:

    (a) The nature and net cost of the modification needed, taking into 

consideration the availability of tax credits and deductions, and/or 

outside financial assistance, for the modification;

    (b) The overall financial resources of the facility or facilities 

involved in the provision of the modification, including:

    (i) The number of persons aided, benefited, served, or trained by, 

or employed at, the facility or facilities; and

    (ii) The effect the modification would have on the expenses and 

resources of the facility or facilities;

    (c) The overall financial resources of the recipient, including:

    (i) The overall size of the recipient;

    (ii) The number of persons aided, benefited, served, trained, or 

employed by the recipient; and

    (iii) The number, type and location of the recipient's facilities;

    (d) The type of operation or operations of the recipient, 

including:

    (i) The geographic separateness and administrative or fiscal 

relationship of the facility or facilities in question to the 

recipient; and

    (ii) Where the modification sought is employment-related, the 

composition, structure and functions of the recipient's workforce; and

    (e) The impact of the modification upon the operation of the 

facility or facilities, including:

    (i) The impact on the ability of other participants to receive aid, 

benefits, services, or training, or of other employees to perform their 

duties; and

    (ii) The impact on the facility's ability to carry out its mission.

    Governor means the chief elected official of any State or his or 

her designee.

    Grant applicant means an entity that submits the required 

documentation to the Governor, recipient, or Department, before and as 

a condition of receiving financial assistance under Title I of WIA.

    Grantmaking agency means an entity that provides Federal financial 

assistance.

    Guideline means written informational material supplementing an 

agency's regulations and provided to grant applicants and recipients to 

provide program-specific interpretations of their responsibilities 

under the regulations.

    Illegal use of drugs means the use of drugs, the possession or 

distribution of which is unlawful under the Controlled Substances Act, 

as amended (21 U.S.C. 812). ``Illegal use of drugs'' does not include 

the use of a drug taken under supervision of a licensed health care 

professional, or other uses authorized by the Controlled Substances Act 

or other provisions of Federal law.

    Individual with a disability means a person who has a disability, 

as defined in this section.

    (1) The term ``individual with a disability'' does not include an 

individual on the basis of:

    (i) Transvestism, transsexualism, pedophilia, exhibitionism, 

voyeurism, gender identity disorders not resulting from physical 

impairments, or other sexual behavior disorders;

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

    (iii) Psychoactive substance use disorders resulting from current 

illegal use of drugs.

    (2) The term ``individual with a disability'' also does not include 

an individual who is currently engaging in the illegal use of drugs, 

when a recipient acts on the basis of such use. This limitation does 

not exclude as an individual with a disability an individual who:

    (i) Has successfully completed a supervised drug rehabilitation 

program and is no longer engaging in the illegal use of drugs, or has 

otherwise been rehabilitated successfully and is no longer engaging in 

such use;

    (ii) Is participating in a supervised rehabilitation program and is 

no longer engaging in such use; or

    (iii) Is erroneously regarded as engaging in such use, but is not 

engaging in such use, except that it is not a violation of the 

nondiscrimination and equal opportunity provisions of WIA or this part 

for a recipient to adopt or administer reasonable policies or 

procedures, including but not limited to drug testing, designed to 

ensure that an individual described in paragraph (1)(i) or (1)(ii) of 

this definition is no longer engaging in the illegal use of drugs.



[[ Page 61720]]



    (2) With regard to employment, the term ``individual with a 

disability'' does not include any individual who:

    (i) Is an alcoholic:

    (A) Whose current use of alcohol prevents such individual from 

performing the duties of the job in question, or

    (B) Whose employment, by reason of such current alcohol abuse, 

would constitute a direct threat to property or the safety of others; 

or

    (ii) Has a currently contagious disease or infection, if:

    (A) That disease or infection prevents him or her from performing 

the duties of the job in question, or

    (B) His or her employment, because of that disease or infection, 

would constitute a direct threat to the health and safety of others.

    Labor market area means an economically integrated geographic area 

within which individuals can reside and find employment within a 

reasonable distance or can readily change employment without changing 

their place of residence. Such an area must be identified in accordance 

with either criteria used by the Bureau of Labor Statistics of the 

Department of Labor in defining such areas, or similar criteria 

established by a Governor.

    LWIA (Local Workforce Investment Area) grant recipient means the 

entity that receives WIA Title I financial assistance for a Local 

Workforce Investment Area directly from the Governor and disburses 

those funds for workforce investment activities.

    Methods of Administration means the written document and supporting 

documentation developed under Sec. 37.54.

    National Programs means:

    (1) Job Corps; and

    (2) Programs receiving Federal funds under Title I, Subtitle D of 

WIA directly from the Department. Such programs include, but are not 

limited to, the Migrant and Seasonal Workers Programs, Native American 

Programs, and Veterans' Workforce Investment programs.

    Noncompliance means a failure of a grant applicant or recipient to 

comply with any of the applicable requirements of the nondiscrimination 

and equal opportunity provisions of WIA or this part.

    On-the-Job Training (OJT) means training by an employer that is 

provided to a paid participant while the participant is engaged in 

productive work that:

    (1) Provides knowledge or skills essential to the full and adequate 

performance of the job;

    (2) Provides reimbursement to the employer of up to 50 percent of 

the wage rate of the participant, for the extraordinary costs of 

providing the training and additional supervision related to the 

training; and

    (3) Is limited in duration as appropriate to the occupation for 

which the participant is being trained, taking into account the content 

of the training, the prior work experience of the participant, and the 

service strategy of the participant, as appropriate.

    Participant means an individual who has been determined to be 

eligible to participate in, and who is receiving aid, benefits, 

services or training under, a program or activity funded in whole or in 

part under Title I of WIA. ``Participant'' includes, but is not limited 

to, applicants receiving any service(s) under state Employment Service 

programs, and claimants receiving any service(s) under state 

Unemployment Insurance programs.

    Participation is considered to commence on the first day, following 

determination of eligibility, on which the participant began receiving 

subsidized aid, benefits, services, or training provided under Title I 

of WIA.

    Parties to a hearing means the Department and the grant 

applicant(s), recipient(s), or Governor.

    Population eligible to be served means the total population of 

adults and eligible youth who reside within the labor market area that 

is served by a particular recipient, and who are eligible to seek WIA 

Title I-financially assisted aid, benefits, services or training from 

that recipient. See the definition of ``labor market area'' in this 

section.

    Program or activity: See ``WIA Title I-financially assisted program 

or activity'' in this section.

    Prohibited ground means any basis upon which it is illegal to 

discriminate under the nondiscrimination and equal opportunity 

provisions of WIA or this part, i.e., race, color, religion, sex, 

national origin, age, disability, political affiliation or belief, and, 

for beneficiaries only, citizenship or participation in a WIA Title I-

financially assisted program or activity.

    Public entity means:

    (1) Any State or local government; and

    (2) Any department, agency, special purpose district, workforce 

investment board, or other instrumentality of a State or States or 

local government.

    Qualified individual with a disability means:

    (1) With respect to employment, an individual with a disability 

who, with or without reasonable accommodation, is capable of performing 

the essential functions of the job in question;

    (2) With respect to aid, benefits, services, or training, an 

individual with a disability who, with or without reasonable 

accommodation and/or reasonable modification, meets the essential 

eligibility requirements for the receipt of such aid, benefits, 

services, or training.

    Qualified interpreter means an interpreter who is able to interpret 

effectively, accurately, and impartially, either for individuals with 

disabilities or for individuals with limited English skills. The 

interpreter must be able to interpret both receptively and 

expressively, using any necessary specialized vocabulary.

    Reasonable accommodation. (1) The term ``reasonable accommodation'' 

means:

    (i) Modifications or adjustments to an application/registration 

process that enables a qualified applicant/registrant with a disability 

to be considered for the aid, benefits, services, training, or 

employment that the qualified applicant/registrant desires; or

    (ii) Modifications or adjustments that enable a qualified 

individual with a disability to perform the essential functions of a 

job, or to receive aid, benefits, services, or training equal to that 

provided to qualified individuals without disabilities. These 

modifications or adjustments may be made to:

    (A) The environment where work is performed or aid, benefits, 

services, or training are given; or

    (B) The customary manner in which, or circumstances under which, a 

job is performed or aid, benefits, services, or training are given; or

    (iii) Modifications or adjustments that enable a qualified 

individual with a disability to enjoy the same benefits and privileges 

of the aid, benefits, services, training, or employment as are enjoyed 

by other similarly situated individuals without disabilities.

    (2) Reasonable accommodation includes, but is not limited to:

    (i) Making existing facilities used by applicants, registrants, 

eligible applicants/registrants, participants, applicants for 

employment, and employees readily accessible to and usable by 

individuals with disabilities; and

    (ii) Restructuring of a job or a service, or of the way in which 

aid, benefits, or training is/are provided; part-time or modified work 

or training schedules; acquisition or modification of equipment or 

devices; appropriate adjustment or modifications of examinations, 

training materials, or policies; the provision of readers or 

interpreters; and other similar



[[ Page 61721]]



accommodations for individuals with disabilities.

    (3) To determine the appropriate reasonable accommodation, it may 

be necessary for the recipient to initiate an informal, interactive 

process with the qualified individual with a disability in need of the 

accommodation. This process should identify the precise limitations 

resulting from the disability and potential reasonable accommodations 

that could overcome those limitations.

    Recipient means any entity to which financial assistance under WIA 

Title I is extended, either directly from the Department or through the 

Governor or another recipient (including any successor, assignee, or 

transferee of a recipient), but excluding the ultimate beneficiaries of 

the WIA Title I-funded program or activity. In instances in which a 

Governor operates a program or activity, either directly or through a 

State agency, using discretionary funds apportioned to him or her under 

WIA Title I (rather than disbursing the funds to another recipient), 

the Governor is also a recipient. ``Recipient'' includes, but is not 

limited to:

    (1) State-level agencies that administer, or are financed in whole 

or in part with, WIA Title I funds;

    (2) State Employment Security Agencies;

    (3) State and local Workforce Investment Boards;

    (4) LWIA grant recipients;

    (5) One-Stop operators;

    (6) Service providers, including eligible training providers;

    (7) On-the-Job Training (OJT) employers;

    (8) Job Corps contractors and center operators, excluding the 

operators of federally-operated Job Corps centers;

    (9) Job Corps national training contractors;

    (10) Outreach and admissions agencies, including Job Corps 

contractors that perform these functions;

    (11) Placement agencies, including Job Corps contractors that 

perform these functions; and

    (12) Other National Program recipients.

    In addition, for purposes of this part, One-Stop partners, as 

defined in section 121(b) of WIA, are treated as ``recipients,'' and 

are subject to the nondiscrimination and equal opportunity requirements 

of this part, to the extent that they participate in the One-Stop 

delivery system.

    Registrant means the same as ``applicant'' for purposes of this 

part. See also the definitions of ``application for benefits,'' 

``eligible applicant/registrant,'' ``participant,'' ``participation,'' 

and ``recipient'' in this section.

    Respondent means a grant applicant or recipient (including a 

Governor) against which a complaint has been filed under the 

nondiscrimination and equal opportunity provisions of WIA or this part.

    Secretary means the Secretary of Labor, U.S. Department of Labor, 

or his or her designee.

    Sectarian activities means religious worship or ceremony, or 

sectarian instruction.

    Section 504 means Section 504 of the Rehabilitation Act of 1973, 29 

U.S.C. 794, as amended, which forbids discrimination against qualified 

individuals with disabilities in federally-financed and conducted 

programs and activities.

    Service provider means:

    (1) Any operator of, or provider of aid, benefits, services, or 

training to:

    (a) Any WIA Title I--funded program or activity that receives 

financial assistance from or through any State or LWIA grant recipient; 

or

    (b) Any participant through that participant's Individual Training 

Account (ITA); or

    (2) Any entity that is selected and/or certified as an eligible 

provider of training services to participants.

    Small recipient means a recipient who:

    (a) Serves a total of fewer than 15 beneficiaries during the entire 

grant year, and

    (b) Employs fewer than 15 employees on any given day during the 

grant year.

    Solicitor means the Solicitor of Labor, U.S. Department of Labor, 

or his or her designee.

    State means the individual states of the United States, the 

District of Columbia, the Commonwealth of Puerto Rico, the Virgin 

Islands, American Samoa, Guam, Wake Island, the Commonwealth of the 

Northern Mariana Islands, the Federated States of Micronesia, the 

Republic of the Marshall Islands, and Palau.

    State Employment Security Agency (SESA) means the State agency 

that, under the State Administrator, contains both State agencies with 

responsibility for administering programs authorized under the Wagner-

Peyser Act, and unemployment insurance programs authorized under Title 

III of the Social Security Act.

    State Programs means programs financially assisted in whole or in 

part under Title I of WIA in which either:

    (1) The Governor and/or State receives and disburses the grant to 

or through LWIA grant recipients; or

    (2) The Governor retains the grant funds and operates the programs, 

either directly or through a State agency.

    ``State programs'' also includes State Employment Security 

Agencies, State Employment Service agencies, and/or State unemployment 

compensation agencies.

    Supportive services means services, such as transportation, child 

care, dependent care, housing, and needs-related payments, that are 

necessary to enable an individual to participate in WIA Title I-

financially assisted programs and activities, as consistent with the 

provisions of WIA.

    Terminee means a participant whose participation in the program 

terminates, voluntarily or involuntarily, during the applicable program 

year.

    Title VI means Title VI of the Civil Rights Act of 1964, 42 U.S.C. 

2000d, et seq., as amended, which forbids recipients of Federal 

financial assistance from discriminating on the basis of race, color, 

or national origin.

    Transferee means a person or entity to whom real or personal 

property, or an interest in such property, is transferred.

    Ultimate beneficiary See the definition of ``beneficiary'' in this 

section.

    Undue hardship This term has different meanings, depending upon 

whether it is used with regard to reasonable accommodation of 

individuals with disabilities, or with regard to religious 

accommodation.

    (1) Reasonable accommodation of individuals with disabilities: (i) 

In general, ``undue hardship'' means significant difficulty or expense 

incurred by a recipient, when considered in light of the factors set 

forth in paragraph (ii).

    (ii) Factors to be considered in determining whether an 

accommodation would impose an undue hardship on a recipient include:

    (A) The nature and net cost of the accommodation needed, taking 

into consideration the availability of tax credits and deductions, and/

or outside funding, for the accommodation;

    (B) The overall financial resources of the facility or facilities 

involved in the provision of the reasonable accommodation, including:

    (1) The number of persons aided, benefited, served, or trained by, 

or employed at, the facility or facilities, and

    (2) The effect the accommodation would have on the expenses and 

resources of the facility or facilities;

    (C) The overall financial resources of the recipient, including:

    (1) The overall size of the recipient,



[[ Page 61722]]



    (2) The number of persons aided, benefited, served, trained, or 

employed by the recipient, and

    (3) The number, type and location of the recipient's facilities;

    (D) The type of operation or operations of the recipient, 

including:

    (1) The geographic separateness and administrative or fiscal 

relationship of the facility or facilities in question to the 

recipient, and

    (2) Where the individual is seeking an employment-related 

accommodation, the composition, structure and functions of the 

recipient's workforce; and

    (E) The impact of the accommodation upon the operation of the 

facility or facilities, including:

    (1) The impact on the ability of other participants to receive aid, 

benefits, services, or training, or of other employees to perform their 

duties, and

    (2) The impact on the facility's ability to carry out its mission.

    (2) Religious accommodation For purposes of religious accommodation 

only, ``undue hardship'' means any additional, unusual costs, other 

than de minimis costs, that a particular accommodation would impose 

upon a recipient. See Trans World Airlines, Inc. v. Hardison, 432 U.S. 

63, 81, 84 (1977).

    WIA means the Workforce Investment Act of 1998, Pub. L. 105-220.

    WIA Title I financial assistance See the definition of ``Federal 

financial assistance under Title I of WIA'' in this section.

    WIA Title I-funded program or activity means:

    (1) A program or activity, operated by a recipient and funded, in 

whole or in part, under Title I of WIA, that provides either:

    (i) Any aid, benefits, services, or training to individuals; or

    (ii) Facilities for furnishing any aid, benefits, services, or 

training to individuals;

    (2) Aid, benefits, services, or training provided in facilities 

that are being or were constructed with the aid of Federal financial 

assistance under WIA Title I; or

    (3) Aid, benefits, services, or training provided with the aid of 

any non-WIA Title I funds, property, or other resources that are 

required to be expended or made available in order for the program to 

meet matching requirements or other conditions which must be met in 

order to receive the WIA Title I financial assistance.

    See the definition of ``aid, benefits, services, or training'' in 

this section.





Sec. 37.5  What forms of discrimination are prohibited by this part?



    No individual in the United States may, on the ground of race, 

color, religion, sex, national origin, age, disability, political 

affiliation or belief, and for beneficiaries only, citizenship or 

participation in any WIA Title I--financially assisted program or 

activity, be excluded from participation in, denied the benefits of, 

subjected to discrimination under, or denied employment in the 

administration of or in connection with any WIA Title I--funded program 

or activity.





Sec. 37.6  What specific discriminatory actions, based on prohibited 

grounds other than disability, are prohibited by this part?



    (a) For the purposes of this section, ``prohibited ground'' means 

race, color, religion, sex, national origin, age, political affiliation 

or belief, and for beneficiaries only, citizenship or participation in 

any WIA Title I--financially assisted program or activity.

