Appendix A to Subpart C of Part 42 - Federal Financial Assistance Administered by the Department of Justice to Which This Subpart Applies
28:1.0.1.1.43.3.47.13.23 : Appendix A
Appendix A to Subpart C of Part 42 - Federal Financial Assistance
Administered by the Department of Justice to Which This Subpart
Applies Note:
Failure to list a type of Federal assistance in appendix A shall
not mean, if title VI is otherwise applicable, that a program is
not covered.
1. Assistance provided by the Office of Justice Programs (OJP),
the Bureau of Justice Assistance (BJA), the National Institute of
Justice (NIJ), the Bureau of Justice Statistics (BJS), and the
Office of Juvenile Justice and Delinquency Prevention (OJJDP),
including block, formula, and discretionary grants, victim
compensation payments, and victim assistance grants (title I of the
Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C.
3701-3796, as amended (Pub. L. 90-351, as amended by Pub. L. 93-83,
Pub. L. 93-415, Pub. L. 94-430, Pub. L. 94-503, Pub. L. 95-115,
Pub. L. 96-157, and Pub. L. 98-473); the Juvenile Justice and
Delinquency Prevention Act of 1974, 42 U.S.C. 5601-5751, as amended
(Pub. L. 93-415, as amended by Pub. L. 94-503, Pub. L. 95-115, Pub.
L. 96-509, and Pub. L. 98-473); the Victims of Crime Act of 1984,
42 U.S.C. 10601-10604, (Pub. L. 98-473)).
2. Assistance provided by the Bureau of Prisons (BOP) including
technical assistance to State and local governments for improvement
of correctional systems; training of law enforcement personnel, and
assistance to legal services programs (18 U.S.C. 4042).
3. Assistance provided by the National Institute of Corrections
(NIC) including training, grants, and technical assistance to State
and local governments, public and private agencies, educational
institutions, organizations and individuals, in the area of
corrections (18 U.S.C. 4351-4353).
4. Assistance provided by the Drug Enforcement Administration
(DEA) including training, joint task forces, information sharing
agreements, cooperative agreements, and logistical support,
primarily to State and local government agencies (21 U.S.C.
871-886).
5. Assistance provided by the Community Relations Service (CRS)
in the form of discretionary grants to public and private agencies
under the Cuban-Haitian Entrant Program (title V of the Refugee
Education Assistance Act of 1980, Pub. L. 96-422).
6. Assistance provided by the U.S. Parole Commission in the form
of workshops and training programs for State and local agencies and
public and private organizations (18 U.S.C. 4204).
7. Assistance provided by the Federal Bureau of Investigation
(FBI) including field training, training through its National
Academy, National Crime Information Center, and laboratory
facilities, primarily to State and local criminal justice agencies
(Omnibus Crime Control and Safe Streets Act of 1968, as amended 42
U.S.C. 3701-3796).
8. Assistance provided by the Immigration and Naturalization
Service (INS) including training and services primarily to State
and local governments under the Alien Status Verification Index
(ASVI); and citizenship textbooks and training primarily to schools
and public and private service agencies (8 U.S.C. 1360, 8 U.S.C.
1457).
9. Assistance provided by the United States Marshals Service
through its Cooperative Agreement Program for improvement of State
and local correctional facilities (Pub. L. 99-180, 99 Stat.
1142).
10. Assistance provided by the Attorney General through the
Equitable Transfer of Forfeited Property Program (Equitable
Sharing) primarily to State and local law enforcement agencies (21
U.S.C. 881(e)).
11. Assistance provided by the Department of Justice
participating agencies that conduct specialized training through
the National Center for State and Local Law Enforcement Training, a
component of the Federal Law Enforcement Training Center (FLETC),
Glenco, Georgia (Pursuant to Memorandum Agreement with the
Department of Treasury).
[Order No. 1204-87, 52 FR 24449, July 1, 1987]
Appendix A to Subpart D of Part 42 - Commentary
28:1.0.1.1.43.4.47.16.24 : Appendix A
Appendix A to Subpart D of Part 42 - Commentary
Section 42.201(c). The compliance enforcement mechanism
of section 815(c)(2) applies by its terms to State and local
government. The prohibitions in section 815(c)(1), however, apply
to all recipients of OJARS assistance. Accordingly, where a private
entity which has received LEAA, NIJ, or BJS assistance through a
State or local unit of government is determined by OJARS to be in
non-compliance, OJARS will invoke the section 815(c)(2) mechanism
against the appropriate unit of government for its failure to
enforce the assurances of compliance given it by the private
recipient, unless the unit has initiated its own compliance action
against the private recipient. The fund termination procedures of
section 803(a) will be invoked against non-complying private
recipients which receive assistance directly from LEAA, NIJ, or
BJS, or through another private entity.
Section 42.202(g). Section 815(c)(1) of the JSIA limits
suspension and termination of assistance in the event of
noncompliance to the “programs or activity” in which the
noncompliance is found. The phrase “program or activity” was first
used in section 815(c)(1) of the Crime Control Act of 1976, the
substantially identical predecessor to section 815(c)(1).
House Report No. 94-1155 (94th Congress, 2d Session), at p. 26,
explained the provision as follows:
“Suspension may be limited to the specific program or activity
found to have discriminated, rather than all of the recipients'
LEAA funds.
“For example, if discriminatory employment practices in a city's
police department were cited in the notification, LEAA may only
suspend that part of the city's payments which fund the police
department. LEAA may not suspend the city's LEAA funds which are
used in the city courts, prisons, or juvenile justice
agencies.”
This passage makes it clear that OJARS need not demonstrate a nexus
between the particular project funded and the discriminatory
activity. See
Lau v.
Nichols, 414 U.S. 563, 566
(1974).
Sections 42.203(b) and 42.203(e-i). These provisions are
derived from 28 CFR 42.104(b) of subpart C of the Department of
Justice Nondiscrimination Regulations. Where appropriate “sex” and
“religion” have been added as prohibited grounds of discrimination,
and “denial of employment” as another activity within the scope of
section 815(c)(1).
Individual projects benefiting a particular sex, race, or ethnic
group are not violative of section 815(c)(1) unless the granting
agency or the recipient has engaged in a pattern of granting
preferential treatment to one such group, and cannot justify the
preference on the basis of a compelling governmental interest, in
the case of racial or ethnic discrimination, or a substantial
relationship to an important governmental function, in the case of
sex discrimination.
Section 42.203(b)(10). On August 25, 1978, the Department
of Justice, the Equal Employment Opportunity Commission, the
Department of Labor and the then-Civil Service Commission published
the Uniform Employee Selection Guidelines codified at 28 CFR 50.14.
Since OJARS is a component of the Department, these guidelines are
applicable to the selection procedures of LEAA, NIJ, and BJS
recipients. See 44 FR 11996 (March 2, 1979) for a detailed
commentary on the guidelines.
Section 42.203(c). In the Conference Report on section
518(c) of the Crime Control Act (the substantially identical
predecessor of section 815(c)), the managers stated that “In the
area of employment cases brought under this section, it is intended
by the conferees that the standards of title VII of the Civil
Rights Act of 1964 apply.” H. Rept. No. 94-1723 (94th Cong., 2d
Sess.) at p. 32.
This section makes the OJARS standards of employment
discrimination consistent with those used by the Civil Rights
Division of the Department of Justice. It further clarifies that
the burden shifts to the employer to validate its selection
procedures once OJARS has demonstrated that those procedures
disproportionately exclude an affected class. Discriminatory
purpose on the part of the employer, which must be shown before the
burden shifts in a Fourteenth Amendment case such as
Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040
(1976), need not be shown in an employment discrimination case
brought under section 815(c)(1).