    (b) A recipient must not, directly or through contractual, 

licensing, or other arrangements, on a prohibited ground:

    (1) Deny an individual any aid, benefits, services, or training 

provided under a WIA Title I--funded program or activity;

    (2) Provide to an individual any aid, benefits, services, or 

training that is different, or is provided in a different manner, from 

that provided to others under a WIA Title I--funded program or 

activity;

    (3) Subject an individual to segregation or separate treatment in 

any matter related to his or her receipt of any aid, benefits, 

services, or training under a WIA Title I--funded program or activity;

    (4) Restrict an individual in any way in the enjoyment of any 

advantage or privilege enjoyed by others receiving any aid, benefits, 

services, or training under a WIA Title I--funded program or activity;

    (5) Treat an individual differently from others in determining 

whether he or she satisfies any admission, enrollment, eligibility, 

membership, or other requirement or condition for any aid, benefits, 

services, or training provided under a WIA Title I--funded program or 

activity;

    (6) Deny or limit an individual with respect to any opportunity to 

participate in a WIA Title I--funded program or activity, or afford him 

or her an opportunity to do so that is different from the opportunity 

afforded others under a WIA Title I--funded program or activity;

    (7) Deny an individual the opportunity to participate as a member 

of a planning or advisory body that is an integral part of the WIA 

Title I--funded program or activity; or

    (8) Otherwise limit on a prohibited ground an individual in 

enjoyment of any right, privilege, advantage, or opportunity enjoyed by 

others receiving any WIA Title I--financially assisted aid, benefits, 

services, or training.

    (c) A recipient must not, directly or through contractual, 

licensing, or other arrangements:

    (1) Aid or perpetuate discrimination by providing significant 

assistance to an agency, organization, or person that discriminates on 

a prohibited ground in providing any aid, benefits, services, or 

training to registrants, applicants or participants in a WIA Title I--

funded program or activity; or

    (2) Refuse to accommodate an individual's religious practices or 

beliefs, unless to do so would result in undue hardship, as defined in 

section 37.4.

    (d) (1) In making any of the determinations listed in paragraph 

(d)(2) of this section, either directly or through contractual, 

licensing, or other arrangements, a recipient must not use standards, 

procedures, criteria, or administrative methods that have any of the 

following purposes or effects:

    (i) Subjecting individuals to discrimination on a prohibited 

ground; or

    (ii) Defeating or substantially impairing, on a prohibited ground, 

accomplishment of the objectives of either:

    (A) The WIA Title I--funded program or activity; or

    (B) the nondiscrimination and equal opportunity provisions of WIA 

or this part.

    (2) The determinations to which this paragraph applies include, but 

are not limited to:

    (i) The types of aid, benefits, services, training, or facilities 

that will be provided under any WIA Title I--funded program or 

activity;

    (ii) The class of individuals to whom such aid, benefits, services, 

training, or facilities will be provided; or

    (iii) The situations in which such aid, benefits, services, 

training, or facilities will be provided.

    (3) Paragraph (d) of this section applies to the administration of 

WIA Title I--funded programs or activities providing aid, benefits, 

services, training, or facilities in any manner, including, but not 

limited to:

    (i) Outreach and recruitment;

    (ii) Registration;

    (iii) Counseling and guidance;

    (iv) Testing;

    (v) Selection, placement, appointment, and referral;



[[ Page 61723]]



    (vi) Training; and

    (vii) Promotion and retention.

    (4) A recipient must not take any of the prohibited actions listed 

in paragraph (d) of this section either directly or through 

contractual, licensing, or other arrangements.

    (e) In determining the site or location of facilities, a grant 

applicant or recipient must not make selections that have any of the 

following purposes or effects:

    (1) On a prohibited ground:

    (i) Excluding individuals from a WIA Title I--financially assisted 

program or activity;

    (ii) Denying them the benefits of such a program or activity; or

    (iii) Subjecting them to discrimination; or

    (2) Defeating or substantially impairing the accomplishment of the 

objectives of either:

    (i) The WIA Title I--financially assisted program or activity; or

    (ii) The nondiscrimination and equal opportunity provisions of WIA 

or this part.

    (f) (1) A recipient must not permit participants to be employed or 

trained in sectarian activities.

    (2) This paragraph applies to any facility that is, or will be, 

primarily used or inherently devoted either:

    (A) For sectarian instruction; or

    (B) As a place of worship,

    (ii) A recipient must not permit participants to be employed or 

trained in any way to:

    (A) Construct any part of such a facility,

    (B) Operate any part of such a facility, or

    (C) Maintain any part of that facility.

    (3) If a facility is not primarily or inherently devoted to 

sectarian instruction or religious worship, a recipient may permit the 

use of WIA Title I funds to employ participants to maintain the 

facility, if the organization that operates the facility is part of a 

program or activity that provides services to participants.

    (g) The exclusion of an individual from programs or activities 

limited by Federal statute or Executive Order to a certain class or 

classes of individuals of which the individual in question is not a 

member is not prohibited by this part.





Sec. 37.7  What specific discriminatory actions based on disability are 

prohibited by this part?



    (a) In providing any aid, benefits, services, or training under a 

WIA Title I--financially assisted program or activity, a recipient must 

not, directly or through contractual, licensing, or other arrangements, 

on the ground of disability:

    (1) Deny a qualified individual with a disability the opportunity 

to participate in or benefit from the aid, benefits, services, or 

training;

    (2) Afford a qualified individual with a disability an opportunity 

to participate in or benefit from the aid, benefits, services, or 

training that is not equal to that afforded others;

    (3) Provide a qualified individual with a disability with an aid, 

benefit, service or training that is not as effective in affording 

equal opportunity to obtain the same result, to gain the same benefit, 

or to reach the same level of achievement as that provided to others;

    (4) Provide different, segregated, or separate aid, benefits, 

services, or training to individuals with disabilities, or to any class 

of individuals with disabilities, unless such action is necessary to 

provide qualified individuals with disabilities with aid, benefits, 

services or training that are as effective as those provided to others;

    (5) Deny a qualified individual with a disability the opportunity 

to participate as a member of planning or advisory boards; or

    (6) Otherwise limit a qualified individual with a disability in 

enjoyment of any right, privilege, advantage, or opportunity enjoyed by 

others receiving any aid, benefit, service or training.

    (b) A recipient must not, directly or through contractual, 

licensing, or other arrangements, aid or perpetuate discrimination 

against qualified individuals with disabilities by providing 

significant assistance to an agency, organization, or person that 

discriminates on the basis of disability in providing any aid, 

benefits, services or training to registrants, applicants, or 

participants.

    (c) A recipient must not deny a qualified individual with a 

disability the opportunity to participate in WIA Title I--financially 

assisted programs or activities despite the existence of permissibly 

separate or different programs or activities.

    (d) A recipient must administer WIA Title I--financially assisted 

programs and activities in the most integrated setting appropriate to 

the needs of qualified individuals with disabilities.

    (e) A recipient must not, directly or through contractual, 

licensing, or other arrangements, use standards, procedures, criteria, 

or administrative methods:

    (1) That have the purpose or effect of subjecting qualified 

individuals with disabilities to discrimination on the ground of 

disability;

    (2) That have the purpose or effect of defeating or substantially 

impairing accomplishment of the objectives of the WIA Title I--

financially assisted program or activity with respect to individuals 

with disabilities; or

    (3) That perpetuate the discrimination of another entity if both 

entities are subject to common administrative control or are agencies 

of the same state.

    (f) In determining the site or location of facilities, a grant 

applicant or recipient must not make selections that have any of the 

following purposes or effects:

    (1) On the basis of disability:

    (i) Excluding qualified individuals from a WIA Title I-financially 

assisted program or activity;

    (ii) Denying them the benefits of such a program or activity; or

    (iii) Subjecting them to discrimination; or

    (2) Defeating or substantially impairing the accomplishment of the 

disability-related objectives of either:

    (i) The WIA Title I-financially assisted program or activity; or

    (ii) The nondiscrimination and equal opportunity provisions of WIA 

or this part.

    (g) A recipient, in the selection of contractors, must not use 

criteria that subject qualified individuals with disabilities to 

discrimination on the basis of disability.

    (h) A recipient must not administer a licensing or certification 

program in a manner that subjects qualified individuals with 

disabilities to discrimination on the basis of disability, nor may a 

recipient establish requirements for the programs or activities of 

licensees or certified entities that subject qualified individuals with 

disabilities to discrimination on the basis of disability. The programs 

or activities of entities that are licensed or certified by a recipient 

are not, themselves, covered by this part.

    (i) A recipient must not impose or apply eligibility criteria that 

screen out or tend to screen out an individual with a disability or any 

class of individuals with disabilities from fully and equally enjoying 

any aid, benefit, service, training, program, or activity, unless such 

criteria can be shown to be necessary for the provision of the aid, 

benefit, service, training, program, or activity being offered.

    (j) Nothing in this part prohibits a recipient from providing aid, 

benefits, services, training, or advantages to individuals with 

disabilities, or to a particular class of individuals with 

disabilities, beyond those required by this part.

    (k) A recipient must not place a surcharge on a particular 

individual



[[ Page 61724]]



with a disability, or any group of individuals with disabilities, to 

cover the costs of measures, such as the provision of auxiliary aids or 

program accessibility, that are required to provide that individual or 

group with the nondiscriminatory treatment required by WIA Title I or 

this part.

    (l) A recipient must not exclude, or otherwise deny equal aid, 

benefits, services, training, programs, or activities to, an individual 

or entity because of the known disability of an individual with whom 

the individual or entity is known to have a relationship or 

association.

    (m) The exclusion of an individual without a disability from the 

benefits of a program limited by Federal statute or Executive Order to 

individuals with disabilities, or the exclusion of a specific class of 

individuals with disabilities from a program limited by Federal statute 

or Executive Order to a different class of individuals with 

disabilities, is not prohibited by this part.

    (n) This part does not require a recipient to provide any of the 

following to individuals with disabilities:

    (1) Personal devices, such as wheelchairs;

    (2) Individually prescribed devices, such as prescription 

eyeglasses or hearing aids;

    (3) Readers for personal use or study; or

    (4) Services of a personal nature, including assistance in eating, 

toileting, or dressing.

    (o)(1) Nothing in this part requires an individual with a 

disability to accept an accommodation, aid, benefit, service, training, 

or opportunity provided under WIA Title I or this part that such 

individual chooses not to accept.

    (2) Nothing in this part authorizes the representative or guardian 

of an individual with a disability to decline food, water, medical 

treatment, or medical services for that individual.





Sec. 37.8  What are a recipient's responsibilities regarding reasonable 

accommodation and reasonable modification for individuals with 

disabilities?



    (a) With regard to aid, benefits, services, training, and 

employment, a recipient must provide reasonable accommodation to 

qualified individuals with disabilities who are applicants, 

registrants, eligible applicants/registrants, participants, employees, 

or applicants for employment, unless providing the accommodation would 

cause undue hardship. See the definitions of ``reasonable 

accommodation'' and ``undue hardship'' in Sec. 37.4 of this part.

    (1) In those circumstances where a recipient believes that the 

proposed accommodation would cause undue hardship, the recipient has 

the burden of proving that the accommodation would result in such 

hardship.

    (2) The recipient must make the decision that the accommodation 

would cause such hardship only after considering all factors listed in 

the definition of ``undue hardship'' in Sec. 37.4. The decision must be 

accompanied by a written statement of the recipient's reasons for 

reaching that conclusion. The recipient must provide a copy of the 

statement of reasons to the individual or individuals who requested the 

accommodation.

    (3) If a requested accommodation would result in undue hardship, 

the recipient must take any other action that would not result in such 

hardship, but would nevertheless ensure that, to the maximum extent 

possible, individuals with disabilities receive the aid, benefits, 

services, training, or employment provided by the recipient.

    (b) A recipient must also make reasonable modifications in 

policies, practices, or procedures when the modifications are necessary 

to avoid discrimination on the basis of disability, unless making the 

modifications would fundamentally alter the nature of the service, 

program, or activity. See the definition of ``fundamental alteration'' 

in Sec. 37.4 of this part.

    (1) In those circumstances where a recipient believes that the 

proposed modification would fundamentally alter the program, activity, 

or service, the recipient has the burden of proving that the 

modification would result in such an alteration.

    (2) The recipient must make the decision that the modification 

would result in such an alteration only after considering all factors 

listed in the definition of ``fundamental alteration'' in Sec. 37.4. 

The decision must be accompanied by a written statement of the 

recipient's reasons for reaching that conclusion. The recipient must 

provide a copy of the statement of reasons to the individual or 

individuals who requested the modification.

    (3) If a modification would result in a fundamental alteration, the 

recipient must take any other action that would not result in such an 

alteration, but would nevertheless ensure that, to the maximum extent 

possible, individuals with disabilities receive the aid, benefits, 

services, training, or employment provided by the recipient.





Sec. 37.9  What are a recipient's responsibilities to communicate with 

individuals with disabilities?



    (a) Recipients must take appropriate steps to ensure that 

communications with beneficiaries, registrants, applicants, eligible 

applicants/registrants, participants, applicants for employment, 

employees, and members of the public who are individuals with 

disabilities, are as effective as communications with others.

    (b) A recipient must furnish appropriate auxiliary aids or services 

where necessary to afford individuals with disabilities an equal 

opportunity to participate in, and enjoy the benefits of, the WIA Title 

I--financially assisted program or activity. In determining what type 

of auxiliary aid or service is appropriate and necessary, such 

recipient must give primary consideration to the requests of the 

individual with a disability.

    (c) Where a recipient communicates by telephone with beneficiaries, 

registrants, applicants, eligible applicants/registrants, participants, 

applicants for employment, and/or employees, the recipient must use 

telecommunications devices for individuals with hearing impairments 

(TDDs/TTYs), or equally effective communications systems, such as 

telephone relay services.

    (d) A recipient must ensure that interested individuals, including 

individuals with visual or hearing impairments, can obtain information 

as to the existence and location of accessible services, activities, 

and facilities.

    (e)(1) A recipient must provide signage at a primary entrance to 

each of its inaccessible facilities, directing users to a location at 

which they can obtain information about accessible facilities. The 

signage provided must meet the most current standards prescribed by the 

General Services Administration under the Architectural Barriers Act at 

41 CFR 101-19.6. Alternative standards for the signage may be adopted 

when it is clearly evident that such alternative standards provide 

equivalent or greater access to the information.

    (2) The international symbol for accessibility must be used at each 

primary entrance of an accessible facility.

    (f) This section does not require a recipient to take any action 

that it can demonstrate would result in a fundamental alteration in the 

nature of a service, program, or activity.

    (1) In those circumstances where a recipient believes that the 

proposed action would fundamentally alter the WIA Title I--financially 

assisted



[[ Page 61725]]



program, activity, or service, the recipient has the burden of proving 

that compliance with this section would result in such an alteration.

    (2) The decision that compliance would result in such an alteration 

must be made by the recipient after considering all resources available 

for use in the funding and operation of the WIA Title I--financially 

assisted program, activity, or service, and must be accompanied by a 

written statement of the reasons for reaching that conclusion.

    (3) If an action required to comply with this section would result 

in the fundamental alteration described in paragraph (f)(1) of this 

section, the recipient must take any other action that would not result 

in such an alteration, but would nevertheless ensure that, to the 

maximum extent possible, individuals with disabilities receive the 

benefits or services provided by the recipient.





Sec. 37.10  To what extent are employment practices covered by this 

part?



    (a) Discrimination on the ground of race, color, religion, sex, 

national origin, age, disability, or political affiliation or belief is 

prohibited in employment practices in the administration of, or in 

connection with:

    (1) Any WIA Title I-financially assisted program or activity; and

    (2) Any program or activity that is part of the One-Stop delivery 

system and is operated by a One-Stop partner listed in Section 121(b) 

of WIA, to the extent that the program or activity is being conducted 

as part of the One-Stop delivery system.

    (b) Employee selection procedures. In implementing this section, a 

recipient must comply with the Uniform Guidelines on Employee Selection 

Procedures, 41 CFR part 60-3.

    (c) Standards for employment-related investigations and reviews. In 

any investigation or compliance review, the Director must consider 

Equal Employment Opportunity Commission (EEOC) regulations, guidance 

and appropriate case law in determining whether a recipient has engaged 

in an unlawful employment practice.

    (d) As provided in Sec. 37.3(b) of this part, 29 CFR part 32, 

subparts B and C and Appendix A, which implement the requirements of 

Section 504 pertaining to employment practices and employment-related 

training, program accessibility, and reasonable accommodation, have 

been incorporated into this part by reference. Therefore, recipients 

must comply with the requirements set forth in those regulatory 

sections as well as the requirements listed in this part.

    (e) Recipients that are also employers, employment agencies, or 

other entities covered by Titles I and II of the ADA should be aware of 

obligations imposed by those titles. See 29 CFR part 1630 and 28 CFR 

part 35.

    (f) Similarly, recipients that are also employers covered by the 

anti-discrimination provision of the Immigration and Nationality Act 

should be aware of the obligations imposed by that provision. See 8 

U.S.C. 1324b, as amended.

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

requirements.





Sec. 37.11  To what extent are intimidation and retaliation prohibited 

by this part?



    (a) A recipient must not discharge, intimidate, retaliate, 

threaten, coerce or discriminate against any individual because the 

individual has:

    (1) Filed a complaint alleging a violation of Section 188 of WIA or 

this part;

    (2) Opposed a practice prohibited by the nondiscrimination and 

equal opportunity provisions of WIA or this part;

    (3) Furnished information to, or assisted or participated in any 

manner in, an investigation, review, hearing, or any other activity 

related to any of the following:

    (i) Administration of the nondiscrimination and equal opportunity 

provisions of WIA or this part;

    (ii) Exercise of authority under those provisions; or

    (iii) Exercise of privilege secured by those provisions; or

    (4) Otherwise exercised any rights and privileges under the 

nondiscrimination and equal opportunity provisions of WIA or this part.

    (b) The sanctions and penalties contained in Section 188(b) of WIA 

or this part may be imposed against any recipient that engages in any 

such retaliation or intimidation, or fails to take appropriate steps to 

prevent such activity.





Sec. 37.12  What Department of Labor office is responsible for 

administering this part?



    The Civil Rights Center (CRC), in the Office of the Assistant 

Secretary for Administration and Management, is responsible for 

administering and enforcing the nondiscrimination and equal opportunity 

provisions of WIA and this part, and for developing and issuing 

policies, standards, guidance, and procedures for effecting compliance.





Sec. 37.13  Who is responsible for providing interpretations of this 

part?



    The Director will make any rulings under, or interpretations of, 

the nondiscrimination and equal opportunity provisions of WIA or this 

part.





Sec. 37.14  Under what circumstances may the Secretary delegate the 

responsibilities of this part?



    (a) The Secretary may from time to time assign to officials of 

other departments or agencies of the Government (with the consent of 

such department or agency) responsibilities in connection with the 

effectuation of the nondiscrimination and equal opportunity provisions 

of WIA and this part (other than responsibility for final decisions 

under Sec. 37.112), including the achievement of effective coordination 

and maximum uniformity within the Department and within the executive 

branch of the Government in the application of the nondiscrimination 

and equal opportunity provisions of WIA or this part to similar 

programs and similar situations.

    (b) Any action taken, determination made, or requirement imposed by 

an official of another department or agency acting under an assignment 

of responsibility under this section has the same effect as if the 

action had been taken by the Director.





Sec. 37.15  What are the Director's responsibilities to coordinate with 

other civil rights agencies?



    (a) Whenever a compliance review or complaint investigation under 

this part reveals possible violation of one or more of the laws listed 

in paragraph (b) of this section, or of any other Federal civil rights 

law, that is not also a violation of the nondiscrimination and equal 

opportunity provisions of WIA or this part, the Director must attempt 

to notify the appropriate agency and provide it with all relevant 

documents and information.

    (b) This section applies to the following:

    (1) Executive Order 11246, as amended;

    (2) Section 503 of the Rehabilitation Act of 1973, as amended (29 

U.S.C. 793);

    (3) The affirmative action provisions of the Vietnam Era Veterans' 

Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212);

    (4) The Equal Pay Act of 1963, as amended (29 U.S.C. 206d);

    (5) Title VII of the Civil Rights Act of 1964, as amended (42 

U.S.C. 2000e et seq.);



[[ Page 61726]]



    (6) The Age Discrimination in Employment Act of 1967, as amended 

(29 U.S.C. 621);

    (7) The Americans with Disabilities Act of 1990, as amended (42 

U.S.C. 12101 et seq.);

    (8) The anti-discrimination provision of the Immigration and 

Nationality Act, as amended (8 U.S.C. 1324b); and

    (9) Any other Federal civil rights law.





Sec. 37.16  What is this part's effect on a recipient's obligations 

under other laws, and what limitations apply?



    (a) Effect of State or local law or other requirements. The 

obligation to comply with the nondiscrimination and equal opportunity 

provisions of WIA or this part are not excused or reduced by any State 

or local law or other requirement that, on a prohibited ground, 

prohibits or limits an individual's eligibility to receive aid, 

benefits, services, or training; to participate in any WIA Title I--

financially assisted program or activity; to be employed by any 

recipient; or to practice any occupation or profession.

    (b) Effect of private organization rules. The obligation to comply 

with the nondiscrimination and equal opportunity provisions of WIA and 

this part is not excused or reduced by any rule or regulation of any 

private organization, club, league or association that, on a prohibited 

ground, prohibits or limits an individual's eligibility to participate 

in any WIA Title I--financially assisted program or activity to which 

this part applies.

    (c) Effect of possible future exclusion from employment 

opportunities. A recipient must not exclude any individual from, or 

restrict any individual's participation in, any program or activity 

based on the recipient's belief or concern that the individual will 

encounter limited future employment opportunities because of his or her 

race, color, religion, sex, national origin, age, disability, political 

affiliation or belief, or citizenship.



Subpart B--Recordkeeping and Other Affirmative Obligations of 

Recipients



Assurances





Sec. 37.20  What is a grant applicant's obligation to provide a written 

assurance?



    (a) (1) Each application for financial assistance under Title I of 

WIA, as defined in Sec. 37.4, must include the following assurance:



    As a condition to the award of financial assistance from the 

Department of Labor under Title I of WIA, the grant applicant 

assures that it will comply fully with the nondiscrimination and 

equal opportunity provisions of the following laws:

    Section 188 of the Workforce Investment Act of 1998 (WIA), which 

prohibits discrimination against all individuals in the United 

States on the basis of race, color, religion, sex, national origin, 

age, disability, political affiliation or belief, and against 

beneficiaries on the basis of either citizenship/status as a 

lawfully admitted immigrant authorized to work in the United States 

or participation in any WIA Title I--financially assisted program or 

activity;

    Title VI of the Civil Rights Act of 1964, as amended, which 

prohibits discrimination on the bases of race, color and national 

origin;

    Section 504 of the Rehabilitation Act of 1973, as amended, which 

prohibits discrimination against qualified individuals with 

disabilities;

    The Age Discrimination Act of 1975, as amended, which prohibits 

discrimination on the basis of age; and

    Title IX of the Education Amendments of 1972, as amended, which 

prohibits discrimination on the basis of sex in educational 

programs.

    The grant applicant also assures that it will comply with 29 CFR 

part 37 and all other regulations implementing the laws listed 

above. This assurance applies to the grant applicant's operation of 

the WIA Title I-financially assisted program or activity, and to all 

agreements the grant applicant makes to carry out the WIA Title I-

financially assisted program or activity. The grant applicant 

understands that the United States has the right to seek judicial 

enforcement of this assurance.



    (2) The assurance is considered incorporated by operation of law in 

the grant, cooperative agreement, contract or other arrangement whereby 

Federal financial assistance under Title I of the WIA is made 

available, whether or not it is physically incorporated in such 

document and whether or not there is a written agreement between the 

Department and the recipient, between the Department and the Governor, 

between the Governor and the recipient, or between recipients. The 

assurance also may be incorporated by reference in such grants, 

cooperative agreements, contracts, or other arrangements.

    (b) Continuing State programs. Each Strategic Five-Year State Plan 

submitted by a State to carry out a continuing WIA Title I-financially 

assisted program or activity must provide a statement that the WIA 

Title I-financially assisted program or activity is (or, in the case of 

a new WIA Title I-financially assisted program or activity, will be) 

conducted in compliance with the nondiscrimination and equal 

opportunity provisions of WIA and this part, as a condition to the 

approval of the Five-Year Plan and the extension of any WIA Title I 

financial assistance under the Plan. The State also must certify that 

it has developed and maintains a Methods of Administration under 

Sec. 37.54.





Sec. 37.21  How long will the recipient's obligation under the 

assurance last, and how broad is the obligation?



    (a) Where the WIA Title I financial assistance is intended to 

provide, or is in the form of, either personal property, real property, 

structures on real property, or interest in any such property or 

structures, the assurance will obligate the recipient, or (in the case 

of a subsequent transfer) the transferee, for the longer of:

    (1) The period during which the property is used either:

    (i) For a purpose for which WIA Title I financial assistance is 

extended; or

    (ii) For another purpose involving the provision of similar 

services or benefits; or

    (2) The period during which either:

    (i) The recipient retains ownership or possession of the property; 

or

    (ii) The transferee retains ownership or possession of the property 

without compensating the Departmental grantmaking agency for the fair 

market value of that ownership or possession.

    (b) In all other cases, the assurance will obligate the recipient 

for the period during which WIA Title I financial assistance is 

extended.





Sec. 37.22  How must covenants be used in connection with this part?



    (a) Where WIA Title I financial assistance is provided in the form 

of a transfer of real property, structures, or improvements on real 

property or structures, or interests in real property or structures, 

the instrument effecting or recording the transfer must contain a 

covenant assuring nondiscrimination and equal opportunity for the 

period described in Sec. 37.21.

    (b) Where no Federal transfer of real property or interest therein 

from the Federal Government is involved, but real property or an 

interest therein is acquired or improved under a program of WIA Title I 

financial assistance, the recipient must include the covenant described 

in paragraph (a) of this section in the instrument effecting or 

recording any subsequent transfer of such property.

    (c) When the property is obtained from the Federal Government, the 

covenant described in paragraph (a) of this section also may include a 

condition coupled with a right of reverter to the Department in the 

event of a breach of the covenant.



Equal Opportunity Officers





Sec. 37.23  Who must designate an Equal Opportunity Officer?



    Every recipient must designate an Equal Opportunity Officer (``EO 

Officer''), except small recipients and



[[ Page 61727]]



service providers, as defined in Sec. 37.4. The responsibilities of 

small recipients and service providers are described in Secs. 37.27 and 

37.28.





Sec. 37.24  Who is eligible to serve as an Equal Opportunity Officer?



    A senior-level employee of the recipient should be appointed as the 

recipient's Equal Opportunity Officer. Depending upon the size of the 

recipient, the size of the recipient's WIA Title I-financially assisted 

programs or activities, and the number of applicants, registrants, and 

participants served by the recipient, the EO Officer may, or may not, 

be assigned other duties. However, he or she must not have other 

responsibilities or activities that create a conflict, or the 

appearance of a conflict, with the responsibilities of an EO Officer.





Sec. 37.25  What are the responsibilities of an Equal Opportunity 

Officer?



    An Equal Opportunity Officer is responsible for coordinating a 

recipient's obligations under this part. Those responsibilities 

include, but are not limited to:

    (a) Serving as the recipient's liaison with CRC;

    (b) Monitoring and investigating the recipient's activities, and 

the activities of the entities that receive WIA Title I funds from the 

recipient, to make sure that the recipient and its subrecipients are 

not violating their nondiscrimination and equal opportunity obligations 

under WIA Title I and this part;

    (c) Reviewing the recipient's written policies to make sure that 

those policies are nondiscriminatory;

    (d) Developing and publishing the recipient's procedures for 

processing discrimination complaints under Secs. 37.76 through 37.79, 

and making sure that those procedures are followed;

    (e) Reporting directly to the appropriate official (including, but 

not limited to, the State WIA Director, Governor's WIA Liaison, Job 

Corps Center Director, SESA Administrator, or LWIA grant recipient) 

about equal opportunity matters;

    (f) Undergoing training (at the recipient's expense) to maintain 

competency, if the Director requires him or her, and/or his or her 

staff, to do so; and

    (g) If applicable, overseeing the development and implementation of 

the recipient's Methods of Administration under Sec. 37.54.





Sec. 37.26  What are a recipient's obligations relating to the Equal 

Opportunity Officer?



    A recipient has the following obligations:

    (a) Making the Equal Opportunity Officer's name, and his or her 

position title, address, and telephone number (voice and TDD/TTY) 

public;

    (b) Ensuring that the EO Officer's identity and contact information 

appears on all internal and external communications about the 

recipient's nondiscrimination and equal opportunity programs;

    (c) Assigning sufficient staff and resources to the Equal 

Opportunity Officer, and providing him or her with the necessary 

support of top management, to ensure compliance with the 

nondiscrimination and equal opportunity provisions of WIA and this 

part; and

    (d) Ensuring that the EO Officer and his/her staff are afforded the 

opportunity to receive the training necessary and appropriate to 

maintain competency.





Sec. 37.27  What are the obligations of small recipients regarding 

Equal Opportunity Officers?



    Although small recipients do not need to designate Equal 

Opportunity Officers who have the full range of responsibilities listed 

above, they must designate an individual who will be responsible for 

developing and publishing of complaint procedures, and the processing 

of complaints, as explained in Secs. 37.76 through 37.79.





Sec. 37.28  What are the obligations of service providers regarding 

Equal Opportunity Officers?



    Service providers, as defined in Sec. 37.4, are not required to 

designate an Equal Opportunity Officer. The obligation for ensuring 

service provider compliance with the nondiscrimination and equal 

opportunity provisions of WIA and this part rests with the Governor or 

LWIA grant recipient, as specified in the State's Methods of 

Administration.



Notice and Communication





Sec. 37.29  What are a recipient's obligations to disseminate its equal 

opportunity policy?



    (a) A recipient must provide initial and continuing notice that it 

does not discriminate on any prohibited ground. This notice must be 

provided to:

    (1) Registrants, applicants, and eligible applicants/registrants;

    (2) Participants;

    (3) Applicants for employment and employees;

    (4) Unions or professional organizations that hold collective 

bargaining or professional agreements with the recipient;

    (5) Subrecipients that receive WIA Title I funds from the 

recipient; and

    (6) Members of the public, including those with impaired vision or 

hearing.

    (b) As provided in Sec. 37.9, the recipient must take appropriate 

steps to ensure that communications with individuals with disabilities 

are as effective as communications with others.





Sec. 37.30  What specific wording must the notice contain?



    The notice must contain the following specific wording:



Equal Opportunity Is the Law



    It is against the law for this recipient of Federal financial 

assistance to discriminate on the following bases:

    Against any individual in the United States, on the basis of 

race, color, religion, sex, national origin, age, disability, 

political affiliation or belief; and

    Against any beneficiary of programs financially assisted under 

Title I of the Workforce Investment Act of 1998 (WIA), on the basis 

of the beneficiary's citizenship/status as a lawfully admitted 

immigrant authorized to work in the United States, or his or her 

participation in any WIA Title I-financially assisted program or 

activity.

    The recipient must not discriminate in any of the following 

areas:

    Deciding who will be admitted, or have access, to any WIA Title 

I-financially assisted program or activity;

    Providing opportunities in, or treating any person with regard 

to, such a program or activity; or

    Making employment decisions in the administration of, or in 

connection with, such a program or activity.



What to Do If You Believe You Have Experienced Discrimination



    If you think that you have been subjected to discrimination 

under a WIA Title I-financially assisted program or

    Activity, you may file a complaint within 180 days from the date of 

the alleged violation with either:

    The recipient's Equal Opportunity Officer (or the person whom 

the recipient has designated for this purpose); or

    The Director, Civil Rights Center (CRC), U.S. Department of 

Labor, 200 Constitution Avenue NW, Room N-4123, Washington, DC 

20210.

    If you file your complaint with the recipient, you must wait 

either until the recipient issues a written Notice of Final Action, 

or until 90 days have passed (whichever is sooner), before filing 

with the Civil Rights Center (see address above).

    If the recipient does not give you a written Notice of Final 

Action within 90 days of the day on which you filed your complaint, 

you do not have to wait for the recipient to issue that Notice 

before filing a complaint with CRC. However, you must file your CRC 

complaint within 30 days of the 90-day deadline (in other words, 

within 120 days after the day on which you filed your complaint with 

the recipient).

    If the recipient does give you a written Notice of Final Action 

on your complaint,



[[ Page 61728]]



but you are dissatisfied with the decision or resolution, you may 

file a complaint with CRC. You must file your CRC complaint within 

30 days of the date on which you received the Notice of Final 

Action.





Sec. 37.31  Where must the notice required by Secs. 37.29 and 37.30 be 

published?



    (a) At a minimum, the notice required by Secs. 37.29 and 37.30 must 

be:

    (1) Posted prominently, in reasonable numbers and places;

    (2) Disseminated in internal memoranda and other written or 

electronic communications;

    (3) Included in handbooks or manuals; and

    (4) Made available to each participant, and made part of each 

participant's file.

    (b) The notice must be provided in appropriate formats to 

individuals with visual impairments. Where notice has been given in an 

alternate format to a participant with a visual impairment, a record 

that such notice has been given must be made a part of the 

participant's file.





Sec. 37.32  When must the notice required by Secs. 37.29 and 37.30 be 

provided?



    The notice required by Secs. 37.29 and 37.30 must be initially 

provided within 90 days of the effective date of this part, or of the 

date this part first applies to the recipient, whichever comes later.





Sec. 37.33  Who is responsible for meeting the notice requirement with 

respect to service providers?



    The Governor or the LWIA grant recipient, as determined by the 

Governor and as provided in that State's Methods of Administration, 

will be responsible for meeting the notice requirement provided in 

Sections 37.29 and 37.30 with respect to a State's service providers.





Sec. 37.34  What type of notice must a recipient include in 

publications, broadcasts, and other communications?



    (a) Recipients must indicate that the WIA Title I-financially 

assisted program or activity in question is an ``equal opportunity 

employer/program,'' and that ``auxiliary aids and services are 

available upon request to individuals with disabilities,'' in 

recruitment brochures and other materials that are ordinarily 

distributed or communicated in written and/or oral form, electronically 

and/or on paper, to staff, clients, or the public at large, to describe 

programs financially assisted under Title I of WIA or the requirements 

for participation by recipients and participants. Where such materials 

indicate that the recipient may be reached by telephone, the materials 

must state the telephone number of the TDD/TTY or relay service used by 

the recipient, as required by Sec. 37.9(c).

    (b) Recipients that publish or broadcast program information in the 

news media must ensure that such publications and broadcasts state that 

the WIA Title I-financially assisted program or activity in question is 

an equal opportunity employer/program (or otherwise indicate that 

discrimination in the WIA Title I-financially assisted program or 

activity is prohibited by Federal law), and indicate that auxiliary 

aids and services are available upon request to individuals with 

disabilities.

    (c) A recipient must not communicate any information that suggests, 

by text or illustration, that the recipient treats beneficiaries, 

registrants, applicants, participants, employees or applicants for 

employment differently on any prohibited ground specified in Sec. 37.5, 

except as such treatment is otherwise permitted under Federal law or 

this part.





Sec. 37.35  What are a recipient's responsibilities to provide services 

and information in languages other than English?



    (a) A significant number or proportion of the population eligible 

to be served, or likely to be directly affected, by a WIA Title I-

financially assisted program or activity may need services or 

information in a language other than English in order to be effectively 

informed about, or able to participate in, the program or activity. 

Where such a significant number or proportion exists, a recipient must 

take the following actions:

    (1) Consider:

    (i) The scope of the program or activity, and

    (ii) The size and concentration of the population that needs 

services or information in a language other than English; and

    (2) Based on those considerations, take reasonable steps to provide 

services and information in appropriate languages. This information 

must include the initial and continuing notice required under 

Secs. 37.29 and 37.30, and all information that is communicated under 

Sec. 37.34.

    (b) In circumstances other than those described in paragraph (a) of 

this section, a recipient should nonetheless make reasonable efforts to 

meet the particularized language needs of limited-English-speaking 

individuals who seek services or information from the recipient.





Sec. 37.36  What responsibilities does a recipient have to communicate 

information during orientations?



    During each presentation to orient new participants, new employees, 

and/or the general public to its WIA Title I-financially assisted 

program or activity, a recipient must include a discussion of rights 

under the nondiscrimination and equal opportunity provisions of WIA and 

this part, including the right to file a complaint of discrimination 

with the recipient or the Director.



Data and Information Collection and Maintenance





Sec. 37.37  What are a recipient's responsibilities to collect and 

maintain data and other information?