Section 42.203(j). Section 815(b) of the JSIA reads:
“Notwithstanding any other provision of law, nothing contained
in this title shall be construed to authorize the National
Institute of Justice, the Bureau of Justice Statistics, or the Law
Enforcement Assistance Administration (1) to require, or condition
the availability or amount of a grant upon the adoption by an
applicant or grantee under this title of a percentage ratio, quota
system, or other program to achieve racial balance in any criminal
justice agency; or (2) to deny or discontinue a grant because of
the refusal of an applicant or grantee under this title to adopt
such a ratio, system, or other program.”
In commenting on the Crime Control Act of 1976, Senator Roman
Hruska of Nebraska explained the difference between quotas and
goals and timetables as follows:
“Section 518(b) [now 815(b)] of the act prohibits the setting of
quotas. This provision was unchanged, and this provision will still
bind the Administration.
“LEAA does have an affirmative obligation under this law to seek
to eliminate discriminatory practices, voluntarily, if possible,
prior to resorting to fund termination. LEAA can request that a
recipient eliminate the effect of past discrimination by requiring
the recipient to commit itself to goals and timetables. The
formulation of goals is not a quota prohibited by section 518(b) of
the act. A goal is a numerical objective fixed realistically in
terms of the number of vacancies expected and the number of
qualified applicants available. Factors such as a lower attrition
rate than expected, bona fide fiscal restraints, or a lack of
qualified applicants would be acceptable reasons for not meeting a
goal that has been established and no sanctions would accrue under
the program.” Cong. Rec. S 17320 (September 30, 1976, daily
ed.).
The Senate Judiciary Committee Report on the JSIA also
emphasized that section 815(b) does not “undercut subsection (c) in
any way; subsection (b) has been interpreted so as not to limit
LEAA's anti-discrimination enforcement capabilities. Indeed, recent
court decisions have made this abundantly clear. See, e.g.,
United States v. City of Los Angeles, No. 77-3460
(C.D. Cal. 2/1/79).” S. Rept. 96-142, p. 57.
See also the Equal Employment Opportunity Commission Affirmative
Action Guidelines, 44 FR 4422 (January 19, 1979).
Section 42.204. All grantees and subgrantees must make
the assurances found in paragraph (a). Only State and local units
of government and agencies thereof must make the assurance found in
paragraph (c), since, as explained in the commentary on §
42.201(c), the enforcement provisions of section 815(c)(2) apply
only to governmental recipients.
Section 42.205(a). Where information available to the
Office clearly and convincingly demonstrates that the complaint is
frivolous or otherwise without merit, the complaint will not be
investigated, and the complainant will be so advised.
Section 42.205(b). A one-year timeliness requirement is
imposed to ensure that OJARS will be devoting its resources to the
resolution of active issues, and to maximize the possibility that
necessary witnesses and evidence are still available.
Examples of good cause which would clearly warrant an extension
of the filing period are a statement from the complainant stating
that he or she was unware of the discrimination until after a year
had passed, or that he or she was not aware that a remedy was
available through OJARS.
Section 42.205(c)(1). Jurisdiction exists if the
complaint alleges discrimination on a ground prohibited by section
815(c)(1), if the recipient was receiving funds at the time of the
discrimination, and the respondent named in the complaint is a
current recipient of LEAA, NIJ, or BJS assistance.
Prior to a determination of noncompliance, OJARS will attempt to
negotiate voluntary compliance only during the 30-day period
following receipt of the Office's preliminary findings, and only at
the request of the recipient, as provided in § 42.205(c)(3). If a
determination of noncompliance is made, OJARS will participate in
voluntary compliance efforts during the 90-day period following the
letter sent to the chief executive(s) under section 42.208.
Sections 42.205(c) (3) and (4) and 42.206(e). OJARS will
notify the appropriate chief executive(s) of its recommendations
during the voluntary resolution phase of both the complaint
investigation and compliance review process. OJARS expects that the
early involvement of the chief executive will often expedite the
resolution of issues.