    (a) The Director will not require submission of data that can be 

obtained from existing reporting requirements or sources, including 

those of other agencies, if the source is known and available to the 

Director.

    (b)(1) Each recipient must collect such data and maintain such 

records, in accordance with procedures prescribed by the Director, as 

the Director finds necessary to determine whether the recipient has 

complied or is complying with the nondiscrimination and equal 

opportunity provisions of WIA or this part. The system and format in 

which the records and data are kept must be designed to allow the 

Governor and CRC to conduct statistical or other quantifiable data 

analyses to verify the recipient's compliance with section 188 of WIA 

and this part.

    (2) Such records must include, but are not limited to, records on 

applicants, registrants, eligible applicants/registrants, participants, 

terminees, employees, and applicants for employment. Each recipient 

must record the race/ethnicity, sex, age, and where known, disability 

status, of every applicant, registrant, eligible applicant/registrant, 

participant, terminee, applicant for employment, and employee. Such 

information must be stored in a manner that ensures confidentiality, 

and must be used only for the purposes of recordkeeping and reporting; 

determining eligibility, where appropriate, for WIA Title I-financially 

assisted programs or activities; determining the extent to which the 

recipient is operating its WIA Title I-financially assisted program or 

activity in a nondiscriminatory manner; or other use authorized by law.

    (c) Each recipient must maintain, and submit to CRC upon request, a 

log of complaints filed with it that allege discrimination on the 

ground(s) of race, color, religion, sex, national origin, age, 

disability, political affiliation or belief,



[[ Page 61729]]



citizenship, and/or participation in a WIA Title I-financially assisted 

program or activity. The log must include: the name and address of the 

complainant; the ground of the complaint; a description of the 

complaint; the date the complaint was filed; the disposition and date 

of disposition of the complaint; and other pertinent information. 

Information that could lead to identification of a particular 

individual as having filed a complaint must be kept confidential.

    (d) Where designation of individuals by race or ethnicity is 

required, the guidelines of the Office of Management and Budget must be 

used.

    (e) A service provider's responsibility for collecting and 

maintaining the information required under this section may be assumed 

by the Governor or LWIA grant recipient, as provided in the State's 

Methods of Administration.





Sec. 37.38  What information must grant applicants and recipients 

provide to CRC?



    In addition to the information which must be collected, maintained, 

and, upon request, submitted to CRC under Sec. 37.37:

    (a) Each grant applicant and recipient must promptly notify the 

Director when any administrative enforcement actions or lawsuits are 

filed against it alleging discrimination on the ground of race, color, 

religion, sex, national origin, age, disability, political affiliation 

or belief, and for beneficiaries only, citizenship or participation in 

a WIA Title I-financially assisted program or activity. This 

notification must include:

    (1) The names of the parties to the action or lawsuit;

    (2) The forum in which each case was filed; and

    (3) The relevant case numbers.

    (b) Each grant applicant (as part of its application) and recipient 

(as part of a compliance review conducted under Section 37.63, or 

monitoring activity carried out under Sec. 37.65) must provide the 

following information:

    (1) The name of any other Federal agency that conducted a civil 

rights compliance review or complaint investigation, and that found the 

grant applicant or recipient to be in noncompliance, during the two 

years before the grant application was filed or CRC began its 

examination; and

    (2) Information about any administrative enforcement actions or 

lawsuits that alleged discrimination on any protected basis, and that 

were filed against the grant applicant or recipient during the two 

years before the application or renewal application, compliance review, 

or monitoring activity. This information must include:

    (i) The names of the parties;

    (ii) The forum in which each case was filed; and

    (iii) The relevant case numbers.

    (c) At the discretion of the Director, grant applicants and 

recipients may be required to provide, in a timely manner, any 

information and data necessary to investigate complaints and conduct 

compliance reviews on grounds prohibited under the nondiscrimination 

and equal opportunity provisions of WIA and this part.

    (d) At the discretion of the Director, recipients may be required 

to provide, in a timely manner, the particularized information and/or 

to submit the periodic reports that the Director considers necessary to 

determine compliance with the nondiscrimination and equal opportunity 

provisions of WIA or this part.

    (e) At the discretion of the Director, grant applicants may be 

required to submit, in a timely manner, the particularized information 

necessary to determine whether or not the grant applicant, if 

financially assisted, would be able to comply with the 

nondiscrimination and equal opportunity provisions of WIA or this part.

    (f) Where designation of individuals by race or ethnicity is 

required, the guidelines of the Office of Management and Budget must be 

used.





Sec. 37.39  How long must grant applicants and recipients maintain the 

records required under this part?



    (a) Each recipient must maintain the following records for a period 

of not less than three years from the close of the applicable program 

year:

    (1) The records of applicants, registrants, eligible applicants/

registrants, participants, terminees, employees, and applicants for 

employment; and

    (2) Such other records as are required under this part or by the 

Director.

    (b) Records regarding complaints and actions taken on the 

complaints must be maintained for a period of not less than three years 

from the date of resolution of the complaint.





Sec. 37.40  What access to sources of information must grant applicants 

and recipients provide the Director?



    (a) Each grant applicant and recipient must permit access by the 

Director during normal business hours to its premises and to its 

employees and participants, to the extent that such individuals are on 

the premises during the course of the investigation, for the purpose of 

conducting complaint investigations, compliance reviews, monitoring 

activities associated with a State's development and implementation of 

a Methods of Administration, and inspecting and copying such books, 

records, accounts and other materials as may be pertinent to ascertain 

compliance with and ensure enforcement of the nondiscrimination and 

equal opportunity provisions of WIA or this part.

    (b) Asserted considerations of privacy or confidentiality are not a 

basis for withholding information from CRC and will not bar CRC from 

evaluating or seeking to enforce compliance with the nondiscrimination 

and equal opportunity provisions of WIA and this part.

    (c) Whenever any information that the Director asks a grant 

applicant or recipient to provide is in the exclusive possession of 

another agency, institution, or person, and that agency, institution, 

or person fails or refuses to furnish the information upon request, the 

grant applicant or recipient must certify to CRC that it has made 

efforts to obtain the information and that the agency, institution, or 

person has failed or refused to provide it. This certification must 

list the name and address of the agency, institution, or person that 

has possession of the information and the specific efforts the grant 

applicant or recipient made to obtain it.





Sec. 37.41  What responsibilities do grant applicants, recipients, and 

the Department have to maintain the confidentiality of the information 

collected?



    The identity of any individual who furnishes information relating 

to, or assisting in, an investigation or a compliance review, including 

the identity of any individual who files a complaint, must be kept 

confidential to the extent possible, consistent with a fair 

determination of the issues. An individual whose identity it is 

necessary to disclose must be protected from retaliation (see 

Sec. 37.11).





Sec. 37.42  What are a recipient's responsibilities under this part to 

provide universal access to WIA Title I-financially assisted programs 

and activities?



    Recipients must take appropriate steps to ensure that they are 

providing universal access to their WIA Title I-financially assisted 

programs and activities. These steps should involve reasonable efforts 

to include members of both sexes, various racial and ethnic groups, 

individuals with disabilities, and individuals in differing age groups. 

Such efforts may include, but are not limited to:

    (a) Advertising the recipient's programs and/or activities in 

media,



[[ Page 61730]]



such as newspapers or radio programs, that specifically target various 

populations;

    (b) Sending notices about openings in the recipient's programs and/

or activities to schools or community service groups that serve various 

populations; and

    (c) Consulting with appropriate community service groups about ways 

in which the recipient may improve its outreach and service to various 

populations.



Subpart C--Governor's Responsibilities to Implement the 

Nondiscrimination and Equal Opportunity Requirements of WIA





Sec. 37.50  To whom does this subpart apply?



    This subpart applies to State Programs as defined in Sec. 37.4. 

However, the provisions of Sec. 37.52(b) do not apply to State 

Employment Security Agencies (SESAs), because the Governor's liability 

for any noncompliance on the part of a SESA cannot be waived.





Sec. 37.51  What are a Governor's oversight responsibilities?



    The Governor is responsible for oversight of all WIA Title I-

financially assisted State programs. This responsibility includes 

ensuring compliance with the nondiscrimination and equal opportunity 

provisions of WIA and this part, and negotiating, where appropriate, 

with a recipient to secure voluntary compliance when noncompliance is 

found under Sec. 37.95(b).





Sec. 37.52  To what extent may a Governor be liable for the actions of 

a recipient he or she has financially assisted under WIA Title I?



    (a) The Governor and the recipient are jointly and severally liable 

for all violations of the nondiscrimination and equal opportunity 

provisions of WIA and this part by the recipient, unless the Governor 

has:

    (1) Established and adhered to a Methods of Administration, under 

Section 37.54, designed to give reasonable guarantee of the recipient's 

compliance with such provisions;

    (2) Entered into a written contract with the recipient that clearly 

establishes the recipient's obligations regarding nondiscrimination and 

equal opportunity;

    (3) Acted with due diligence to monitor the recipient's compliance 

with these provisions; and

    (4) Taken prompt and appropriate corrective action to effect 

compliance.

    (b) If the Director determines that the Governor has demonstrated 

substantial compliance with the requirements of paragraph (a) of this 

section, he or she may recommend to the Secretary that the imposition 

of sanctions against the Governor be waived and that sanctions be 

imposed only against the noncomplying recipient.





Sec. 37.53  What are a Governor's oversight responsibilities regarding 

recipients' recordkeeping?



    The Governor must ensure that recipients collect and maintain 

records in a manner consistent with the provisions of Sec. 37.37 and 

any procedures prescribed by the Director under Sec. 37.37(b). The 

Governor must further ensure that recipients are able to provide data 

and reports in the manner prescribed by the Director.





Sec. 37.54  What are a Governor's obligations to develop and maintain a 

Methods of Administration?



    (a) (1) Each Governor must establish and adhere to a Methods of 

Administration for State programs as defined in Sec. 37.4. In those 

States in which one agency contains both SESA or unemployment insurance 

and WIA Title I-financially assisted programs, the Governor should 

develop a combined Methods of Administration.

    (2) Each Methods of Administration must be designed to give a 

reasonable guarantee that all recipients will comply, and are 

complying, with the nondiscrimination and equal opportunity provisions 

of WIA and this part.

    (b) The Methods of Administration must be:

    (1) In writing, addressing each requirement of Sec. 37.54(d) with 

narrative and documentation;

    (2) Reviewed and updated as required in Sec. 37.55; and

    (3) Signed by the Governor.

    (c) [Reserved]

    (d) At a minimum, each Methods of Administration must:

    (1) Describe how the State programs and recipients have satisfied 

the requirements of the following regulations:

    (i) Sections 37.20 through 37.22 (assurances);

    (ii) Sections 37.23 through 37.28 (Equal Opportunity Officers);

    (iii) Sections 37.29 through 37.36 (Notice and Communication);

    (iv) Sections 37.37 through 37.41 (Data and Information Collection 

and Maintenance);

    (v) Section 37.42 (Universal Access);

    (vi) Section 37.53 (Governor's Oversight Responsibilities Regarding 

Recipients' Recordkeeping); and

    (vii) Sections 37.76 through 37.79 (Complaint Processing 

Procedures); and

    (2) Include the following additional elements:

    (i) A system for determining whether a grant applicant, if 

financially assisted, and/or a training provider, if selected as 

eligible under section 122 of the Act, is likely to conduct its WIA 

Title I--financially assisted programs or activities in a 

nondiscriminatory way, and to comply with the regulations in this part;

    (ii) A system for periodically monitoring the compliance of 

recipients with WIA section 188 and this part, including a 

determination as to whether each recipient is conducting its WIA Title 

I--financially assisted program or activity in a nondiscriminatory way. 

At a minimum, each periodic monitoring review required by this 

paragraph must include:

    (A) A statistical or other quantifiable analysis of records and 

data kept by the recipient under Sec. 37.37, including analyses by 

race/ethnicity, sex, age, and disability status;

    (B) An investigation of any significant differences identified in 

paragraph (A) of this section in participation in the programs, 

activities, or employment provided by the recipient, to determine 

whether these differences appear to be caused by discrimination. This 

investigation must be conducted through review of the recipient's 

records and any other appropriate means; and

    (C) An assessment to determine whether the recipient has fulfilled 

its administrative obligations under section 188 or this part (for 

example, recordkeeping, notice and communication) and any duties 

assigned to it under the MOA;

    (iii) A review of recipient policy issuances to ensure they are 

nondiscriminatory;

    (iv) A system for reviewing recipients' job training plans, 

contracts, assurances, and other similar agreements to ensure that they 

are both nondiscriminatory and contain the required language regarding 

nondiscrimination and equal opportunity;

    (v) Procedures for ensuring that recipients comply with the 

requirements of Section 504 and this part with regard to individuals 

with disabilities;

    (vi) A system of policy communication and training to ensure that 

EO Officers and members of the recipients' staffs who have been 

assigned responsibilities under the nondiscrimination and equal 

opportunity provisions of WIA or this part are aware of and can 

effectively carry out these responsibilities;

    (vii) Procedures for obtaining prompt corrective action or, as 

necessary, applying sanctions when noncompliance is found; and



[[ Page 61731]]



    (viii) Supporting documentation to show that the commitments made 

in the Methods of Administration have been and/or are being carried 

out. This supporting documentation includes, but is not limited to:

    (A) policy and procedural issuances concerning required elements of 

the Methods of Administration;

    (B) copies of monitoring instruments and instructions;

    (C) evidence of the extent to which nondiscrimination and equal 

opportunity policies have been developed and communicated as required 

by this part;

    (D) information reflecting the extent to which Equal Opportunity 

training, including training called for by Secs. 37.25(f) and 37.26(c), 

is planned and/or has been carried out;

    (E) reports of monitoring reviews and reports of follow-up actions 

taken under those reviews where violations have been found, including, 

where appropriate, sanctions; and

    (F) copies of any notices made under Secs. 37.29 through 37.36.





Sec. 37.55  When must the Governor carry out his or her obligations 

with regard to the Methods of Administration?



    (a) Within 180 days of either the date on which this interim final 

rule is effective, or the date on which the Department gives final 

approval to a State's Five-Year Plan, whichever is later, a Governor 

must:

    (1) Develop and implement a Methods of Administration consistent 

with the requirements of this part, and

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

    (b) The Governor must promptly update the Methods of Administration 

whenever necessary, and must notify the Director in writing at the time 

that any such updates are made.

    (c) Every two years from the date on which the initial MOA is 

submitted to the Director under Sec. 37.55(a)(2), the Governor must 

review the Methods of Administration and the manner in which it has 

been implemented, and determine whether any changes are necessary in 

order for the State to comply fully and effectively with the 

nondiscrimination and equal opportunity provisions of WIA and this 

part.

    (1) If any such changes are necessary, the Governor must make the 

appropriate changes and submit them, in writing, to the Director.

    (2) If the Governor determines that no such changes are necessary, 

s/he must certify, in writing, to the Director that the Methods of 

Administration previously submitted continues in effect.



Subpart D--Compliance Procedures





Sec. 37.60  How does the Director evaluate compliance with the 

nondiscrimination and equal opportunity provisions of WIA and this 

part?



    From time to time, the Director may conduct pre-approval compliance 

reviews of grant applicants for, and post-approval compliance reviews 

of recipients of, WIA Title I financial assistance, to determine 

compliance with the nondiscrimination and equal opportunity provisions 

of WIA and this part. Reviews may focus on one or more specific 

programs or activities, or one or more issues within a program or 

activity. The Director may also investigate and resolve complaints 

alleging violations of the nondiscrimination and equal opportunity 

provisions of WIA and this part.





Sec. 37.61  Is there authority to issue subpoenas?



    Yes, section 183(c) of WIA authorizes the issuance of subpoenas. A 

subpoena may direct the individual named on the subpoena to take the 

following actions:

    (a) To appear:

    (1) Before a designated CRC representative,

    (2) At a designated time and place;

    (b) To give testimony; and/or

    (c) To produce documentary evidence.



The subpoena may require the appearance of witnesses, and the 

production of documents, from any place in the United States, at any 

designated time and place.



Compliance Reviews





Sec. 37.62  What are the authority and procedures for conducting pre-

approval compliance reviews?



    (a) As appropriate and necessary to ensure compliance with the 

nondiscrimination and equal opportunity provisions of WIA or this part, 

the Director may review any application, or class of applications, for 

Federal financial assistance under Title I of WIA, before and as a 

condition of their approval. The basis for such review may be the 

assurance specified in Sec. 37.20, information and reports submitted by 

the grant applicant under this part or guidance published by the 

Director, and any relevant records on file with the Department.

    (b) Where the Director determines that the grant applicant for 

Federal financial assistance under WIA Title I, if financially 

assisted, might not comply with the nondiscrimination and equal 

opportunity requirements of WIA or this part, the Director must:

    (1) Notify, in a timely manner, the Departmental grantmaking agency 

and the Assistant Attorney General of the findings of the pre-approval 

compliance review; and

    (2) Issue a Letter of Findings. The Letter of Findings must advise 

the grant applicant, in writing, of:

    (i) The preliminary findings of the review;

    (ii) The proposed remedial or corrective action under Section 37.94 

and the time within which the remedial or corrective action should be 

completed;

    (iii) Whether it will be necessary for the grant applicant to enter 

into a written Conciliation Agreement as described in Secs. 37.95 and 

37.97; and

    (iv) The opportunity to engage in voluntary compliance 

negotiations.

    (c) If a grant applicant has agreed to certain remedial or 

corrective actions in order to receive WIA Title I-funded Federal 

financial assistance, the Department must ensure that the remedial or 

corrective actions have been taken, or that a Conciliation Agreement 

has been entered into, before approving the award of further assistance 

under WIA Title I. If a grant applicant refuses or fails to take 

remedial or corrective actions or to enter into a Conciliation 

Agreement, as applicable, the Director must follow the procedures 

outlined in Secs. 37.98 through 37.100.





Sec. 37.63  What are the authority and procedures for conducting post-

approval compliance reviews?



    (a) The Director may initiate a post-approval compliance review of 

any recipient to determine compliance with the nondiscrimination and 

equal opportunity provisions of WIA and this part. The initiation of a 

post-approval review may be based on, but need not be limited to, the 

results of routine program monitoring by other Departmental or Federal 

agencies, or the nature or frequency of complaints.

    (b) A post-approval review must be initiated by a Notification 

Letter, advising the recipient of:

    (1) The practices to be reviewed;

    (2) The programs to be reviewed;

    (3) The information, records, and/or data to be submitted by the 

recipient within 30 days of the receipt of the Notification Letter, 

unless this time frame is modified by the Director; and

    (4) The opportunity, at any time before receipt of the Final 

Determination described in Secs. 37.99 and 37.100, to make a 

documentary or other submission that explains, validates or otherwise 

addresses the practices under review.



[[ Page 61732]]



    (c) The Director may conduct post-approval reviews using such 

techniques as desk audits and on-site reviews.





Sec. 37.64  What procedures must the Director follow when CRC has 

completed a post-approval compliance review?



    (a) Where, as the result of a post-approval review, the Director 

has made a finding of noncompliance, he or she must issue a Letter of 

Findings. This Letter must advise the recipient, in writing, of:

    (1) The preliminary findings of the review;

    (2) Where appropriate, the proposed remedial or corrective action 

to be taken, and the time by which such action should be completed, as 

provided in Sec. 37.94;

    (3) Whether it will be necessary for the recipient to enter into a 

written assurance and/or Conciliation Agreement, as provided in 

Secs. 37.96 and 37.97; and

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

    (b) Where no violation is found, the recipient must be so informed 

in writing.





Sec. 37.65  What is the Director's authority to monitor the activities 

of a Governor?



    (a) The Director may periodically review the adequacy of the 

Methods of Administration established by a Governor, as well as the 

adequacy of the Governor's performance under the Methods of 

Administration, to determine compliance with the requirements of 

Secs. 37.50 through 37.55. The Director may review the Methods of 

Administration during a compliance review under Secs. 37.62 and 37.63, 

or at another time.

    (b) Nothing in this subpart limits or precludes the Director from 

monitoring directly any WIA Title I recipient or from investigating any 

matter necessary to determine a recipient's compliance with the 

nondiscrimination and equal opportunity provisions of WIA or this part.





Sec. 37.66  What happens if a recipient fails to submit requested data, 

records, and/or information, or fails to provide CRC with the required 

access?



    The Director may issue a Notice to Show Cause to a recipient 

failing to comply with the requirements of this part, where such 

failure results in the inability of the Director to make a finding. 

Such a failure includes, but is not limited to, the recipient's failure 

or refusal to:

    (a) Submit requested information, records, and/or data within 30 

days of receiving a Notification Letter;

    (b) Submit, in a timely manner, information, records, and/or data 

requested during a compliance review, complaint investigation, or other 

action to determine a recipient's compliance with the nondiscrimination 

and equal opportunity provisions of WIA or this part; or

    (c) Provide CRC access in a timely manner to a recipient's 

premises, records, or employees during a compliance review, as required 

in Sec. 37.40.





Sec. 37.67  What information must a Notice to Show Cause contain?



    (a) A Notice to Show Cause must contain:

    (1) A description of the violation and a citation to the pertinent 

nondiscrimination or equal opportunity provision(s) of WIA and this 

part;

    (2) The corrective action necessary to achieve compliance or, as 

may be appropriate, the concepts and principles of acceptable 

corrective or remedial action and the results anticipated; and

    (3) A request for a written response to the findings, including 

commitments to corrective action or the presentation of opposing facts 

and evidence.

    (b) A Notice to Show Cause must give the recipient 30 days to show 

cause why enforcement proceedings under the nondiscrimination and equal 

opportunity provisions of WIA or this part should not be instituted.





Sec. 37.68  How may a recipient show cause why enforcement proceedings 

should not be instituted?



    A recipient may show cause why enforcement proceedings should not 

be instituted by, among other means:

    (a) Correcting the violation(s) that brought about the Notice to 

Show Cause and entering into a written assurance and/or entering into a 

Conciliation Agreement, as appropriate, under Secs. 37.95 through 

37.97;

    (b) Demonstrating that CRC does not have jurisdiction; or

    (c) Demonstrating that the violation alleged by CRC did not occur.





Sec. 37.69  What happens if a recipient fails to show cause?



    If the recipient fails to show cause why enforcement proceedings 

should not be initiated, the Director must follow the enforcement 

procedures outlined in Secs. 37.99 and 37.100.



Complaint Processing Procedures





Sec. 37.70  Who may file a complaint concerning discrimination 

connected with WIA Title I?



    Any person who believes that either he or she, or any specific 

class of individuals, has been or is being subjected to discrimination 

prohibited by WIA or this part, may file a written complaint, either by 

him/herself or through a representative.





Sec. 37.71  Where may a complaint be filed?



    A complainant may file a complaint with either the recipient or the 

Director. Complaints filed with the Director should be sent to the 

address listed in the notice in Sec. 37.30.





Sec. 37.72  When must a complaint be filed?



    Generally, a complaint must be filed within 180 days of the alleged 

discrimination. However, for good cause shown, the Director may extend 

the filing time. The time period for filing is for the administrative 

convenience of CRC, and does not create a defense for the respondent.





Sec. 37.73  What information must a complaint contain?



    Each complaint must be filed in writing, and must contain the 

following information:

    (a) The complainant's name and address (or another means of 

contacting the complainant);

    (b) The identity of the respondent (the individual or entity that 

the complainant alleges is responsible for the discrimination);

    (c) A description of the complainant's allegations. This 

description must include enough detail to allow the Director or the 

recipient, as applicable, to decide whether:

    (i) CRC or the recipient, as applicable, has jurisdiction over the 

complaint;

    (ii) The complaint was filed in time; and

    (iii) The complaint has apparent merit; in other words, whether the 

complainant's allegations, if true, would violate any of the 

nondiscrimination and equal opportunity provisions of WIA or this part; 

and

    (d) The complainant's signature or the signature of the 

complainant's authorized representative.





Sec. 37.74  Are there any forms that a complainant may use to file a 

complaint?



    Yes. A complainant may file a complaint by completing and 

submitting CRC's Complaint Information and Privacy Act Consent Forms, 

which may be obtained either from the recipient's EO Officer, or from 

CRC at the address listed in the notice contained in Sec. 37.30.





Sec. 37.75  Is there a right of representation in the complaint 

process?



    Yes. Both the complainant and the respondent have the right to be 

represented by an attorney or other individual of their choice.



[[ Page 61733]]



Sec. 37.76  What are the required elements of a recipient's 

discrimination complaint processing procedures?



    (a) The procedures that a recipient adopts and publishes must 

provide that the recipient will issue a written Notice of Final Action 

on discrimination complaints within 90 days of the date on which the 

complaint is filed.

    (b) At a minimum, the procedures must include the following 

elements:

    (1) Initial, written notice to the complainant that contains the 

following information:

    (i) An acknowledgment that the recipient has received the 

complaint, and

    (ii) Notice that the complainant has the right to be represented in 

the complaint process;

    (2) A written statement of the issue(s), provided to the 

complainant, that includes the following information:

    (i) A list of the issues raised in the complaint, and

    (ii) For each such issue, a statement whether the recipient will 

accept the issue for investigation or reject the issue, and the reasons 

for each rejection;

    (3) A period for fact-finding or investigation of the circumstances 

underlying the complaint;

    (4) A period during which the recipient attempts to resolve the 

complaint. The methods available to resolve the complaint must include 

alternative dispute resolution (ADR), as described in paragraph (c) of 

this section

    (5) A written Notice of Final Action, provided to the complainant 

within 90 days of the date on which the complaint was filed, that 

contains the following information:

    (i) For each issue raised in the complaint, a statement of either:

    (A) The recipient's decision on the issue and an explanation of the 

reasons underlying the decision, or

    (B) A description of the way the parties resolved the issue; and

    (ii) Notice that the complainant has a right to file a complaint 

with CRC within 30 days of the date on which the Notice of Final Action 

is issued if he or she is dissatisfied with the recipient's final 

action on the complaint.

    (c) The procedures the recipient adopts must provide for 

alternative dispute resolution (ADR). The recipient's ADR procedures 

must provide that:

    (1) The choice whether to use ADR or the customary process rests 

with the complainant;

    (2) A party to any agreement reached under ADR may file a complaint 

with the Director in the event the agreement is breached. In such 

circumstances, the following rules will apply:

    (i) The non-breaching party may file a complaint with the Director 

within 30 days of the date on which the non-breaching party learns of 

the alleged breach;

    (ii) The Director must evaluate the circumstances to determine 

whether the agreement has been breached. If he or she determines that 

the agreement has been breached, the complainant may file a complaint 

with CRC based upon his/her original allegation(s), and the Director 

will waive the time deadline for filing such a complaint.

    (3) If the parties do not reach an agreement under ADR, the 

complainant may file a complaint with the Director as described in 

Secs. 37.71 through 37.74.





Sec. 37.77  Who is responsible for developing and publishing complaint 

processing procedures for service providers?



    The Governor or the LWIA grant recipient, as provided in the 

State's Methods of Administration, must develop and publish, on behalf 

of its service providers, the complaint processing procedures required 

in Sec. 37.76. The service providers must then follow those procedures.





Sec. 37.78  Does a recipient have any special obligations in cases in 

which the recipient determines that it has no jurisdiction over a 

complaint?



    Yes. If a recipient determines that it does not have jurisdiction 

over a complaint, it must notify the complainant, in writing, 

immediately. This Notice of Lack of Jurisdiction must include:

    (a) A statement of the reasons for that determination, and

    (b) Notice that the complainant has a right to file a complaint 

with CRC within 30 days of the date on which the complainant receives 

the Notice.





Sec. 37.79  If, before the 90-day period has expired, a recipient 

issues a Notice of Final Action with which the complainant is 

dissatisfied, how long does the complainant have to file a complaint 

with the Director?



    If, during the 90-day period, the recipient issues its Notice of 

Final Action, but the complainant is dissatisfied with the recipient's 

decision on the complaint, the complainant or his/her representative 

may file a complaint with the Director within 30 days after the date on 

which the complainant receives the Notice.





Sec. 37.80  What happens if a recipient fails to issue a Notice of 

Final Action within 90 days of the date on which a complaint was filed?



    If, by the end of 90 days from the date on which the complainant 

filed the complaint, the recipient has failed to issue a Notice of 

Final Action, the complainant or his/her representative may file a 

complaint with the Director within 30 days of the expiration of the 90-

day period. In other words, the complaint must be filed with the 

Director within 120 days of the date on which the complaint was filed 

with the recipient.





Sec. 37.81  Are there any circumstances under which the Director may 

extend the time limit for filing a complaint with him or her?



    Yes. The Director may extend the 30-day time limit:

    (a) If the recipient does not include in its Notice of Final Action 

the required notice about the complainant's right to file with the 

Director, as described in Sec. 37.76(b)(5)(ii); or

    (b) For other good cause shown.

    The complainant has the burden of proving to the Director that the 

time limit should be extended.





Sec. 37.82  Does the Director accept every complaint for resolution?



    No. The Director must determine whether CRC will accept a 

particular complaint for resolution. For example, a complaint need not 

be accepted if:

    (a) It has not been timely filed;

    (b) CRC has no jurisdiction over the complaint; or

    (c) CRC has previously decided the matter.





Sec. 37.83  What happens if a complaint does not contain enough 

information?



    (a) If a complaint does not contain enough information, the 

Director must try to get the needed information from the complainant.

    (b) The Director may close the complainant's file, without 

prejudice, if:

    (1) The Director makes reasonable efforts to try to find the 

complainant, but is unable to reach him or her; or

    (2) The complainant does not provide the needed information to CRC 

within the time specified in the request for more information.

    (c) If the Director closes the complainant's file, he or she must 

send written notice to the complainant's last known address.





Sec. 37.84  What happens if CRC does not have jurisdiction over a 

complaint?



    If CRC does not have jurisdiction over a complaint, the Director 

must:

    (a) Notify the complainant and explain why the complaint falls 

outside the coverage of the nondiscrimination and equal opportunity 

provisions of WIA or this part; and

    (b) Where possible, transfer the complaint to an appropriate 

Federal, State or local authority.



[[ Page 61734]]



Sec. 37.85  Are there any other circumstances in which the Director 

will send a complaint to another authority?



    Yes. The Director refers complaints to other agencies in the 

following circumstances:

    (a) Where the complaint alleges discrimination based on age, and 

the complaint falls within the jurisdiction of the Age Discrimination 

Act of 1975, as amended, then the Director must refer the complaint, in 

accordance with the provisions of 45 CFR 90.43(c)(3).

    (b) Where the only allegation in the complaint is a charge of 

individual employment discrimination that is covered both by WIA or 

this part and by one or more of the laws listed below, then the 

complaint is a ``joint complaint,'' and the Director may refer it to 

the EEOC for investigation and conciliation under the procedures 

described in 29 CFR part 1640 or 1691, as appropriate. The relevant 

laws are:

    (1) Title VII of the Civil Rights Act of 1964, as amended (42 

U.S.C. 2000e to 2000e-17);

    (2) The Equal Pay Act of 1963, as amended (29 U.S.C. 206(d));

    (3) The Age Discrimination in Employment Act of 1976, as amended 

(29 U.S.C. 621, et seq.); and

    (4) Title I of the Americans with Disabilities Act of 1990, as 

amended (42 U.S.C. 12101 et seq.).

    (c) Where the complaint alleges discrimination by an entity that 

operates a program or activity financially assisted by a Federal 

grantmaking agency other than the Department, but that participates as 

a partner in a One-Stop delivery system, the following procedures 

apply:

    (1) Where the complaint alleges discrimination on a basis that is 

prohibited both by Section 188 of WIA and by a civil rights law 

enforced by the Federal grantmaking agency, then CRC and the 

grantmaking agency have dual jurisdiction over the complaint, and the 

Director will refer the complaint to the grantmaking agency for 

processing. In such circumstances, the grantmaking agency's regulations 

will govern the processing of the complaint.

    (2) Where the complaint alleges discrimination on a basis that is 

prohibited by Section 188 of WIA, but not by any civil rights laws 

enforced by the Federal grantmaking agency, then CRC has sole 

jurisdiction over the complaint, and will retain the complaint and 

process it pursuant to this part. Such bases generally include 

religion, political affiliation or belief, citizenship, and/or 

participation in a WIA Title I-financially assisted program or 

activity.

    (d) Where the Director makes a referral under this section, he or 

she must notify the complainant and the respondent about the referral.





Sec. 37.86  What must the Director do if he or she determines that a 

complaint will not be accepted?



    If a complaint will not be accepted, the Director must notify the 

complainant, in writing, about that fact, and provide the complainant 

his/her reasons for making that determination.





Sec. 37.87  What must the Director do if he or she determines that a 

complaint will be accepted?



    If the Director accepts the complaint for resolution, he or she 

must notify the complainant, the respondent, and the grantmaking 

agency. The notice must:

    (a) State that the complaint will be accepted,

    (b) Identify the issues over which CRC has accepted jurisdiction; 

and

    (c) Explain the reasons why any issues were rejected.





Sec. 37.88  Who may contact CRC about a complaint?



    Both the complainant and the respondent, or their authorized 

representatives, may contact CRC for information about the complaint. 

The Director will determine what information, if any, about the 

complaint will be released.





Sec. 37.89  May the Director offer the parties to a complaint the 

option of mediation?



    Yes. The Director may offer the parties to a complaint the option 

of mediating the complaint. In such circumstances, the following rules 

apply:

    (a) Mediation is voluntary; the parties must consent before the 

mediation process will proceed.

    (b) The mediation will be conducted under guidance issued by the 

Director.

    (c) If the parties are unable to reach resolution of the complaint 

through mediation, CRC will investigate and process the complaint under 

Secs. 37.82 through 37.88 of this part.



Determinations





Sec. 37.90  If a complaint is investigated, what must the Director do 

when the investigation is completed?



    At the conclusion of the investigation of the complaint, the 

Director must take the following actions:

    (a) Determine whether there is reasonable cause to believe that the 

respondent has violated the nondiscrimination and equal opportunity 

provisions of WIA or this part; and

    (b) Notify the complainant, the respondent, and the grantmaking 

agency, in writing, of that determination.





Sec. 37.91  What notice must the Director issue if he or she finds 

reasonable cause to believe that a violation has taken place?



    If the Director finds reasonable cause to believe that the 

respondent has violated the nondiscrimination and equal opportunity 

provisions of WIA or this part, he or she must issue an Initial 

Determination. The Initial Determination must include:

    (a) The specific findings of the investigation;

    (b) The corrective or remedial action that the Department proposes 

to the respondent, under Sec. 37.94;

    (c) The time by which the respondent must complete the corrective 

or remedial action;

    (d) Whether it will be necessary for the respondent to enter into a 

written agreement under Sec. 37.95 and 37.96; and

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





Sec. 37.92  What notice must the Director issue if he or she finds no 

reasonable cause to believe that a violation has taken place?



    If the Director determines that there is no reasonable cause to 

believe that a violation has taken place, he or she must issue a Final 

Determination under Sec. 37.100. The Final Determination represents the 

Department's final agency action on the complaint.





Sec. 37.93  What happens if the Director finds that a violation has 

taken place, and the recipient fails or refuses to take the corrective 

action listed in the Initial Determination?



    Under such circumstances, the Department must take the actions 

described in Sec. 37.99 of this part.





Sec. 37.94  What corrective or remedial actions may be imposed where, 

after a compliance review or complaint investigation, the Director 

finds a violation of the nondiscrimination and equal opportunity 

provisions of WIA or this part?



    (a) A Letter of Findings, Notice to Show Cause, or Initial 

Determination, issued under Secs. 37.62 or 37.63, 37.66 and 37.67, or 

37.91 respectively, must include the specific steps the grant applicant 

or recipient, as applicable, must take within a stated period of time 

in order to achieve voluntary compliance.