Section 42.205(c)(5). OJARS will initiate an
investigation if the litigation discussed in this subparagraph
becomes protracted or apparently will not resolve the matter within
a reasonable time.
Section 42.205(c)(6). In order to effectively utilize the
resources of other agencies, and to avoid duplication of effort,
OJARS may request another agency to act on a particular complaint.
OJARS expects this practice to be limited, and will attempt to
ensure that any cooperative agreement reached with another agency
is consistent with the timetables set forth in § 42.205(c).
Section 42.206(a). OJARS recognizes the practical
impossibility of reviewing the compliance of each of its more than
39,000 recipients. The regulations seek to expedite the review
process by reducing its length and narrowing its focus. Compliance
reviews may, in some instances, be limited to specific employment
practices, or other functions of a recipient, that appear to have
the greatest adverse impact on an affected class.
Section 42.206(b). The factors listed will be considered
cumulatively by OJARS in selecting recipients for reviews. OJARS
will consider data from all sources, including information provided
by both internal and external auditors.
Section 42.208(b). Upon receipt of the publications
listed, OJARS will review the case reports for findings that may be
violations of section 815(c)(1). In the case of the West Publishing
Company reporters, OJARS will consult the topic “Civil Rights” in
the Key Number Digests contained in the advance sheets.
Section 42.208(e). This subsection sets forth the minimum
procedural safeguards that OJARS would require of an administrative
hearing to assure the process was consistent with the
Administrative Procedure Act. The sufficiency of other procedures
that may vary in form but insure due process and the same
opportunity for a fair hearing of both parties' evidence will be
determined by OJARS on a case-by-case basis.
The Office will compile a list of State agencies whose
procedures have been found consistent with the Administrative
Procedure Act, and a list of State agencies whose procedures have
been found inconsistent. When a finding of an agency not on either
list is received, the Office will attempt to reliably determine the
procedures used to render the findings.
Section 42.209(a). Although the signature of the
appropriate chief executives are ultimately required on the
compliance agreement, these regulations do not preclude them from
delegating the responsibility for securing compliance during the
90-day period following notification, to State or local
administrative or human rights agencies under their respective
authority. A compliance agreement may be an agreement to comply
over a period of time, particularly in complex cases or where
compliance would require an extended period of time for
implementation.
Section 42.209(b). The regulations require that a copy of
the proposed compliance agreement be sent to the complainant, if
any, before the effective date of the agreement. Although the Act
would permit a copy to be sent as late as the effective date, OJARS
believes the compliance agreement would be more likely to resolve
all concerns and discourage litigation if the complainant's views
were considered before it took effect.
Section 42.211(b). An example of a case where compliance
would require an extended period of time for implementation would
be a court order setting a goal of five years for an employer to
raise the percentage of minorities in its workforce to parity with
the percentage of minorities in the relevant geographical labor
force.
Section 42.213. The full hearing will be conducted in
accordance with JSIA Hearing and Appeal Procedures, 28 CFR 18.1,
et seq.
Section 42.215(a). In a December 20, 1976 letter to the
Administrator of LEAA, Congressman Peter Rodino, Chairman of the
House Judiciary Committee, commented on the regulations proposed to
implement the substantially identical nondiscrimination provisions
of the Crime Control Act. He advised the Administrator that “the
committee intentionally omitted the word ‘refer’ from the law to
ensure that LEAA would always retain administrative jurisdiction
over a complaint filed with them. It is not appropriate for LEAA to
refer cases to the Civil Rights Division or other Federal or State
agencies without monitoring the case for prompt resolution.”
Section 42.215(c)(2). The exhaustion of administrative
remedies at the end of 60 days (unless the Office has made a
determination) does not limit OJARS' authority to investigate a
complaint after the expiration of that period. OJARS will continue
to investigate the complaint after the end of the 60-day period, if
necessary, in accordance with the provisions of § 42.205.