    (b) Such steps must include:

    (1) Actions to end and/or redress the violation of the 

nondiscrimination and equal opportunity provisions of WIA or this part;

    (2) Make whole relief where discrimination has been identified, 

including, as appropriate, back pay (which must not accrue from a date 

more than 2 years before the filing of the complaint or the initiation 

of a



[[ Page 61735]]



compliance review) or other monetary relief; hire or reinstatement; 

retroactive seniority; promotion; benefits or other services 

discriminatorily denied; and

    (3) Such other remedial or affirmative relief as the Director deems 

necessary, including but not limited to outreach, recruitment and 

training designed to ensure equal opportunity.

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





Sec. 37.95  What procedures apply if the Director finds that a 

recipient has violated the nondiscrimination and equal opportunity 

provisions of WIA or this part?



    (a) Violations at State level. Where the Director has determined 

that a violation of the nondiscrimination and equal opportunity 

provisions of WIA or this part has occurred at the State level, he or 

she must notify the Governor through the issuance of a Letter of 

Findings, Notice to Show Cause or Initial Determination, as 

appropriate, under Sec. 37.62 or 37.63, 37.66 and 37.67, or 37.91, 

respectively. The Director may secure compliance with the 

nondiscrimination and equal opportunity provisions of WIA and this part 

through, among other means, the execution of a written assurance and/or 

Conciliation Agreement, under paragraph (d) of this section.

    (b) Violations below State level. Where the Director has determined 

that a violation of the nondiscrimination and equal opportunity 

provisions of WIA or this part has occurred below the State level, the 

Director must so notify the Governor and the violating recipient(s) 

through the issuance of a Letter of Findings, Notice to Show Cause or 

Initial Determination, as appropriate, under Secs. 37.62 or 37.63, 

37.66 and 37.67, or 37.91, respectively.

    (1) Such issuance must:

    (i) Direct the Governor to initiate negotiations immediately with 

the violating recipient(s) to secure compliance by voluntary means;

    (ii) Direct the Governor to complete such negotiations within 30 

days of the Governor's receipt of the Notice to Show Cause or within 45 

days of the Governor's receipt of the Letter of Findings or Initial 

Determination, as applicable. The Director reserves the right to enter 

into negotiations with the recipient at any time during the period. For 

good cause shown, the Director may approve an extension of time to 

secure voluntary compliance. The total time allotted to secure 

voluntary compliance must not exceed 60 days.

    (iii) Include a determination as to whether compliance must be 

achieved by:

    (A) Immediate correction of the violation(s) and written assurance 

that such violations have been corrected, under Sec. 37.96;

    (B) Entering into a written Conciliation Agreement under 

Sec. 37.97; or

    (C) Both.

    (2) If the Governor determines, at any time during the period 

described in paragraph (b)(1)(ii) of this section, that a recipient's 

compliance cannot be achieved by voluntary means, the Governor must so 

notify the Director.

    (3) If the Governor is able to secure voluntary compliance under 

paragraph (b)(1) of this section, he or she must submit to the Director 

for approval, as applicable:

    (i) Written assurance that the required action has been taken, as 

described in Sec. 37.96;

    (ii) A copy of the Conciliation Agreement, as described in 

Sec. 37.97; or

    (iii) Both.

    (4) The Director may disapprove any written assurance or 

Conciliation Agreement submitted for approval under paragraph (b)(3) of 

this section that fails to satisfy each of the applicable requirements 

provided in Secs. 37.96 or 37.97.

    (c) Violations in National Programs. Where the Director has 

determined that a violation of the nondiscrimination and equal 

opportunity provisions of WIA or this part has occurred in a National 

Program, he or she must notify the Federal grantmaking agency and the 

recipient by issuing a Letter of Findings, Notice to Show Cause, or 

Initial Determination, as appropriate, under Secs. 37.62 or 37.63, 

37.66 and 37.67, or 37.91, respectively. The Director may secure 

compliance with the nondiscrimination and equal opportunity provisions 

of WIA and this part through, among other means, the execution of a 

written assurance and/or Conciliation Agreement under Secs. 37.96 or 

37.97, as applicable.





Sec. 37.96  What are the required elements of a written assurance?



    A written assurance must provide documentation that the violations 

listed in the Letter of Findings, Notice to Show Cause or Initial 

Determination, as applicable, have been corrected.





Sec. 37.97  What are the required elements of a Conciliation Agreement?



    A Conciliation Agreement must:

    (a) Be in writing;

    (b) Address each cited violation;

    (c) Specify the corrective or remedial action to be taken within a 

stated period of time to come into compliance;

    (d) Provide for periodic reporting on the status of the corrective 

and remedial action;

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

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





Sec. 37.98  When will the Director conclude that compliance cannot be 

secured by voluntary means?



    The Director will conclude that compliance cannot be secured by 

voluntary means under the following circumstances:

    (a) The grant applicant or recipient fails or refuses to correct 

the violation(s) within the time period established by the Letter of 

Findings, Notice to Show Cause or Initial Determination; or

    (b) The Director has not approved an extension of time for 

agreement on voluntary compliance, under Sec. 37.95(b)(1)(ii), and he 

or she either:

    (1) Has not been notified, under Sec. 37.95(b)(3), that the grant 

applicant or recipient has agreed to voluntary compliance;

    (2) Has disapproved a written assurance or Conciliation Agreement, 

under Sec. 37.95(b)(4); or

    (3) Has received notice from the Governor, under Sec. 37.95(b)(2), 

that the grant applicant or recipient will not comply voluntarily.





Sec. 37.99  If the Director concludes that compliance cannot be secured 

by voluntary means, what actions must he or she take?



    If the Director concludes that compliance cannot be secured by 

voluntary means, he or she must either:

    (a) Issue a Final Determination;

    (b) Refer the matter to the Attorney General with a recommendation 

that an appropriate civil action be instituted; or

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





Sec. 37.100  What information must a Final Determination contain?



    A Final Determination must contain the following information:

    (a) A statement of the efforts made to achieve voluntary 

compliance, and a statement that those efforts have been unsuccessful;

    (b) A statement of those matters upon which the grant applicant or 

recipient and CRC continue to disagree;

    (c) A list of any modifications to the findings of fact or 

conclusions that were set forth in the Initial Determination, Notice to 

Show Cause or Letter of Findings;

    (d) A statement of the grant applicant's or recipient's liability, 

and, if appropriate, the extent of that liability;

    (e) A description of the corrective or remedial actions that the 

grant applicant or recipient must take to come into compliance;



[[ Page 61736]]



    (f) A notice that if the grant applicant or recipient fails to come 

into compliance within 10 days of the date on which it receives the 

Final Determination, one or more of the following consequences may 

result:

    (1) After the grant applicant or recipient is given the opportunity 

for a hearing, its WIA Title I funds may be terminated, discontinued, 

or withheld in whole or in part, or its application for such funds may 

be denied, as appropriate;

    (2) The Secretary of Labor may refer the case to the Department of 

Justice with a request to file suit against the grant applicant or 

recipient; or

    (3) the Secretary may take any other action against the grant 

applicant or recipient that is provided by law;

    (g) A notice of the grant applicant's or recipient's right to 

request a hearing under the procedures described in Secs. 37.112 

through 37.115; and

    (h) A determination of the Governor's liability, if any, under 

Sec. 37.52.





Sec. 37.101  Whom must the Director notify of a finding of 

noncompliance?



    Where a compliance review or complaint investigation results in a 

finding of noncompliance, the Director must notify:

    (a) The grant applicant or recipient;

    (b) The grantmaking agency; and

    (c) Tthe Assistant Attorney General.



Breaches of Conciliation Agreements





Sec. 37.102  What happens if a grant applicant or recipient breaches a 

Conciliation Agreement?



    When it becomes known to the Director that a Conciliation Agreement 

has been breached, the Director may issue a Notification of Breach of 

Conciliation Agreement.





Sec. 37.103  Whom must the Director notify about a breach of a 

Conciliation Agreement?



    The Director must send a Notification of Breach of Conciliation 

Agreement to the Governor, the grantmaking agency, and/or other 

party(ies) to the Conciliation Agreement, as applicable.





Sec. 37.104  What information must a Notification of Breach of 

Conciliation Agreement contain?



    A Notification of Breach of Conciliation Agreement must:

    (a) Specify any efforts made to achieve voluntary compliance, and 

indicate that those efforts have been unsuccessful;

    (b) Identify the specific provisions of the Conciliation Agreement 

violated;

    (c) Determine liability for the violation and the extent of the 

liability;

    (d) Indicate that failure of the violating party to come into 

compliance within 10 days of the receipt of the Notification of Breach 

of Conciliation Agreement may result, after opportunity for a hearing, 

in the termination or denial of the grant, or discontinuation of 

assistance, as appropriate, or in referral to the Department of Justice 

with a request from the Department to file suit;

    (e) Advise the violating party of the right to request a hearing, 

and reference the applicable procedures in Section 37.111; and

    (f) Include a determination as to the Governor's liability, if any, 

in accordance with the provisions of Sec. 37.52.





Sec. 37.105  Whom must the Director notify if enforcement action under 

a Notification of Breach of Conciliation Agreement is commenced?



    In such circumstances, the Director must notify:

    (a) The grantmaking agency; and

    (b) The Governor, recipient or grant applicant, as applicable.



Subpart E--Federal Procedures For Effecting Compliance





Sec. 37.110  What enforcement procedures does the Department follow to 

effect compliance with the nondiscrimination and equal opportunity 

provisions of WIA and this part?



    (a) Sanctions; judicial enforcement. If compliance has not been 

achieved after issuance of a Final Determination under Secs. 37.99 and 

37.100, or a Notification of Breach of Conciliation Agreement under 

Secs. 37.102 through 37.105, the Secretary may:

    (1) After opportunity for a hearing, suspend, terminate, deny or 

discontinue the WIA Title I financial assistance, in whole or in part;

    (2) Refer the matter to the Attorney General with a recommendation 

that an appropriate civil action be instituted; or

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

    (b) Deferral of new grants. When proceedings under Sec. 37.111 have 

been initiated against a particular recipient, the Department may defer 

action on that recipient's applications for new WIA Title I financial 

assistance until a Final Decision under Sec. 37.112 has been rendered. 

Deferral is not appropriate when WIA Title I financial assistance is 

due and payable under a previously approved application.

    (1) New WIA Title I financial assistance includes all assistance 

for which an application or approval, including renewal or continuation 

of existing activities, or authorization of new activities, is required 

during the deferral period.

    (2) New WIA Title I financial assistance does not include 

assistance approved before the beginning of proceedings under 

Sec. 37.111, or increases in funding as a result of changed 

computations of formula awards.





Sec. 37.111  What hearing procedures does the Department follow?



    (a) Notice of opportunity for hearing. As part of a Final 

Determination, or a Notification of Breach of a Conciliation Agreement, 

the Director must include, and serve on the grant applicant or 

recipient (by certified mail, return receipt requested), a notice of 

opportunity for hearing.

    (b) Complaint; request for hearing; answer. (1) In the case of 

noncompliance that cannot be voluntarily resolved, the Final 

Determination or Notification of Breach of Conciliation Agreement is 

considered the Department's formal complaint.

    (2) To request a hearing, the grant applicant or recipient must 

file a written answer to the Final Determination or Notification of 

Breach of Conciliation Agreement, and a copy of the Final Determination 

or Notification of Breach of Conciliation Agreement, with the Office of 

the Administrative Law Judges, 800 K Street N.W., Suite 400, 

Washington, DC 20001.

    (i) The answer must be filed within 30 days of the date of receipt 

of the Final Determination or Notification of Breach of Conciliation 

Agreement.

    (ii) A request for hearing must be set forth in a separate 

paragraph of the answer.

    (iii) The answer must specifically admit or deny each finding of 

fact in the Final Determination or Notification of Breach of 

Conciliation Agreement. Where the grant applicant or recipient does not 

have knowledge or information sufficient to form a belief, the answer 

may so state and the statement will have the effect of a denial. 

Findings of fact not denied are considered admitted. The answer must 

separately state and identify matters alleged as affirmative defenses, 

and must also set forth the matters of fact and law relied on by the 

grant applicant or recipient.

    (3) The grant applicant or recipient must simultaneously serve a 

copy of its filing on the Office of the Solicitor, Civil Rights 

Division, Room N-2464, U.S. Department of Labor, 200 Constitution 

Avenue N.W., Washington DC 20210.

    (4) (i) The failure of a grant applicant or recipient to request a 

hearing under this paragraph, or to appear at a hearing for which a 

date has been set, waives the right to a hearing; and

    (ii) Whenever a hearing is waived, all allegations of fact 

contained in the Final Determination or Notification of Breach of 

Conciliation Agreement are



[[ Page 61737]]



considered admitted, and the Final Determination or Notification of 

Breach of Conciliation Agreement becomes the Final Decision of the 

Secretary as of the day following the last date by which the grant 

applicant or recipient was required to request a hearing or was to 

appear at a hearing. See Sec. 37.112(b)(3).

    (c) Time and place of hearing. Hearings will be held at a time and 

place ordered by the Administrative Law Judge upon reasonable notice to 

all parties and, as appropriate, the complainant. In selecting a place 

for the hearing, due regard must be given to the convenience of the 

parties, their counsel, and witnesses, if any.

    (d) Judicial process; evidence. (1) The Administrative Law Judge 

may use judicial process to secure the attendance of witnesses and the 

production of documents authorized by Section 9 of the Federal Trade 

Commission Act (15 U.S.C. 49).

    (2) Evidence. In any hearing or administrative review conducted 

under this part, evidentiary matters will be governed by the standards 

and principles set forth in the Uniform Rules of Evidence issued by the 

Department of Labor's Office of Administrative Law Judges, 29 CFR part 

18.





Sec. 37.112  What procedures for initial and final decisions does the 

Department follow?



    (a) Initial Decision. After the hearing, the Administrative Law 

Judge must issue an initial decision and order, containing findings of 

fact and conclusions of law. The initial decision and order must be 

served on all parties by certified mail, return receipt requested.

    (b) Exceptions; Final Decision. (1) Final decision after a hearing. 

The initial decision and order becomes the Final Decision and Order of 

the Secretary unless exceptions are filed by a party or, in the absence 

of exceptions, the Secretary serves notice that he or she will review 

the decision.

    (i) A party dissatisfied with the initial decision and order may, 

within 45 days of receipt, file with the Secretary and serve on the 

other parties to the proceedings and on the Administrative Law Judge, 

exceptions to the initial decision and order or any part thereof.

    (ii) Upon receipt of exceptions, the Administrative Law Judge must 

index and forward the record and the initial decision and order to the 

Secretary within three days of such receipt.

    (iii) A party filing exceptions must specifically identify the 

finding or conclusion to which exception is taken. Any exception not 

specifically urged is waived.

    (iv) Within 45 days of the date of filing such exceptions, a reply, 

which must be limited to the scope of the exceptions, may be filed and 

served by any other party to the proceeding.

    (v) Requests for extensions for the filing of exceptions or replies 

must be received by the Secretary no later than 3 days before the 

exceptions or replies are due.

    (vi) If no exceptions are filed, the Secretary may, within 30 days 

of the expiration of the time for filing exceptions, on his or her own 

motion serve notice on the parties that the Secretary will review the 

decision.

    (vii) Final Decision and Order.

    (A) Where exceptions have been filed, the initial decision and 

order of the Administrative Law Judge becomes the Final Decision and 

Order of the Secretary unless the Secretary, within 30 days of the 

expiration of the time for filing exceptions and replies, has notified 

the parties that the case is accepted for review.

    (B) Where exceptions have not been filed, the initial decision and 

order of the Administrative Law Judge becomes the Final Decision and 

Order of the Secretary unless the Secretary has served notice on the 

parties that he or she will review the decision, as provided in 

paragraph (b)(1)(vi) of this section.

    (viii) Any case reviewed by the Secretary under this paragraph must 

be decided within 180 days of the notification of such review. If the 

Secretary fails to issue a Final Decision and Order within the 180-day 

period, the initial decision and order of the Administrative Law Judge 

becomes the Final Decision and Order of the Secretary.

    (2) Final Decision where a hearing is waived.

    (i) If, after issuance of a Final Determination under Sec. 37.100 

or Notification of Breach of Conciliation Agreement under Sec. 37.104, 

voluntary compliance has not been achieved within the time set by this 

part and the opportunity for a hearing has been waived as provided for 

in Sec. 37.111(b)(4), the Final Determination or Notification of Breach 

of Conciliation Agreement becomes the Final Decision of the Secretary.

    (ii) When a Final Determination or Notification of Breach of 

Conciliation Agreement becomes the Final Decision of the Secretary, the 

Secretary may, within 45 days, issue an order terminating or denying 

the grant or continuation of assistance or imposing other appropriate 

sanctions for the grant applicant or recipient's failure to comply with 

the required corrective and/or remedial actions, or referring the 

matter to the Attorney General for further enforcement action.

    (3) Final agency action. A Final Decision and Order issued under 

Sec. 37.112(b) constitutes final agency action.





Sec. 37.113  What procedure does the Department follow to suspend, 

terminate, withhold, deny or discontinue WIA Title I financial 

assistance?



    Any action to suspend, terminate, deny or discontinue WIA Title I 

financial assistance must be limited to the particular political 

entity, or part thereof, or other recipient (or grant applicant) as to 

which the finding has been made, and must be limited in its effect to 

the particular program, or part thereof, in which the noncompliance has 

been found. No order suspending, terminating, denying or discontinuing 

WIA Title I financial assistance will become effective until:

    (a) The Director has issued a Final Determination under Sec. 37.100 

or Notification of Breach of Conciliation Agreement under Sec. 37.104;

    (b) There has been an express finding on the record, after 

opportunity for a hearing, of failure by the grant applicant or 

recipient to comply with a requirement imposed by or under the 

nondiscrimination and equal opportunity provisions of WIA or this part;

    (c) A Final Decision has been issued by the Secretary, the 

Administrative Law Judge's decision and order has become the Final 

Decision of the Secretary, or the Final Determination or Notification 

of Conciliation Agreement has been deemed the Final Decision of the 

Secretary, under Sec. 37.112(b); and

    (d) The expiration of 30 days after the Secretary has filed, with 

the committees of Congress having legislative jurisdiction over the 

program involved, a full written report of the circumstances and 

grounds for such action.





Sec. 37.114  What procedure does the Department follow to distribute 

WIA Title I financial assistance to an alternate recipient?



    When the Department withholds funds from a recipient or grant 

applicant under these regulations, the Secretary may disburse the 

withheld funds directly to an alternate recipient. In such case, the 

Secretary will require any alternate recipient to demonstrate:

    (a) The ability to comply with these regulations; and

    (b) The ability to achieve the goals of the nondiscrimination and 

equal opportunity provisions of WIA.



[[ Page 61738]]



Sec. 37.115  What procedures does the Department follow for post-

termination proceedings?



    (a) A grant applicant or recipient adversely affected by a Final 

Decision and Order issued under Sec. 37.112(b) will be restored, where 

appropriate, to full eligibility to receive WIA Title I financial 

assistance if the grant applicant or recipient satisfies the terms and 

conditions of the Final Decision and Order and brings itself into 

compliance with the nondiscrimination and equal opportunity provisions 

of WIA and this part.

    (b) A grant applicant or recipient adversely affected by a Final 

Decision and Order issued under Sec. 37.112(b) may at any time petition 

the Director to restore its eligibility to receive WIA Title I 

financial assistance. A copy of the petition must be served on the 

parties to the original proceeding that led to the Final Decision and 

Order. The petition must be supported by information showing the 

actions taken by the grant applicant or recipient to bring itself into 

compliance. The grant applicant or recipient has the burden of 

demonstrating that it has satisfied the requirements of paragraph (a) 

of this section. While proceedings under this section are pending, 

sanctions imposed by the Final Decision and Order under Sec. 37.112(b) 

(1) and (2) must remain in effect.

    (c) The Director must issue a written decision on the petition for 

restoration.

    (1) If the Director determines that the grant applicant or 

recipient has not brought itself into compliance, he or she must issue 

a decision denying the petition.

    (2) Within 30 days of its receipt of the Director's decision, the 

recipient or grant applicant may file a petition for review of the 

decision by the Secretary, setting forth the grounds for its objection 

to the Director's decision.

    (3) The petition must be served on the Director and on the Office 

of the Solicitor, Civil Rights Division.

    (4) The Director may file a response to the petition within 14 

days.

    (5) The Secretary must issue the final agency decision denying or 

granting the recipient's or grant applicant's request for restoration 

to eligibility.



[FR Doc. 99-28202 Filed 11-10-99; 8:45 am]

BILLING CODE 4510-23-P 

Reference to 65 FR 51984-51990 (AUGUST 25, 2000)




[[Page 51984]]



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DEPARTMENT OF LABOR



Office of the Secretary



State Guidance for Developing Methods of Administration (MOA) 

Required by Regulations Implementing Section 188 of the Workforce 

Investment Act of 1998 (WIA)



AGENCY: Office of the Secretary.



ACTION: Notice.



-----------------------------------------------------------------------



SUMMARY: The purpose of this notice is to provide interested parties 

with the final approved Guidance for use by States in submitting their 

Methods of Administration as required by 29 CFR part 37. That part 

implements the nondiscrimination and equal opportunity provisions of 

the Workforce Investment Act of 1998.



FOR FURTHER INFORMATION CONTACT: Ms. Annabelle T. Lockhart, Director, 

Civil Rights Center, U.S. Department of Labor, 200 Constitution Ave., 

N.W., Room N-4123 FPB, Washington, DC 20210, telephone number (202) 

219-8927 (voice)(this is not a toll-free number), or (800) 326-2577 

(TTY/TDD).



SUPPLEMENTARY INFORMATION: The Workforce Investment Act of 1998 (WIA), 

Public Law 105-220 (August 7, 1998), provides the framework for a 

reformed national workforce preparation and employment system designed 

to meet the needs of the nation's employers, its job seekers, and those 

who want to further their careers. While WIA makes many programmatic 

changes in the workforce development system authorized under the Job 

Training Partnership Act of 1982 (JTPA), one constant has been the 

prohibition against discrimination. The nondiscrimination and equal 

opportunity provisions of JTPA (section 167) prohibit discrimination 

against applicants, beneficiaries and employees on the bases of race, 

color, national origin, age, disability, sex, religion, and political 

affiliation or belief. Further, section 167 prohibits discrimination 

against beneficiaries on the bases of citizenship and participation in 

JTPA. The nondiscrimination and equal opportunity provisions of WIA 

(section 188) prohibit discrimination against applicants, beneficiaries 

and employees on the same bases.

    Methods of Administration (MOA), designed to assure the Secretary 

of Labor that State programs financially assisted by the Department 

operate in a nondiscriminatory manner, have been required of States 

since 1984. This requirement was codified when, on January 15, 1993, 

the Department of Labor issued 29 CFR part 34, the regulations that 

implement section 167 of JTPA. (See 29 CFR 34.33.)

    Section 188(e) of WIA requires the Secretary to issue regulations 

implementing section 188. An interim final rule implementing that 

section was published on November 12, 1999, at 29 CFR part 37. As with 

part 34, part 37 includes the requirement that States develop, 

implement and maintain, for each of their State programs, an MOA. (See 

29 CFR 37.54 and 37.55.) The MOA standards contained in part 37 are 

substantially the same as those contained in part 34. States that have 

faithfully implemented and maintained their MOAs under JTPA will find 

that the time and effort needed to update their MOA to meet WIA 

requirements will be minimal.



    Signed at Washington, D. C., this 21st day of August, 2000.

Alexis M. Herman,

Secretary of Labor.



ATTACHMENT: State Guidance for Developing Methods of Administration 

(MOA) Required by Regulations Implementing Section 188 of the 

Workforce Investment Act of 1998 (WIA)



OMB Control No. 1225-0077

Expires January 31, 2003



    The regulations that implement the nondiscrimination and equal 

opportunity provisions of the Workforce Investment Act of 1998 (WIA), 

published at 29 CFR part 37, require that each Governor establish and 

adhere to a Methods of Administration (MOA) for his/her State programs. 

This document provides Guidance for Governors and States in meeting the 

regulatory requirements regarding MOAs.

    An MOA is a document that describes the actions an individual State 

will take to ensure that its WIA Title I-financially assisted programs, 

activities, and recipients are complying, and will continue to comply, 

with the nondiscrimination and equal opportunity requirements of WIA 

and its implementing regulations. States were first required to prepare 

and submit MOAs in 1984, under the Job Training Partnership Act (JTPA). 

The requirement was continued in 1993, under the regulations 

implementing the nondiscrimination and equal opportunity provisions of 

JTPA. The JTPA MOA requirements were set forth in 29 CFR 34.33. The 

form and content of the MOAs required under 29 CFR part 37 remain 

substantially the same as those of the MOAs required under JTPA.

    Title 29 CFR 37.54(a) provides that each Governor must establish 

and maintain an MOA for State programs. 29 CFR 37.54(d) describes the 

required elements of an MOA. Finally, 29 CFR 37.55 addresses 

requirements related to submitting and updating the MOA.

    By submitting an MOA, the Governor agrees to fully follow its 

provisions. Failure to do so may result in a finding of noncompliance. 

See 29 CFR 37.65(a).

    This Guidance specifically discusses the requirements of 29 CFR 

37.54(b) and 37.55, and is intended to explain, not to add to, the 

requirements contained in those regulatory provisions. The Guidance is 

based upon materials the Civil Rights Center (CRC) prepared in 1993 to 

train Equal Opportunity (EO) Officers regarding the requirements of 

MOAs under JTPA. This Guidance does not create new legal requirements 

or change current legal requirements. Instead, it reflects the view of 

CRC and is intended to serve as a basic resource document on CRC-

administered laws. The legal requirements related to nondiscrimination 

and equal opportunity that apply to recipients of financial assistance 

under WIA are contained in the statutes and regulations cited in this 

Guidance. Every effort has been made to ensure that the information 

contained in the Guidance is accurate and up to date.



I. Guidance on Meeting the Requirements of 29 CFR 37.54(b) Section 

37.54(b) Requires That Each MOA Shall be:



{time}  In writing, addressing each requirement of 29 CFR 37.54(d) with 

narrative and documentation;

{time}  Reviewed and updated as required by 29 CFR 37.55; and

{time}  Signed by the Governor.

    The MOA should be organized in the nine elements listed below, with 

both a narrative and a documention section for each element.



Section A. Narrative



    The first section of each element should be a narrative description 

of how the State and its recipients, as that term is defined in 29 CFR 

37.4, are meeting and will continue to meet the requirements of part 

37. The narrative should be specific. CRC regards the narrative as the 

more important section, since it contains the description of what the 

State and its recipients are doing and will continue to do to fulfill 

their obligations under WIA section 188 and 29 CFR part 37.



Section B. Documentation



    The second section of each element should include documentation 

that shows how the State is carrying out that element of the MOA. When 

reviewing 



Reference to 65 FR 51985 (AUGUST 25, 2000)




the adequacy of and/or performance under an MOA, CRC may request 

additional supporting documentation pursuant to 29 CFR 37.65. 

Element 1. Designation of State-and local-level Equal Opportunity (EO) 

Officers (29 CFR 37.54(d)(1)(ii))

    In this element, the State should address how it and its recipients 

are complying and will continue to comply with the requirements of 29 

CFR 37.23 through 37.28. The intent of this section is to ensure that 

any individual the recipient appoints as EO Officer has the education, 

training and experience, and is provided the necessary ongoing training 

and qualified staff, to perform his or her duties assigned under 29 CFR 

part 37. Additionally, the EO Officer should not be in a position that 

would constitute, or appear to constitute, a conflict of interest. 

Further, the State should ensure that he or she reports, on EO matters, 

directly to the appropriate official in the organization (see 29 CFR 

37.25(e). In summary, any individual appointed as EO Officer should 

have the skill, ability, knowledge and authority to properly oversee 

and direct the EO program to which that individual has been assigned.

    (a) The narrative section of this element should identify, at a 

minimum:

{time}  Each individual designated as a State-level Equal Opportunity 

Officer and each individual designated as a local-level Equal 

Opportunity Officer, by name, position title, business address 

(including e-mail address if applicable) and telephone number 

(including TDD/TTY number). (See 29 CFR 37.23.)



{time}  The level within the organization (described in such terms as 

the individual's authority and position relative to the top of the 

hierarchy) occupied by the EO Officer(s). (See 29 CFR 37.24.)

{time}  The duties of the EO Officer(s), and the manner in which those 

duties are carried out. (At a minimum, duties assigned to the EO 

Officer must include those listed in 29 CFR 37.25.) Describe both the 

EO duties, responsibilities and activities associated with the 

implementation of 29 CFR part 37, and all other duties, 

responsibilities and activities.



    Note: The EO Officer may not be assigned duties, 

responsibilities or activities that would constitute a conflict of 

interest or the appearance of such a conflict; see 29 CFR 37.24.)



{time}  The manner in which the recipient makes the identity of the EO 

Officer(s) known to applicants, registrants, eligible applicants/

registrants, participants, employees, and applicants for employment, as 

well as interested members of the public. (See 29 CFR 37.26.)

{time}  The level of staff and other resources available to State- and 

local-level EO Officer(s) to ensure that WIA Title I-financially 

assisted programs and activities operate in a nondiscriminatory way. 

(See 29 CFR 37.26(c).)

{time}  The State's plan for ensuring that State- and local-level EO 

Officers and their staffs are sufficiently trained to maintain 

competency. (See 29 CFR 37.26(d).)

{time}  The identity, by name, title and organization, of the 

individual to whom each State- and local-level EO Officer reports on 

equal opportunity matters.

{time}  A description of the professional and support staffing levels 

and resources provided to each State- and local-level EO Officer to 

assist him or her in ensuring compliance with WIA section 188 and part 

37.

{time}  The type and level of training each State- and local-level EO 

Officer has received and will receive to ensure that he or she is 

capable of fulfilling his or her responsibilities as an EO Officer.

{time}  The means by which the State makes public the names, position 

titles and telephone numbers (including TDD/TTY numbers) of each State- 

and local-level EO Officer.

{time}  A description of any duties, other than WIA equal opportunity 

responsibilities, assigned to each State- and local-level EO Officer.



    (b) Documentation for this element to be submitted as part of the 

MOA should include, but need not be limited to:



{time}  Examples of each document (e.g., notices, directives, 

memoranda, letters to community groups, flyers, and relevant pages of 

handbooks and manuals) that communicates, either internally or 

externally, the EO Officer's name and other required information to 

registrants, applicants, eligible applicants/registrants, participants, 

applicants for employment, employees, and interested members of the 

public.

{time}  Examples of each communication (e.g., directives) that 

instructs the State's recipients as to the actions they are to take to 

comply with 29 CFR 37.23 through 28 with regard to EO Officers.

{time}  A copy of the State EO Officer's position description, showing 

those duties specifically related to WIA equal opportunity activities, 

and other duties.

{time}  A representative sample of local-level EO Officer position 

descriptions. NOTE: If a single, standard position description has been 

adopted for all local-level EO Officers, then a single copy of that 

description is sufficient.

{time}  Copies of organization chart(s) showing the organizational 

location of each EO Officer.

{time}  The identity of any staff who perform duties that support WIA 

EO activities (e.g., clerical, data analysis), a position description 

for each such staff member, and average hours per week spent on EO-

related activities by each such staff member (if positions are not 

devoted to WIA equal opportunity activities on a full-time basis).

{time}  EO budget and source of funds.

{time}  Summary of EO-related training that staff (EO staff and others) 

have received and a schedule of EO training to be delivered in the 

future. This may be training delivered by the State- or local-level EO 

Officer to recipient staff, or training delivered to EO Officers or 

recipient staff by outside sources, such as CRC.



Reference to 65 FR 51985-51986 (AUGUST 25, 2000)




Element 2. Notice and Communication (29 CFR 37.54(d)(1)(iii))

    In this element, the State should address how it and its recipients 

are complying and will continue to comply with the requirements of 29 

CFR 37.29 through 37.36. States should ensure the establishment of a 

notice and communication system that makes all registrants, applicants, 

eligible applicants/registrants, applicants for employment, employees 

and interested members of the public aware of both the recipient's 

obligation to operate its programs and activities in a 

nondiscriminatory manner, and the extent of the rights of members of 

these groups to file complaints of discrimination.



    (a) The narrative section of this element should describe, at a 

minimum:



{time}  The methods and frequency of dissemination of the notice, 

including initial dissemination. (See 29 CFR 37.29.)

{time}  The means by which the notice is made available to individuals 

with disabilities. (See 29 CFR 37.31(b).)

{time}  The means by which the State ensures that recipients post the 

notice. (See 29 CFR 37.33.)

{time}  The means by which a copy of the notice is placed in the 

participant's file (see 29 CFR 37.31(a)), or where

the files are maintained electronically, how the requirement of 

37.31(a) is and will continue to be met.

{time}  The means by which the State ensures that recruitment brochures 

and other materials routinely made available to the public include the 

statements ``equal opportunity employer/program'' and ``auxiliary aids 

and services are available upon request to individuals with 

disabilities.'' (See 29 CFR 37.34(a).)

{time}  Where a telephone number is included on recruitment brochures 

and other materials, the means by which the State ensures that the 

materials indicate a TDD/TTY number or provide for an equally effective 

means of communication with individuals with hearing impairments. (See 

29 CFR 37.34(a).)

{time}  The means by which program-related information is published or 

broadcast in the news media (e.g., publication of Requests for 

Proposal) and the means by which the State ensures that publications/

broadcasts state that the program is an equal opportunity employer/

program and that auxiliary aids and services are available upon request 

to individuals with disabilities. (See 29 CFR 37.34(b).)

{time}  The manner in which and extent to which information in 

languages other than English is provided, and the manner in which the 

State ensures that persons of limited English-speaking ability have 

access to its programs and activities on a basis equal to that of those 

who are proficient in English. (See 29 CFR 37.35.)

{time}  The manner in which and extent to which orientations for 

registrants, applicants, eligible applicants/registrants, employees, 

applicants for employment, and members of the public include a 

discussion of the rights of such persons under WIA section 188 and 29 

CFR part 37. (See 29 CFR 37.36.)

{time}  The steps taken to ensure that communications with individuals 

with disabilities are as effective as communications with others. (See 

29 CFR 37.29(b).)

{time}  The process the State has used and will continue using to 

develop and communicate policy and conduct training regarding 

nondiscrimination and equal opportunity. (See 29 CFR 37.25(c), and 

37.54(d)(2)(iii), and 37.54(d)(2)(vi).)



    (b) Documentation for this element to be submitted as part of the 

MOA should include, but need not be limited to:



{time}  A copy of each communication that instructs the State's 

recipients on how they are to comply with the requirements of 37.29 

through 37.36 regarding notice and communication.

{time}  A copy of the posted notice required by 29 CFR 37.29 and 37.30.

{time}  A copy of any checklist of the contents of participant and 

employee files, indicating that the notice requirement has been met. 

(See 29 CFR 37.31(a)(4).)

{time}  A copy of any orientation agendas that include, as an agenda 

item, a discussion of equal opportunity and nondiscrimination under WIA 

section 188 and 29 CFR part 37. (See 29 CFR 37.36.)

{time}  A copy of each item of material, distributed at orientation 

sessions, that addresses the rights of individuals under WIA section 

188 and 27 CFR part 37. (See 29 CFR 37.36.)

{time}  Copies of agendas (and a list of dates) of past and proposed EO 

policy briefings and EO training. (See 29 CFR 37.25(f), 37.26(d) and 29 

CFR 37.54(d)(2)(vi).)

{time}  A copy of each policy issuance or instruction that relates to 

WIA section 188 or 29 CFR part 37. (See 29 CFR 37.25(c), 37.54(d)(iii), 

29 CFR 54(d)(vi) and 37.54(d)(viii).)

{time}  A copy of each recruitment brochure and other item of material 

distributed to the public by a WIA Title I-financially assisted 

recipient, showing that each includes:

{time}  The statements ``equal opportunity employer/program'' and 

``auxiliary aids and services are available upon request to individuals 

with disabilities''; and

{time}  The telephone numbers for TDD/TTY access and/or telephone relay 

services. (See 29 CFR 37.34(a).)



Reference to 65 FR 51986 (August 25, 2000)




Element 5. Compliance with section 504 of the Rehabilitation Act of 

1973, as amended and 29 CFR part 37 (29 CFR 37.54(d)(2)(v))

    In this element, the State should address how it and its recipients 

are complying and will continue to comply with the requirements of the 

disability related requirements of WIA section 188; Section 504 of the 

Rehabilitation Act of 1973, as amended; and their implementing 

regulations, including but not limited to 29 CFR 37.7, 37.8, and 37.9 

and Subparts B and C of 29 CFR Part 32.

    (a) The narrative section of this element should describe, at a 

minimum how the State ensures that recipients:



{time}  Meet their obligation not to discriminate on the basis of 

disability. (See 29 CFR 32.12 (a), 32.26, and 37.7.)

{time}  Provide reasonable accommodation for individuals with 

disabilities (See 29 CFR 32.13 and 29 CFR 37.8);

{time}  Provide reasonable modification of policies, practices and 

procedures, as required (See 29 CFR 37.8);

{time}  Provide architectural accessibility for individuals with 

disabilities (See 29 CFR 32.28); and

{time}  Provide programmatic accessibility for persons with 

disabilities (See 29 CFR 32.27).

{time}  Provide for and adhere to a schedule to evaluate job 

qualifications to ensure that the qualifications do not discriminate on 

the basis of disability. (See 29 CFR 32.14.)

{time}  Limit preemployment/employment medical inquiries to those 

permitted by and in accordance with WIA section 188, Section 504, the 

Americans with Disabilities Act of 1990, and their implementing 

regulations. (See 29 CFR 32.15.)

{time}  Ensure the confidentiality of medical information provided by 

registrants, applicants, eligible applicants/registrants, participants, 

employees, and applicants for employment. (See 29 CFR 32.15.)

{time}  Administer their WIA Title I-financially assisted programs and 

activities so that each individual with a disability participates in 

the most integrated setting appropriate to that individual. (See 29 CFR 

37.7(d).)

{time}  Are able to communicate with persons with disabilities as 

effectively as with others. (See 29 CFR 37.9.)



    (b) Documentation for this element to be submitted as part of the 

MOA should include, but need not be limited to:



{time}  Copies of policies/procedures issued by the State or any of its 

WIA Title I recipients, such as:

{time}  The procedures by which persons with disabilities are assured 

of participation in programs and activities in as integrated setting as 

possible;

{time}  The procedures by which the availability of reasonable 

accommodation and reasonable modification are made known to persons 

with disabilities, and the procedures for making and resolving such 

requests;

{time}  The procedures by which the State ensures that communication 

with persons with disabilities is as effective as communication with 

others; and

{time}  The procedures by which the State ensures that the programs and 

activities operated by its WIA Title I recipients are architecturally 

and programmatically accessible to individuals with disabilities.

{time}  Any evaluation conducted to determine the programmatic or 

architectural accessibility of a WIA Title I-financially assisted 

program or activity and the status of any corrective actions taken by 

the recipient involved.

{time}  Copies of publications and agendas for any training conducted 

for recipient staff that is intended to raise awareness of disability 

issues.



Reference to 65 FR 51987 (AUGUST 25, 2000)




Element 4. Universal Access (29 CFR 37.54(d)(1)(vi)

    In this element, the State should address how it and its recipients 

are complying and will continue to comply with the requirements of 29 

CFR 37.42 relating to the provision of universal access to programs and 

activities.

    (a) The narrative section of this element should describe, at a 

minimum, how:

{time}  The State has communicated the obligation of recipients 

(including, e.g., LWIAs, one-stop operators and service providers) to 

make efforts (including outreach) to broaden the composition of the 

pool of those considered for participation or employment in their 

programs and activities in an effort to include members of both sexes, 

of the various racial and ethnic groups and of various age groups, as 

well as individuals with disabilities.

{time}  Recipients have made and will continue to make efforts to 

broaden the composition of those considered for participation or 

employment in their programs and activities, as described above.

{time}  The State monitors and evaluates the success of recipient 

efforts to broaden the composition of those considered for 

participation and employment in their programs and activities, as 

described above.



    (b) Documentation for this element to be submitted as part of the 

MOA should include, but need not be limited to:



{time}  Copies of targeting, outreach and recruitment plans.

{time}  Criteria for determining priority of service.

{time}  Copies of plans for One-Stop delivery systems to expand the 

pool of those considered for participation or employment in their 

programs and by race/ethnicity, sex, disability status, and age.

{time}  Samples of brochures, posters, public-service announcements, 

computer screens displaying related information, and other publicity 

materials.



Reference to 29 USC 2938




Sec. 2938. Nondiscrimination



(a) In general



                  (1) Federal financial assistance



        For the purpose of applying the prohibitions against 

    discrimination on the basis of age under the Age Discrimination Act 

    of 1975 (42 U.S.C. 6101 et seq.), on the basis of disability under 

    section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), on 

    the basis of sex under title IX of the Education Amendments of 1972 

    (20 U.S.C. 1681 et seq.), or on the basis of race, color, or 

    national origin under title VI of the Civil Rights Act of 1964 (42 

    U.S.C. 2000d et seq.), programs and activities funded or otherwise 

    financially assisted in whole or in part under this Act are 

    considered to be programs and activities receiving Federal financial 

    assistance.



     (2) Prohibition of discrimination regarding participation, 

                          benefits, and employment



        No individual shall be excluded from participation in, denied 

    the benefits of, subjected to discrimination under, or denied 

    employment in the administration of or in connection with, any such 

    program or activity because of race, color, religion, sex (except as 

    otherwise permitted under title IX of the Education Amendments of 

    1972 [20 U.S.C. 1681 et seq.]), national origin, age, disability, or 

    political affiliation or belief.



     (3) Prohibition on assistance for facilities for sectarian 

                      instruction or religious worship



        Participants shall not be employed under this chapter to carry 

    out the construction, operation, or maintenance of any part of any 

    facility that is used or to be used for sectarian instruction or as 

    a place for religious worship (except with respect to the 

    maintenance of a facility that is not primarily or inherently 

    devoted to sectarian instruction or religious worship, in a case in 

    which the organization operating the facility is part of a program 

    or activity providing services to participants).



     (4) Prohibition on discrimination on basis of participant 

                                   status



        No person may discriminate against an individual who is a 

    participant in a program or activity that receives funds under this 

    chapter, with respect to the terms and conditions affecting, or 

    rights provided to, the individual, solely because of the status of 

    the individual as a participant.



         (5) Prohibition on discrimination against certain 

                                 noncitizens



        Participation in programs and activities or receiving funds 

    under this chapter shall be available to citizens and nationals of 

    the United States, lawfully admitted permanent resident aliens, 

    refugees, asylees, and parolees, and other immigrants authorized by 

    the Attorney General to work in the United States.



(b) Action of Secretary



    Whenever the Secretary finds that a State or other recipient of 

funds under this chapter has failed to comply with a provision of law 

referred to in subsection (a)(1) of this section, or with paragraph (2), 

(3), (4), or (5) of subsection (a) of this section, including an 

applicable regulation prescribed to carry out such provision or 

paragraph, the Secretary shall notify such State or recipient and shall 

request that the State or recipient comply. If within a reasonable 

period of time, not to exceed 60 days, the State or recipient fails or 

refuses to comply, the Secretary may--

        (1) refer the matter to the Attorney General with a 

    recommendation that an appropriate civil action be instituted; or

        (2) take such other action as may be provided by law.



(c) Action of Attorney General



    When a matter is referred to the Attorney General pursuant to 

subsection (b)(1) of this section, or whenever the Attorney General has 

reason to believe that a State or other recipient of funds under this 

chapter is engaged in a pattern or practice of discrimination in 

violation of a provision of law referred to in subsection (a)(1) of this 

section or in violation of paragraph (2), (3), (4), or (5) of subsection 

(a) of this section, the Attorney General may bring a civil action in 

any appropriate district court of the United States for such relief as 

may be appropriate, including injunctive relief.



(d) Job Corps



    For the purposes of this section, Job Corps members shall be 

considered as the ultimate beneficiaries of Federal financial 

assistance.



(e) Regulations



    The Secretary shall issue regulations necessary to implement this 

section not later than one year after August 7, 1998. Such regulations 

shall adopt standards for determining discrimination and procedures for 

enforcement that are consistent with the Acts referred to in a \1\ 

subsection (a)(1) of this section, as well as procedures to ensure that 

complaints filed under this section and such Acts are processed in a 

manner that avoids duplication of effort.

---------------------------------------------------------------------------

    \1\ So in original.

---------------------------------------------------------------------------



(Pub. L. 105-220, title I, Sec. 188, Aug. 7, 1998, 112 Stat. 1049.)



Reference to 42 USC 2000(e)

From http://www4.law. cornell.edu/uscode/42/2000e.html


US CODE COLLECTION 

TITLE 42 > CHAPTER 21 > SUBCHAPTER VI > Sec. 2000e.

Sec. 2000e. - Definitions 



For the purposes of this subchapter -



(a)

The term ''person'' includes one or more individuals, governments,

governmental agencies, political subdivisions, labor unions,

partnerships, associations, corporations, legal representatives, mutual

companies, joint-stock companies, trusts, unincorporated organizations,

trustees, trustees in cases under title 11, or receivers.



(b)

The term ''employer'' means a person engaged in an industry affecting

commerce who has fifteen or more employees for each working day in each

of twenty or more calendar weeks in the current or preceding calendar

year, and any agent of such a person, but such term does not include



(1)

the United States, a corporation wholly owned by the Government of the

United States, an Indian tribe, or any department or agency of the

District of Columbia subject by statute to procedures of the competitive

service (as defined in section 2102 of title 5), or



(2)

a bona fide private membership club (other than a labor organization)

which is exempt from taxation under section 501(c) of title 26, except

that during the first year after March 24, 1972, persons having fewer

than twenty-five employees (and their agents) shall not be considered

employers.



(c)

The term ''employment agency'' means any person regularly undertaking

with or without compensation to procure employees for an employer or to

procure for employees opportunities to work for an employer and includes

an agent of such a person.



(d)

The term ''labor organization'' means a labor organization engaged in an

industry affecting commerce, and any agent of such an organization, and

includes any organization of any kind, any agency, or employee

representation committee, group, association, or plan so engaged in

which employees participate and which exists for the purpose, in whole

or in part, of dealing with employers concerning grievances, labor

disputes, wages, rates of pay, hours, or other terms or conditions of

employment, and any conference, general committee, joint or system

board, or joint council so engaged which is subordinate to a national or

international labor organization.



(e)

A labor organization shall be deemed to be engaged in an industry

affecting commerce if



(1)

it maintains or operates a hiring hall or hiring office which procures

employees for an employer or procures for employees opportunities to

work for an employer, or



(2)

the number of its members (or, where it is a labor organization composed

of other labor organizations or their representatives, if the aggregate

number of the members of such other labor organization) is



(A)

twenty-five or more during the first year after March 24, 1972, or



(B)

fifteen or more thereafter, and such labor organization -



(1)

is the certified representative of employees under the provisions of the

National Labor Relations Act, as amended (29 U.S.C. 151 et seq.), or the

Railway Labor Act, as amended (45 U.S.C. 151 et seq.);



(2)

although not certified, is a national or international labor

organization or a local labor organization recognized or acting as the

representative of employees of an employer or employers engaged in an

industry affecting commerce; or



(3)

has chartered a local labor organization or subsidiary body which is

representing or actively seeking to represent employees of employers

within the meaning of paragraph (1) or (2); or



(4)

has been chartered by a labor organization representing or actively

seeking to represent employees within the meaning of paragraph (1) or

(2) as the local or subordinate body through which such employees may

enjoy membership or become affiliated with such labor organization; or



(5)

is a conference, general committee, joint or system board, or joint

council subordinate to a national or international labor organization,

which includes a labor organization engaged in an industry affecting

commerce within the meaning of any of the preceding paragraphs of this

subsection.



(f)

The term ''employee'' means an individual employed by an employer,

except that the term ''employee'' shall not include any person elected

to public office in any State or political subdivision of any State by

the qualified voters thereof, or any person chosen by such officer to be

on such officer's personal staff, or an appointee on the policy making

level or an immediate adviser with respect to the exercise of the

constitutional or legal powers of the office. The exemption set forth in

the preceding sentence shall not include employees subject to the civil

service laws of a State government, governmental agency or political

subdivision. With respect to employment in a foreign country, such term

includes an individual who is a citizen of the United States.



(g)

The term ''commerce'' means trade, traffic, commerce, transportation,

transmission, or communication among the several States; or between a

State and any place outside thereof; or within the District of Columbia,

or a possession of the United States; or between points in the same

State but through a point outside thereof.



(h)

The term ''industry affecting commerce'' means any activity, business,

or industry in commerce or in which a labor dispute would hinder or

obstruct commerce or the free flow of commerce and includes any activity

or industry ''affecting commerce'' within the meaning of the

Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 401 et

seq.), and further includes any governmental industry, business, or

activity.



(i)

The term ''State'' includes a State of the United States, the District

of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake

Island, the Canal Zone, and Outer Continental Shelf lands defined in the

Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.).



(j)

The term ''religion'' includes all aspects of religious observance and

practice, as well as belief, unless an employer demonstrates that he is

unable to reasonably accommodate to an employee's or prospective

employee's religious observance or practice without undue hardship on

the conduct of the employer's business.



(k)

The terms ''because of sex'' or ''on the basis of sex'' include, but are

not limited to, because of or on the basis of pregnancy, childbirth, or

related medical conditions; and women affected by pregnancy, childbirth,

or related medical conditions shall be treated the same for all

employment-related purposes, including receipt of benefits under fringe

benefit programs, as other persons not so affected but similar in their

ability or inability to work, and nothing in section 2000e-2(h) of this

title shall be interpreted to permit otherwise. This subsection shall

not require an employer to pay for health insurance benefits for

abortion, except where the life of the mother would be endangered if the

fetus were carried to term, or except where medical complications have

arisen from an abortion: Provided, That nothing herein shall preclude an

employer from providing abortion benefits or otherwise affect bargaining

agreements in regard to abortion.



(l)

The term ''complaining party'' means the Commission, the Attorney

General, or a person who may bring an action or proceeding under this

subchapter.



(m)

The term ''demonstrates'' means meets the burdens of production and

persuasion.



(n)

The term ''respondent'' means an employer, employment agency, labor

organization, joint labor-management committee controlling

apprenticeship or other training or retraining program, including an

on-the-job training program, or Federal entity subject to section

2000e-16 of this title

Reference to 42 USC 12111

From http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+42USC12111


¤ 12111. Definitions 

As used in this subchapter: 



(1) Commission 

The term `Commission` means the Equal Employment Opportunity Commission

established by section 2000e-4 of this title.



(2) Covered entity 

The term `covered entity` means an employer, employment agency, labor

organization, or joint labor-management committee.



(3) Direct threat 

The term `direct threat` means a significant risk to the health or

safety of others that cannot be eliminated by reasonable accommodation.



(4) Employee 

The term `employee` means an individual employed by an employer. With

respect to employment in a foreign country, such term includes an

individual who is a citizen of the United States.



(5) Employer 

(A) In general 

The term `employer` means a person engaged in an industry affecting

commerce who has 15 or more employees for each working day in each of 20

or more calendar weeks in the current or preceding calendar year, and

any agent of such person, except that, for two years following the

effective date of this subchapter, an employer means a person engaged in

an industry affecting commerce who has 25 or more employees for each

working day in each of 20 or more calendar weeks in the current or

preceding year, and any agent of such person.



(B) Exceptions 

The term `employer` does not include - 



(i) the United States, a corporation wholly owned by the government of

the United States, or an Indian tribe; or

(ii) a bona fide private membership club (other than a labor

organization) that is exempt from taxation under section 501(c) of title

26.



(6) Illegal use of drugs 

(A) In general 

The term `illegal use of drugs` means the use of drugs, the possession

or distribution of which is unlawful under the Controlled Substances Act

(21 U.S.C. 801 et seq.). Such term does not include the use of a drug

taken under supervision by a licensed health care professional, or other

uses authorized by the Controlled Substances Act or other provisions of

Federal law.



(B) Drugs 

The term `drug` means a controlled substance, as defined in schedules I

through V of section 202 of the Controlled Substances Act (21 U.S.C.

812).



(7) Person, etc. 

The terms `person`, `labor organization`, `employment agency`,

`commerce`, and `industry affecting commerce`, shall have the same

meaning given such terms in section 2000e of this title.



(8) Qualified individual with a disability 

The term `qualified individual with a disability` means an individual

with a disability who, with or without reasonable accommodation, can

perform the essential functions of the employment position that such

individual holds or desires. For the purposes of this subchapter,

consideration shall be given to the employer`s judgment as to what

functions of a job are essential, and if an employer has prepared a

written description before advertising or interviewing applicants for

the job, this description shall be considered evidence of the essential

functions of the job.



(9) Reasonable accommodation 

The term `reasonable accommodation` may include - 

(A) making existing facilities used by employees readily accessible to

and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules,

reassignment to a vacant position, acquisition or modification of

equipment or devices, appropriate adjustment or modifications of

examinations, training materials or policies, the provision of qualified

readers or interpreters, and other similar accommodations for

individuals with disabilities.



(10) Undue hardship 

(A) In general 

The term `undue hardship` means an action requiring significant

difficulty or expense, when considered in light of the factors set forth

in subparagraph (B).



(B) Factors to be considered 

In determining whether an accommodation would impose an undue hardship

on a covered entity, factors to be considered include -



(i) the nature and cost of the accommodation needed under this chapter; 

(ii) the overall financial resources of the facility or facilities

involved in the provision of the reasonable accommodation; the number of

persons employed at such facility; the effect on expenses and resources,

or the impact otherwise of such accommodation upon the operation of the

facility;

(iii) the overall financial resources of the covered entity; the overall

size of the business of a covered entity with respect to the number of

its employees; the number, type, and location of its facilities; and

(iv) the type of operation or operations of the covered entity,

including the composition, structure, and functions of the workforce of

such entity; the geographic separateness, administrative, or fiscal

relationship of the facility or facilities in question to the covered

entity.